Allahabad High Court
Revisionist Is Minor-'V' Son Of 'X' ... vs State Of U.P. Thru. Prin. Secy. Home ... on 19 October, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 27 Case :- CRIMINAL REVISION No. - 486 of 2022 Revisionist :- Revisionist Is Minor-'V' Son Of 'X' Thru. His Mother-'D' Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Revisionist :- Sumit Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Ajai Kumar Srivastava-I,J.
Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.
The instant Criminal Revision is directed against the order dated 13.04.2022 passed by learned Special Judge (POCSO) Act, Pratapgarh in Criminal Appeal No.10 of 2022 (Minor Juvenile-V vs. State of U.P.), whereby dismissed the appeal preferred by the revisionist and confirming the impugned order dated 08.02.2022 passed by learned Juvenile Justice Board, Pratapgarh whereby the bail application no.08/2022 moved by the revisionist in Case No.124 of 2021, arising out of Case Crime No.247 of 2021, under Sections 302, 307, 34 I.P.C. and Section 3 (2) 5A, 3 (2) 5 of SC/ST Act, Police Station Kotwali Nagar, District Pratapgarh has been rejected.
As per office report dated 23.09.2022, notice upon opposite party no.2 has been served personally. However, none appeared on behalf of the opposite party no.2.
Learned counsel for the revisionist submits that the first information report came to be lodged against unknown person in respect of blind murder of husband of first informant. The alleged murder is said to have occurred in the intervening night of 18/19.03.2021. His further submission is that even in her statement recorded under Section 161 Cr.P.C., the first informant did not name of present revisionist. However, the name of present revisionist and other accused persons came to light vide memo of arrest dated 20.03.2021 wherein it is stated that the revisionist also made confession of his guilt to the police personnel after his arrest. It is further submitted by learned counsel for the revisionist that no incriminating articles/weapons of assault were recovered either from the possession of the revisionist or at his pointing out.
Learned counsel for the applicant has drawn attention of this Court to the fact that the co-accused, Jai Prakash Yadav and Rahul Pal, who are major, have already been granted bail, vide order dated 19.08.2021 and 17.02.2022 passed by a Co-ordinate Bench of this Court in Criminal Appeal No.1004 of 2021 and Criminal Appeal No.1059 of 2021 respectively.
Learned counsel for the revisionist has further submitted that the revisionist hails from a family who have no criminal history. His further submission is that both the courts below have been swayed by the alleged seriousness of the offence, whereas for the purposes of enlarging the revisionist on bail under proviso to Section 12(1) of The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as Act of 2015) is significant, which has been overlooked by the court below, therefore, impugned judgment and orders are not sustainable in the eyes of law. He has further submitted that revisionist is confined in the Children Reformatory Home since 20.03.2021. The only three years institutional incarceration is permissible for a juvenile, under Section 18(1)(g) Act of 2015.
In particular, the learned Counsel for the revisionist has drawn the attention of the Court to the social investigation report, which clearly shows that the revisionist belongs to a poor family with no criminal record and no disentitling facts.
Per contra, learned A.G.A. has opposed the prayer by submitting that the revisionist though a juvenile in conflict with law, is a budding criminal. He is involved in an offence which has serious adverse societal impact. However, he has been unable to dispute the fact that the co-accused, Jai Prakash Yadav and Rahul Pal have already been granted bail, vide order dated 19.08.2021 and 17.02.2022 passed by a Co-ordinate Bench of this Court in Criminal Appeal No.1004 of 2021 and Criminal Appeal No.1059 of 2021 respectively.
It is submitted by the learned A.G.A. that the revisionist's case falls under the disentitling contingencies postulated under the proviso to Section 12(1) of the Act of 2015. However, he could not dispute the fact that the social investigation report dated 01.02.2022 does not disclose existence of any disentitling facts.
This Court has keenly considered the rival submissions and perused the records.
The revisionist was declared a juvenile vide order dated 15.12.2021 passed by Juvenile Justice Board, Pratapgarh in the aforesaid case and he was held to be a juvenile, aged about 15 years and 7 months on the date of occurrence and this fact remains undisputed.
Bail can be denied to a juvenile in the circumstances enumerated under the proviso to Section 12(1) of the Act of 2015. Section 12 reads:
"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 sub-section (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."
From the perusal of the F.I.R. and the overall facts and circumstances of the present case, it is revealed that the revisionist had no criminal history prior to the present case. His family members too have no criminal history. A perusal of the social investigation report dated 01.02.2022 also clearly projects that the revisionist belongs to a poor family with no criminal record and no disentitling facts. The entire report does not indicate any credible fact or factor which brings the case of the revisionist in any of the three disentiteling reasons postulated under the proviso to Section 12(1) of the Act of 2015.
A perusal of the impugned orders passed by the Juvenile Justice Board and court below show that the both courts below have been swayed by the fact that the nature of offence is heinous and therefore, they have concluded that the case of revisionist falls in the three disentitling exceptions postulated under under the proviso to Section 12(1) of the Act of 2015. This Court in the case of Shiv Kumar alias Sadhu vs. State of U.P. 2010 (68) ACC 616 (LB) has held that the gravity of the offence is not relevant consideration for refusing grant of bail to the juvenile. There is nothing on record which substantiates the aforesaid findings/conclusion of the courts below. The aforesaid finding of the courts below is thus, based on surmises and conjunctures only.
In view of the overall facts and circumstances of the case and the mandate of the proviso to Section 12(1) of the Act of 2015, this Court is of the considered opinion that there is nothing on record on the basis of which it can be inferred that the revisionist's case is one that falls into any of three exceptions postulated under the proviso to Section 12(1) of the Act of 2015. The courts below have acted with material irregularity.
The instant revision, thus, deserves to succeed for the reasons mentioned hereinabove.
In the result, the instant criminal revision succeeds and is allowed. The impugned order dated 13.04.2022 passed by learned Special Judge (POCSO) Act, Pratapgarh in Criminal Appeal no.10 of 2022 and order dated 08.02.2022 passed by learned Juvenile Justice Board, Pratapgarh in bail application no.08/2022 in Case No.124 of 2021, arising out of Case Crime No.247 of 2021, under Sections 302, 307, 34 I.P.C. and Section 3 (2) 5A, 3 (2) 5 of SC/ST Act, Police Station Kotwali Nagar, District Pratapgarh, are hereby, set aside and reversed. The bail application of the revisionist stands allowed.
Let the revisionist through his natural guardian/mother be released on bail in in Case No.124 of 2021, arising out of Case Crime No.247 of 2021, under Sections 302, 307, 34 I.P.C. and Section 3 (2) 5A, 3 (2) 5 of SC/ST Act, Police Station Kotwali Nagar, District Pratapgarh upon his natural guardian father/mother furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Fatehpur subject to the following conditions:
(i) that the natural guardian mother/father 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 mother will ensure that the juvenile will not repeat the offence.
(ii) The revisionist and his natural guardian will report to the District Probation Officer on the first Monday of every calendar month, commencing with the first Monday of November, 2022 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, Pratapgarh on such periodical basis as the Juvenile Justice Board may determine.
Order Date :- 19.10.2022 Mahesh