Allahabad High Court
Pradeep Kumar Vishwakarma vs State Of U.P. on 26 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 1028, 2019 (6) ALJ 143 (2019) 109 ALLCRIC 73, (2019) 109 ALLCRIC 73
Author: Pradeep Kumar Srivastava
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 80 A.F.R. Case :- CRIMINAL APPEAL No. - 3526 of 2018 Appellant :- Pradeep Kumar Vishwakarma Respondent :- State Of U.P. Counsel for Appellant :- Arvind Kumar Maurya Counsel for Respondent :- G.A.,Ashok Kumar Singh Hon'ble Pradeep Kumar Srivastava,J.
1. Supplementary affidavit filed today by learned counsel for the appellant is taken on record.
2. Heard learned counsel for the appellant, learned counsel for the complainant, learned A.G.A. and perused the record.
3. This criminal appeal has been preferred against the impugned judgment and order dated 22.05.2018, passed by Special Additional Sessions Judge, Court No. 1, Bhadohi, Gyanpur, in S.T. No. 82 of 2018, whereby the Criminal Misc. Bail Application No. 187 of 2018, under Section 12 of the Juvenile Justice (Care & Protection of Children) Act, 2015, arising out of Case Crime No. 153 of 2017, under Sections 302 I.P.C., Police Station Aurai, District Bhadohi, of the juvenile Pradeep Kumar Vishwakarma had been rejected.
4. Feeling aggrieved by the aforesaid order, the accused-appellant has challenged the same on the basis that the order passed by the trial court is bad in the eye of law and against the evidence on record. There was no reasonable apprehension that on being released on bail, there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or it will expose him to moral, physical or psychological danger and his release defeats the end of justice. The order is not sustainable in the eyes of law and is liable to be set aside directing the release of the accused-appellant in favour of appellant's mother namely Smt. Manju Devi.
5. From perusal of the order dated 09.03.2018, passed by Juvenile Justice Board, Bhadohi, it is clear that on the basis of High School Certificate of the juvenile, his age was determined on the date of incident to be 17 years 11 months and 14 days, which is less than 18 years. It is also clear from the order dated 23.03.2018, passed by Juvenile Justice Board that finding the juvenile in view of his apology to commit offence and consequences of attack, the juvenile justice board has transferred the case to the children court for trial of juvenile like adult.
6. Learned A.G.A. as well as the learned counsel for the complainant have vehemently opposed and have contended that the learned trial court has rightly rejected the bail application of the accused-appellant as there is sufficient evidence against the present accused-appellant. They have also submitted that in the statement of the informant, the father of the deceased recorded under Section 161 Cr.P.C., wherein he has stated that the juvenile used to tease his daughters and on being prevented many times, due to enmity, on the date of marriage of his two daughters, the accused-appellant had committed the murder of the deceased.
7. In the supplementary affidavit, the postmortem report of the deceased has been filed and from perusal of the same, it appears that the deceased died due to strangulation. The ligature mark was found around his neck. It is strange that in the first information report, it has been written that when the informant reached on the place of occurrence, he found his son lying blood stained on the surface and he saw the juvenile running away from the place of occurrence. The first information report version appears to be contradictory to the postmortem report in which neither any injury has been mentioned nor bleeding was found. Why this fact was mentioned in the first information report could be seen on the merits when the evidence of the parties will be recorded. But at this stage, the fact of immediately reaching of the informant on the spot appears to be suspicious in view of the postmortem report.
8. Provision has been made under Section 12 of the Act that when any person accused of a bailable or a non-bailable offence and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution except when :-
1. if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or;
2. that it will expose him to moral, physical or psychological danger, or;
3. that his release would defeat the ends of justice.
9. It has been held by the supreme court in Dr. Subramaniam Swamy vs Raju, 2014 (86) ACC 637 that a juvenile has to be released on bail unless the court has a reasonable ground to believe that his release will bring him into association of some known criminal, or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice.
10. Section 15 of the Amending Act only provides for transfer of a juvenile to the Children Court for trial as an adult. Where the child has attained the age of 16 years and has been alleged to have committed heinous offence, the JJ Board is required to conduct a preliminary inquiry with regard to his mental and physical capacity to commit offence, ability to understand the consequence of the offence and the circumstances in which the offence was committed considering their physical, psychological and mental status in commission of crime. Section 18(3) of the Act provides that after making the assessment under section 15, JJ Board comes to a conclusion that there is a need for trial of the child as an adult, the Board may pass an order for the transfer of the trial of the case to the Children Court.
11. It is pertinent to mention here that Section 12 of the Juvenile Justice (Care and Protection of Children) Act has not been amended so far as the parameters and yardstick for granting bail to the juvenile-accused is concerned. Therefore, while rejecting the bail application of such juvenile, it cannot be the criteria that the alleged offence is of serious and heinous nature. The order must show that the grant of bail to the juvenile-accused is against his interest as there is possibility of his being associated with known criminals, or there is some short of moral, physical or psychological danger to him or there is likelihood of end of justice being defeated. All these conditions have been incorporated in law in order to ensure justice to the juvenile.
12. In view of the above, I find perversity and illegality in the impugned order, therefore, the same is liable to be set aside.
13. The appeal is allowed and the impugned order dated 22.05.2018, passed by Special Additional Sessions Judge, Court No. 1, Bhadohi, Gyanpur, in Criminal Misc. Bail Application No. 187 of 2018, arising out of Case Crime No. 153 of 2017, under Sections 302 I.P.C., Police Station Aurai, District Bhadohi, is set aside.
14. The juvenile, accused-appellant namely Pradeep Kumar Vishwakarma be released on bail and he be given in the custody of the mother guardian namely Smt. Manju Devi on her filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian mother Smt. Manju Devi shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. She will also give an undertaking that on being so released on bail, the accused-appellant namely juvenile Pradeep Kumar Vishwakarma will not however indulge in commission of any crime and she will ensure his presence during trial before the court whenever so required by court.
15. Office is directed to transmit the certified copy of this order to the court concerned for information and its necessary compliance.
Order Date :- 26.4.2019 sailesh