Allahabad High Court
Mohammad Hasan Alias Ali Hasan (Minor) ... vs State Of U.P. & Anr. on 5 January, 2021
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 20 Case :- CRIMINAL REVISION No. - 176 of 2019 Revisionist :- Mohammad Hasan Alias Ali Hasan (Minor) Thru. His Mother Opposite Party :- State Of U.P. & Anr. Counsel for Revisionist :- Mohd.Mateen,Amar Singh,Dinesh Kr. Chaudhary,Noorjahan,Om Prakash Misra Counsel for Opposite Party :- Govt. Advocate,Sudhir Kumar Singh Hon'ble Manish Mathur,J.
Heard learned counsel for revisionist, learned A.G.A. appearing on behalf of State-opposite party No.1 And Mr. Sudhir Kumar learned counsel for opposite party No.2 Revision has been filed against order dated 17.1.2019 passed by Additional Session Judge Ist/ Special Judge P.C.S.O. Act, Room No.1, Balrampur in Appeal No. 11 of 2018 as well as against the order dated 19.11.2018 passed by Juvenile Justice Board, Balrampur in inquiry No.29 of 2018, case crime No. 207 of 2018, under Section 324, 302 IPC, P.S. Kotwali Utraula, District Balrampur, State versus Mohd. Hasan alias Ali Hasan.
Preliminary objections regarding amendment application filed on behalf of opposite party No.2 are taken on record.
Learned counsel for revisionist submits that initially the first information report was lodged against the revisionist on 7th August, 2018 under Section 324 IPC, which was later on converted to Section 302 IPC. It is submitted that the revisionist is a minor whose age at the time of alleged incident is 13 years 3 months and 30 days. It is submitted that the averments made in the F.I.R. that the revisionist attacked the deceased Mohd. Mustafa Raza aged about 25 years with a knife, subsequently causing his death only account of price being asked for the books purchased by revisionist, is false and fabricated and that the revisionist has been falsely implicated with the charges. It is further submitted that as per the report of District Probation Officer, there is nothing to the detriment of the revisionist whose behaviour and family back ground have been considered normal. The report further states that even as per the statements of neighbours and other villagers, there is no objection to the revisionist being enlarged on bail.
Learned counsel has also submitted that the revisionist is in custody since 20.8.2018 and even as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 20015, the maximum sentence which can be awarded to revisionist being a juvenile under the age of 16 years is only three years. As such it is submitted that without any conviction by a court of competent jurisdiction, the revisionist has already been in custody for more than two and half years with only six months remaining for the entire sentence. Learned counsel further submits that the entire purpose of trial would be frustrated in case the revisionist is compelled to enure the entire period of sentence without any conviction, which would also against his rights under Article 21 of the Constitution of India.
Learned counsel has relied upon the judgment rendered by High Court of Rajasthan in the case of Prakash versus State of Rajasthan reported in (2006) 3 ALJ 61 as well as judgment rendered by this Court in the case of Sanjay Chaurasia versus State of U.P. reported in 2006 Criminal Law Journal 2957.
Learned counsel appearing on behalf of opposite parties have strenuously opposed the bail application on the ground that seriousness of the offence is a material factor to be considered while deciding the grant of bail to a juvenile as is contemplated under Section 12 of the Act. It is submitted that in the present case, the revisionist has decidedly participated in a heinous crime resulting in the death of Mohd. Mustafa Raza. It is submitted that the act of revisionist was without provocation and indicates the criminal mindset of the revisionist. Learned counsel has also drawn attention to the report of District Probation Officer with the submission that the report clearly indicates a negative effect of parental guidance upon the revisionist. Learned counsel further submits that except for the revisionist's mother, there is no parental guidance since the revisionist's father is seriously ill. Learned counsel has relied upon the judgment rendered in the case of Monu versus State of U.P. and another (criminal revision No.2036 of 2017) as well as judgment in the case of Akash alias Nirmal Mishra (juvenile) versus State of U.P. and another (criminal revision No. 1944 of 2019).
Upon consideration of material on record and submissions advanced by learned counsel for parties, it is apparent that the offence indicated in the first information report is no doubt a heinous one and as per the averments made in the first information report, was actuated without any provocation. Nonetheless in the case of a juvenile under the age of 16 years, the parameters for grant or rejection or enlarging on bail are to be considered on the basis of Section 12 of the Act of 2015, which is a special Act pertaining to juveniles who are in conflict with law. The provisions of Section 12 are as follows:-
"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 persons 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."
It is a relevant factor that as per Section 15 of the Act, where the Board is satisfied on inquiry that juvenile has committed an offence, then the Board has been granted power to impose punishment upon such a juvenile who is in conflict with law. Relevant portion of Section 15 of the Act is as follows:-
"15. Order that may be passed regarding juvenile.--
(1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit,--
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;
[(g) make an order directing the juvenile to be sent to a special home for a period of three years:
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.] (2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order.
(3) Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law:
Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home.
(4) The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer."
In terms of perusal of Section 15 of the Act, it is apparent that in case where the Board is satisfied on inquiry that a juvenile has committed an offence, the Board has the power to direct the juvenile to be placed under the care of authorities or persons indicated in Clauses 15 (e), (f) and (g). It is relevant factor that the said order placing juvenile in custody is not to exceed a period of three years.
In the present case, the juvenile has already been in custody since 20th August, 2018. The trial has yet not concluded even after the juvenile being in custody for about two and half years now.
