Allahabad High Court
Nakul Kumar @ Nakul vs State Of U.P. And Another on 15 June, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 66 Case :- CRIMINAL REVISION No. - 2391 of 2019 Revisionist :- Nakul Kumar @ Nakul Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Uttam Singh,Dharm Jeet Singh,Hari Bans Singh Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
1. This Revision is directed against an order of Sri Pramod Kumar Srivastava-II, the then Additional Sessions Judge, Court no.1, Ballia, dated 18.05.2019 passed in Criminal Appeal no.21 of 2019, dismissing the said appeal and affirming an order of the Juvenile Justice Board, Ballia, dated 10.04.2019, rejecting the revisionist's bail plea in Misc. Case no.11 of 2019, arising out of Case Crime no.515 of 2018, under Sections 147, 148, 149, 323, 504, 506, 304, 308 IPC, P.S. Kotawali, District Ballia.
2. It appears that there are general allegations of assault against unknown offenders in the FIR lodged by Neeraj Dixit on 18.12.2018. He has said in the FIR that in the night of 17/18.12.2018 at about 12 O' clock, 6 - 7 persons armed with sticks (danda, hockey stick and rod) came over to his shop and inquired about his whereabouts. The informant's uncle, Guddan Tiwari informed those unwelcome visitors that the revisionist was away. Thereupon, the assailants hurling abuses, beat up his uncle and struck him employing the weapons they were carrying. Upon call for rescue, the neighbouring shop keepers intervened and dissipated the assault. Guddan Tiwari was taken to Hospital, where he succumbed to his injuries. It transpires that in the statement of the informant under Section 161 Cr.P.C. recorded soon after the FIR also, no one was named. However, in the statement that was recorded under Section 161 Cr.P.C. 15 days later, the name of the revisionist and the other co-accused, numbering a total of seven, was disclosed.
3. It is pointed out by the learned Counsel for the revisionist that amongst the seven assailants who have been brought in through the supplementary statement of the informant, recorded under Section 161 Cr.P.C. four are adults, whereas three of them are juveniles, including the revisionist. The revisionist was a child aged 15 years 8 months and 9 days on the date of occurrence. This fact has not been disputed by the learned A.G.A. It is further pointed out by the learned Counsel for the revisionist that all the four adult-accused, that is to say, Shiv Gupta, Amit Giri @ Golu, Vikas Kumar @ Vikki Rathaur and Amit Kumar Pawar have been admitted to bail by this Court vide orders dated 28.03.2019, 13.03.2019 and 21.02.2019 passed in Criminal Misc. Bail Applications nos.12554 of 2019, 10259 of 2019 and 7564 of 2019 respectively.
4. The submission of the learned Counsel for the revisionist is that once on identical facts accused, who are adults, have been granted bail, it would be travesty of justice to hold in institutional incarceration, the accused who are children in conflict with law, with no different allegations than those against the adult accused. He submits that incarceration for the revisionist who is a juvenile while the adult accused have been granted bail, would also be discriminatory.
5. Learned A.G.A. has supported the orders impugned, but does not dispute the fact that the adult accused have been granted bail by this Court on their bail applications under Section 439 Cr.P.C.
6. This Court has keenly considered the rival submissions. Apart from other things that are specific to the case of the revisionist and the special rights that he has in relation to bail unless his case falls in one or the other exceptions envisaged under the proviso to sub-Section (1) of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, the Act), there is a plea of discrimination urged on his behalf. The submission of the learned Counsel for the revisionist is that holding the juvenile in institutional incarceration whereas the adult accused, against whom there are identical allegations, have been admitted to bail, would work hostile discrimination against the revisionist. This requires serious consideration. Section 12 of the Act is extracted below:
"Section 12- Bail to a person who is apparently a child alleged to be in conflict with law (1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person:
Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.
(2) When such person having been apprehended is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.
(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."
7. The proviso to sub-Section (1) of Section 12 is a special provision designed to ensure bail to a juvenile or a child in conflict with law where an identically circumstanced adult is not entitled. The purpose of the aforesaid proviso is not to circumscribe a child's liberty with additional clogs which a similarly situate adult accused would not subject to. In other words, if an adult accused and a child have the same role and the adult accused is found entitled to bail, the proviso to sub-Section (1) of Section 12 of the Act, cannot be read in a manner so as to disentitle the child to the liberty of bail. If the provision was to be construed in the manner that a child would have added hurdles to overcome in order to win his liberty of bail, it might expose the provision to attack about its constitutionality on the ground of invidious discrimination.
8. I have considered this question in Dharmendra (Juvenile) vs. State of U.P. and others, 2018 (7) ADJ 864, where it is held:
"10. The matter can be looked at from another vantage. In case the revisionist were an adult and stood charged of the offence that he faces with a weak circumstantial evidence of last seen and confession to the police, in all probability, it would have entitled him to bail pending trial. If on the kind of evidence forthcoming an adult would be entitled to bail, denying bail to a child in conflict with law may be denying the juvenile/ child in conflict with law the equal protection of laws guaranteed under Article 14 of the Constitution.
