Allahabad High Court
Sonu Nishad vs State Of U.P. And Another on 18 June, 2020
Author: Rajendra Kumar-Iv
Bench: Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 2 Case :- CRIMINAL REVISION No. - 108 of 2020 Revisionist :- Sonu Nishad Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Mohd. Shoeb Khan Counsel for Opposite Party :- G.A.,Hari Narayan Singh Hon'ble Rajendra Kumar-IV,J.
1. Heard Mohd. Shoeb Khan, learned counsel for the revisionist, Sri Hari Narayan Singh, learned counsel for the respondent no. 2 and learned A.G.A. for the State.
2. Record reveals that bail of juvenile-revisionist, namely, Sonu Nishad involved in Case No. 112 of 2019, under Sections 302, 201 I.P.C. and 3(2)5 S.C./S.T. Act, 2012, P.S. Tiwaripur, District Gorakhpur has been rejected by Juvenile Justice Board, Gorakhpur vide judgement and orders dated 24.9.2019.
3. Appeal there-against have also been dismissed vide judgement and order dated 6.12.2019 passed by Special Judge, Special Court (S.C./S.T. Act), Gorakhpur in Criminal Appeal No. 132 of 2019.
4. Both the orders of Courts below are impugned in the present criminal revisions.
5. Learned counsel for the juvenile-revisionist contended that the Juvenile-revisionist has been falsely implicated in the present case. No offence against the juvenile-revisionist is made out and the present prosecution has been instituted with a malafide intention for the purposes of harassment. The juvenile-revisionist is in custody since 4.6.2019 having no criminal history. It is further submitted that although revisionist is named in F.I.R. but F.I.R. has been lodged after a delay of 20 days from the incident when dead body is recovered near the river. As per post mortem report, only one contusion found on the person of deceased due to which death caused. There is no eye witness of the incident. It is a case of circumstantial evidence. It is further contended that juvenile-revisionist was aged about 16 years at the time of incident. He was declared juvenile by Juvenile Justice Board and order of Juvenile Justice Board has become final as there was no appeal or revision. It is further submitted that nobody has seen the juvenile causing death of deceased. It is also submitted that rejection of bail can only be made when requirement under Section 12 of the Act is fulfilled and merit of the case cannot be taken into consideration.
6. Per contra, learned counsel for the respondent no. 2 and learned A.G.A. appearing for State opposed the prayer for bail and supported the judgements of Courts below by submitting that the juvenile was the friend of deceased. Certainly it is a case of no eye witness but during investigation I.O. collected evidence and witnesses have seen the juvenile going with the deceased, therefore, it is the case of last seen. It is further submitted that juvenile was seen talking on mobile that he has finished the deceased.
7. As per prosecution story, one Parashuram Gautam, father of deceased Kishun @ Shailesh lodged an F.I.R. bearing Case Crime No. 112 of 2019 on 14.3.2019 in the police station concerned alleging that his son Kishun @ Shailesh aged about 16 years lived in the house of his Mausa and worked as labour. On 21.2.2019 at about 3:00 P.M. Bablu and Sonu took him anywhere and threw his body, causing his death. F.I.R. further recites that in belief of complainant, his son was murdered by Bablu and Sonu. The matter was investigated by Investigating Officer who after completing formalities of investigation submitted charge sheet against the juvenile-revisionist and other.
8. Evidently, juvenile revisionist was 16 years of age and he was declared as juvenile by Juvenile Justice Board and order has not been challenged by any of the parties thereby become final.
9. As per settled legal position, merit of case cannot be taken into consideration at the time of disposal of bail it can only be dismissed on the ground envisaged under the provision of Section 12 of the Act.
10. There is nothing on record to show the circumstances in which bail of juvenile can be dismissed. as per report of Probation Officer, status of family of juvenile is general. He could not study due to poverty.
11. Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides the provisions as to when bail to a juvenile can be refused.
"12 Bail of Juvenile.--(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is 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 institution or fit person but he shall not be so released if there appears reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
(2) When such person having been arrested is not released on bail under sub-section (1) by the officer in-charge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under sub-section(1) by the Board, it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of inquiry regarding him as may be specified in the order."
12. In view of the aforesaid provision, the bail application of the juvenile can be rejected only on the existence of the aforementioned grounds enumerated in Section 12 of the Juvenile Justice Act.
13. Apart from it, in the case of Amit Kumar Vs. State of U.P. [2010 (71) ACC 209 (Alld)] and Naurang (minor) Vs. State of U.P. [2010 (71) ACC 255 (Alld), this Court has observed that seriousness of offence is no ground to reject the bail to a juvenile.
14. Considering the entire facts and circumstances of the case and rival contention of learned counsel for the parties as well as perusal of records available on file, report of Probation Officer, there is no ground so as to justify the rejection of bail of juvenile under Section 12 of the said Act, therefore, the revision deserve to be allowed and are accordingly allowed and the impugned orders are hereby set aside.
15. Let juvenile-revisionist - Sonu Nishad involved in the aforesaid case crime be released on bail in the custody of his mother on her furnishing a personal bond and two sureties before the Juvenile Justice Board concerned to its satisfaction and to file an undertaking that she will look after the juvenile-revisionist carefully and will not let involve in any criminal case or associate with known or known criminals and shall produce him when and wherever, as directed, before Juvenile Justice Board or any other Court.
Order Date :- 18.6.2020 Manoj