Allahabad High Court
Sachin Kumar vs State Of U.P. And Another on 12 October, 2020
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 4 Case :- CRIMINAL REVISION No. - 2250 of 2019 Revisionist :- Sachin Kumar Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Anup Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
This revision has been preferred under Section 102 of Juvenile Justice Act by the revisionist Sachin Kumar, through his father Adalat Prasad @ Adalat against the judgment and order dated 11.04.2019 passed by Additional Session Judge, Court No. 1, Siddharth Nagar, in Criminal Appeal No. 31 of 2019 (Sachin Kumar vs. State of U.P. and another), under section 52 of the Juvenile Justice (Care and Protection) Act, 2000, arising out of case crime No. 388 of 2018, under sections 302, 201, 376, 511 IPC and section 3/4 POCSO Act, P.S. Kotwali Bansi, District Siddharth Nagar.
Heard Sri Anup Kumar Pandey, learned counsel for the revisionist and learned A.G.A for State of U.P. Learned counsel for the revisionist has submitted that the first information report was lodged by one Devi Prasad Yadav on 30.12.2018, under sections 302, 201 IPC against unknown persons. The statement of the first informant under section 161 Cr.P.C was recorded on 31.12.2018, in which the name of the revisionist was surfaced as information received through Barkoo Mishra, as last seen evidence, but nobody was witnessed of the alleged occurrence. It is also submitted that this case is solely based on the basis of circumstantial evidence but link evidence is missing. There is no motive against revisionist to commit alleged offence.
Learned counsel for the revisionist has submitted that as per the report of Juvenile Justice Board, at the time of incident, the age of the revisionist was 13 years 08 months and 27 days. It is also submitted that the revisionist has falsely been implicated in the present case. It is further submitted that no adverse inference drawn by the District Probation Officer. Nothing incriminating article was recovered from the possession of the revisionist. It is also submitted that co-accused Surjeet has already been exonerated in the aforesaid sections vide order dated 28.08.2020 passed by Additional Session Judge/ Spl. Judge (POCSO Act), Siddharth Nagar. He has no criminal history. There is no evidence against him. If he is released on bail, he will not misuse the liberty of bail. He is languishing in jail since 01.01.2019. The impugned order is against the provision of law which is liable to be set aside.
Learned A.G.A has vehemently opposed the prayer made by the learned counsel for the revisionist and submitted that if the revisionist is released on bail, he will join in the company of habitual criminal,hence he is not entitled for bail.
The Juvenile Justice (Care and Protection) Act, 2015 (Act) has been enacted with object to reform and protect the future career of children below the age of 18 years. The main purpose of this Act is to keep the juvenile out of company and society of habitual criminals and to keep them in place of safety. The parameter and guidelines for assessment of plea of bail of a juvenile has been provided in Section 12 of the Act which is as under:-
"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 1[or placed under the supervision of a Probation Officer or under the care of any fit institution of fit person] but he shall not be so released if there appear 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.
When such person having been arrested is not released on bail under sub-section (1) by the officer incharge 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.
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 the inquiry regarding him as may be specified in the order."
Thus it is clear that the provision for release to a juvenile has overriding effect to any provision contained in Code of Criminal Procedure, 1973 or in any other law for the time being in force. According to this provision, a duty has been cost to grant bail to a juvenile unless there is a reasonable ground for plea that the release is likely to bring the juvenile into association with any known criminal or exposed the said juvenile to moral, physical or psychological danger or that his release would defeat the end of justice.
Plea of bail raised by juvenile cannot be rejected in a mechanical manner. While considering the parameter provided in Section 12 of the Act, nature of offence, role played by the juvenile in committing the offence, his family background, his association with known or unknown criminals or bad elements of society, number of person named in the occurrence and future carrier of juvenile should also be taken into consideration by Juvenile Justice Board or court concerned in addition to the other factors.
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.
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.
In this case the revisionist age was 13 years 08 months and 27 days at the time of occurrence. Admittedly the revisionist was juvenile at the time of occurrence. No material is available on record whereby it can be presumed that the revisionist was in association of any criminal or bad elements.
From perusal of impugned judgement and order passed by the appellate Court as well as passed by the Board, it transpires that both the Courts below have passed the impugned judgement and orders in cursory manner without placing due reliance on the report submitted by the District Probation Officer as well as facts and circumstances of this case. The impugned judgment and orders are liable to be set aside.
Consequently, the revision succeeds and is allowed. Both the impugned judgment and order 19.09.2019 and 07.11.2019 are hereby set aside.
Let the revisionist Sachin Kumar through his natural guardian/father Adalat Prasad @ Adalat be released on bail in the aforesaid criminal case and be given into custody of aforesaid natural guardian on furnishing a personal bond with two solvent sureties of relatives of the aforesaid natural guardian each in like amount to the satisfaction of Juvenile Justice Board concerned on the following conditions.
(i)That, father/ natural guardian of the revisionist will furnish an undertaking that upon release on bail, the juvenile will not be permitted to go into contact or association with any known or unknown criminal or exposed to any moral or physical danger and will not indulge in any criminal activity and aforesaid natural guardian will make best effort for improvement of juvenile's carrier.
(ii)That the revisionist and his aforesaid natural guardian shall remain present before the trial court on each date fixed, either personally or through counsel.
Order Date :- 12.10.2020 v.k.updh.