11. The rule in Section 12(1) of the Act is in favour of bail always to a juvenile/ child in conflict with law except when the case falls into one or the other categories denial contemplated by the proviso. It is not the rule about bail in Section 12 of the Act that in case a child in conflict with law is brought before the Board or Court, his case is not to be seen on merits prima facie about his complicity at all for the purpose granting him bail; and all that has been done is to see if his case falls is one or the other exceptions, where he can be denied bail. The rule in Section 12 sanctioning bail universally to every child in conflict with law presupposes that there is a prima facie case against him in the assessment of the Board or the Court based on the evidence placed at that stage. It is where a case against a child in conflict with law is prima facie made out that the rule in Section 12(1) of the Act that sanctions bail as a rule, except the three categories contemplated by the proviso comes into play. It is certainly not the rule, and, in the opinion of the Court cannot be so, that a case on materials and evidence collected not being made out against a child at all, his case has to be tested on the three parameters where bail may be denied presuming that a prima facie case is constructively there. Thus, it would always have to be seen whether a case prima facie on merits against a child in conflict with law is there on the basis of material produced by the prosecution against him. If it is found that a prima facie case on the basis of material produced by the prosecution is there that would have led to a denial of a bail to an adult offender, in that case also the Rule in Section 12(1) of the Act mandates that bail is to be granted to a juvenile/ child in conflict with law except where his case falls into any of the three disentitling categories contemplated by the proviso.
12. In the opinion of this Court, therefore, the perception that merits of the case on the basis of prima facie evidence is absolutely irrelevant to a juvenile's bail plea under the Act would not be in conformity with the law. The catena of decisions that speak about merits of the case or the charge against a juvenile being irrelevant, proceed on facts and not an assumption that a case on merits is made out, and, not where the case is not at all made out prima facie. It is not that a child alleged to be in conflict with law against whom there is not iota of evidence to connect him to the crime would still have bail denied to him because his case may be placed in or the other disentitling categories under the proviso to Section 12(1) of the Act. If this kind of a construction were to be adopted it might expose the provisions of Section 12(1) of the Act to challenge on ground of violating the guarantee of equal protection of laws enshrined in Article 14 of the Constitution. It is an enduring principle that a construction that lends a statute to challenge about its constitutionality should be eschewed and one that saves and upholds its vires is to be adopted. In this context the guidance of their Lordships of the Hon'ble Supreme Court in Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 may be referred to:-
"51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of 'litera legis'. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution."
9. In the facts of the present case, there is no quarrel that the role of all the accused is identical. The four adult accused, to wit, Shiv Gupta, Amit Giri @ Golu, Vikas Kumar @ Vikki Rathaur and Amit Kumar Pawar have all been admitted to bail by this Court, a fact about which there is no quarrel. This Court does not find any justification to undertake further inquiry with reference to the proviso to sub-Section (1) of Section 12 of the Act, to find out in these circumstances, whether the revisionist is disentitled to bail under one or the other category. Even if the revisionist were disentitled under one or the other contingencies envisaged in the proviso to sub-Section (1) of Section 12 of the Act, the adult offenders, whose case is at par with the revisionist, being found entitled to bail, there is absolutely no justification to fetter the revisionist's liberty merely because he is a child in conflict with law. It would be a great travesty of justice to read the provision that way and hold that the revisionist is liable to suffer institutional incarceration in a situation where an adult at par is entitled to the liberty of bail.
10. In the result, this revision succeeds and is allowed. The impugned order dated 18.05.2019 passed by the learned Additional Sessions Judge, Court no.1, Ballia in Criminal Appeal No.21 of 2019 and the order dated 10.04.2019 passed by the Juvenile Justice Board, Ballia in Misc. Case no.11 of 2019, arising out of Case Crime no.515 of 2018, under Sections 147, 148, 149, 323, 504, 506, 304, 308 IPC, P.S. Kotawali, District Ballia, rejecting the revisionist's bail plea, are hereby set aside and reversed. The bail application made on behalf of the revisionist before the Board through his father stands allowed.
11. Let the revisionist, Nakul Kumar @ Nakul through his natural guardian/ father Somnath Ram @ Shobhanath Ram, be released on bail in Case Crime no.515 of 2018, under Sections 147, 148, 149, 323, 504, 506, 304, 308 IPC, P.S. Kotawali, District Ballia upon his father furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Ballia subject to the following conditions:
(i) that the natural guardian/ father Somnath Ram @ Shobhanath Ram will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the father will ensure that the juvenile will not repeat the offence.
(ii) The revisionist and his father Somnath Ram @ Shobhanath Ram will report to the District Probation Officer on the first Monday of every calendar month commencing with the first Monday of July, 2020 and if during any calendar month the first Monday falls on a holiday, then on the following working day.
(iii) The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Ballia on such periodical basis as the Juvenile Justice Board may determine.
(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(v) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(vi) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date:- 15.6.2020 Anoop