The consideration of bail of such a juvenile who is in conflict with law is required to be considered in terms of Section 12 of the Act of 2015, which is a beneficial provision so far as it relates to the juvenile and has a non obstante clause stating that notwithstanding anything contained in the code of criminal procedure or any other law for the time being in force, be released on bail with or without surety. The only limitations indicated in Section 12 for rejecting of bail application of a juvenile is only in case 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.
In the present case, upon applicability of Section 12 has juxtaposed to the report of District Probation Officer, it is apparent that there is no indication in the report that the release of revisionist is likely to bring him into association with any known criminal or would expose him to moral, physical or psychological danger. There is also nothing on record to indicate that release would defeat the ends of justice. On the contrary, the District Probation Officer has clearly indicated his recommendation that upon inquiry, neighbours and villagers have stated that they have no objection to the release of accused.
So far as the submissions of learned counsel for opposite parties are concerned, as noticed earlier, while it is no doubt a fact that the allegations made in the first information report indicate a heinous crime having been committed by the revisionist but at the same time this court can not loose sight of the fact that the said allegations as of now are only allegations without any judgment of conviction against the juvenile/revisionist. As has been noticed earlier, Section 15 of the Act clearly indicates the maximum punishment which can be prescribed in case a juvenile has been found to have committed the offence, the said maximum period of sentence is three years. The revisionist has already been in custody for two and half years. There would be no purpose of continuing or concluding the trial against the revisionist in case he serves out the maximum period of sentence in custody without any conviction. The same would also against his fundamental right to life and liberty under Article 21 of the Constitution of India.
In the case of Prakash versus State of Rajasthan (supra) it has been held as follows:-
" 6. From the perusal of Section 12 of the Act, it is clear that a delinquent juvenile ordinarily has to be released on bail irrespective of nature of nature of offence alleged to have been committed by him, unless it is shown by evidence that if he is released on bail, there appear reasonable grounds for believing that the release of delinquent juvenile 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. Section 12 of the Act is a special provision injucting the Courts from refusing bail to a delinquent juvenile except for the reasons stated in the section itself, i.e., if he be so released there are reasonable grounds for believing that he will come 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.
7. At the time of consideration of bail under Section 12 of the Act, the merit or nature of offence has no relevancy. The language of Section 12 of the Act, using the word "shall" is mandatory in nature and providing non-obstante clause by using the expression "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time-being in force be released on bail" shows the intention of the Legislature to grant bail to the delinquent juvenile offender by releasing him on bail who is arrested or produced before a Court, however, with exception to release him on bail if there are reasonable grounds for believing that his release him on bail if there are reasonable grounds for believing that his 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. It is for the prosecution to bring on record such material while opposing the bail and to make out any of the grounds provided in this section which may persuade the Court not to release the juvenile on bail.
8. The Act is beneficial and social-oriented legislation which needs to be given full effect by all concerned whenever the case of juvenile comes before them. In absence of any material or evidence of reasonable grounds to believe that the delinquent juvenile, if release on bail, is likely to come into association with any known criminal or expose him to moral, physical or psychological danger, it cannot be said that his release would defeat the ends of justice. On the contrary, keeping in view the legislative intent in enacting the Act, the juvenile offender deserves to be released on bail."
Similarly in the case of Sanjay Chaurasia (supra) it has been held as follows:-
" In case of refusal of the bail some reasonable grounds for believing above mentioned exceptions must be brought before the Court concerned by the prosecution."
The judgment rendered in the case of Monu (supra) which has been relied upon by the learned counsel for opposite parties would not have any application in the present case in view of the fact that the juvenile /revisionist therein was more than 16 years of age and therefore the maximum period of sentence of three years would be inapplicable upon him in terms of the amendment made in the Act in the year 2015.
In the case of Akash alias Nirmal Mishra (supra), although the juvenile was 14 years, 3 months and 15 days on the date of occurrence and had been in custody since 2108 but the revision appears to have been rejected on the ground that the revisionist was alleged to have ravished a child who was only six years old. This, the learned Judge held was a social crime and the release of revisionist would have a harmful effect upon the guardians and the young child who would not feel safe during their daily routine in case of release of revisionist which would lead to justice being defeated. The aforesaid case is also inapplicable in the facts and circumstances of the present matter in which there is no such evidence on record to indicate that release of revisionist would defeat the ends of justice.
A perusal of the order passed by Juvenile Justice Board, makes it apparent that the report of the District Probation Officer has not been appreciated in its proper context with regard to provisions of Section 12 of the Act of 2015.
In view of aforesaid, the revision is allowed. Judgment and order dated 17.1.2019 passed by Additional Session Judge Ist/ Special Judge P.C.S.O. Act, Room No.1, Balrampur in Appeal No. 11 of 2018 as well as against the order dated 19.11.2018 passed by Juvenile Justice Board, Balrampur rejecting bail application of revisionist are hereby set aside.
Let revisionist Mohammad Hasan alias Ali Hasan be enlarged on bail in case crime No. 207 of 2018 registered under Section 324, 302 IPC, P.S. Kotwali Utraula, District Balrampur, subject to executing personal bond by his father/ guardian along with two sureties in the like amount to the satisfaction of the court/board concerned. The father/ guardian shall also furnish an undertaking that he will keep the revisionist-applicant under his effective control and shall make every endeavour to ensure that the revisionist should not commit any illegal or immoral act and the revisionist should not join the association with any known criminal.
Order Date :- 5.1.2021 prabhat