Allahabad High Court
Dileep Kumar Giri (Juvenile) vs The State Of U.P. on 31 January, 2017
Author: Prabhat Chandra Tripathi
Bench: Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD (A.F.R.) Reserved on 11.01.2017 Delivered on 31.01.2017 Court No. - 32 Case :- CRIMINAL REVISION No. - 3243 of 2015 Revisionist :- Dileep Kumar Giri (Juvenile) Opposite Party :- The State Of U.P. Counsel for Revisionist :- A.P. Tewari,S.S. Tripathi Counsel for Opposite Party :- Govt.Advocate Hon'ble Prabhat Chandra Tripathi,J.
1. Heard Mr. A.P. Tiwari, learned counsel for the revisionist and Mr. Shri Prakash, learned Brief Holder for The State of Uttar Pradesh.
2. This criminal revision has been preferred against the impugned judgement and order dated 03.08.2015 passed by the learned Sessions Judge, Gorakhpur in Criminal Appeal No.168 of 2015 (Dileep Kumar Giri through his guardian and natural mother Smt. Vimla Devi Vs. State of U.P.) under Section 52 of the Juvenile Justice (Care and Protection of Children), 2000 (hereinafter referred to as 'Act'), Police Station Khorabar, District Gorakhpur by which the criminal appeal filed by the present revisionist has been dismissed, and also against the order dated 30.06.2015 passed by the learned Juvenile Justice Board, Gorakhpur in Case Crime No.285 of 2014 (State Vs. Dileep Kumar Giri), under Section 8/20 N.D.P.S. Act, Police Station Khorabar, District Gorakhpur by which the bail application of the 'juvenile in conflict with law' presented through his guardian and natural mother Smt. Vimla Devi, has been rejected.
3. In short, according to prosecution version, on 16.06.2014, the local police was informed that some persons were involved in smuggling of intoxicants from the State of Bihar. While conducting the checking of the vehicles on the Gorakhpur-Kasia road, one Santro car which was coming from Kasia side, was intercepted by the police. Two persons, who were travelling inside the Santro, car unsuccessfully tried to run away from the vehicle but they were apprehended by the police. The revisionist Dileep Kumar Giri was one of the passengers who was travelling on the aforementioned Santro car. Rs.640/- was recovered from the possession of the revisionist and on his pointing out 64 packets of Charas each weighing 500 grams were also recovered from the vehicle. Thus, total weight of recovered Charas was 32 Kilogrammes.
4. It is submitted by the learned counsel for the revisionist that the impugned judgement and order dated 03.08.2015 passed by the learned Sessions Judge, District Gorakhpur and order dated 30.06.2015 passed by the learned Juvenile Justice Board, District Gorakhpur are illegal, unjust and wholly without jurisdiction. It is further submitted that the learned Magistrate has passed the impugned order in a routine and mechanical manner. The findings of the courts below that the revisionist would come in contact with known or unknown criminals is wholly illegal and against the material available on record. It is also submitted that the report submitted by the District Probation Officer, Gorakhpur is cryptic and vague. The courts below have rejected the bail prayer of the revisionist solely on the basis of the report of the District Probation Officer, Gorakhpur. It is next submitted that the impugned orders of the courts below are wholly illegal, unreasoned and based on surmises and conjectures and as such, the same are not sustainable in the eyes of law and liable to be set aside.
5. Learned counsel for the revisionist has relied upon the judgement of this Court in the case of Shabbir Vs. State of U.P. and others [2014(3) JIC 615 (All)].
6. I have gone through the Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The relevant portion of Section 12 of Act the is quoted verbatim as follows:-
"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."
7. In the context, I have also gone through the following judgments of this Court as well as of the Apex Court:-
1. Monu @ Moni @ Rahul @ Rohit Vs. State of U.P., 2011 (61) ACR 2582.
2. Mohit Vs. State of U.P. and another, 2013 (83) ALLCC, 242.
3. Virendra Vs. State of U.P., 2015 (1) ACR 629.
4. Shabbir Vs. State of U.P. and others, 2015 (88) ALLCC 161.
5. Sonu Tomar Vs. State of U.P., 2015 (2) ACR 2284.
6. Amit Yadav Vs. State of U.P. and others, 2016 (93) ALLCC 571.
8. The Apex Court in the case of Om Prakash Vs. State of Rajasthan and another, (2012) 5 SCC 201 has cautioned the Courts to be more sensitive in dealing with juvenile in cases of serious nature like sexual molestation, rape, gang-rape murder etc. The relevant extract of the said judgment in paragraphs 3 and 23 are being reproduced below in reference:-
"3. Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of children/juvenile by the juvenile court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a juvenile court or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held.
23. ....Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him."
9. In the impugned judgement and order dated 03.08.2015 passed by the learned Sessions Judge, District Gorakhpur, it has been vividly mentioned that D.G.C. (Criminal) has submitted before the learned Sessions Judge, District Gorakhpur that the present revisionist was engaged in smuggling of Charas in the State of Bihar and other provinces. The revisionist was apprehended with Santro car and on his pointing out 32 Kilogrammes of Charas was recovered from the vehicle. If the revisionist was released it would likely bring him into association with known criminals and expose him to moral, physical and psychological danger and his release would also defeat the ends of justice.
10. Learned Sessions Judge, District Gorakhpur has relied upon the case laws of 2014 (2) J.I.C. 872 (All) Virendra Vs. State of U.P., Para-20.
11. Learned Sessions Judge, District Gorakhpur has arrived at the conclusion after meticulously analysing the facts of the case in hand.
12. The report dated 15.06.2015 of the District Probation Officer, District Gorakhpur has been discussed by the learned Juvenile Justice Board, District Gorakhpur in it's order dated 30.06.2015 wherein it has been mentioned that the juvenile in conflict with law has passed Class VIII and was living at his sister's home at Bahraich.
13. The rider of the 'person's release would defeat the ends of justice' requires attention.
14. The 'juvenile in conflict with law' does not entitle him to be released on bail solely on the ground of his juvenility. The juvenile offenders who have criminal tendencies and have inclination and attraction to commit crime "at the drop of a hat", should be segregated and should not be integrated to set the shield of this benevolent legislation. It is of paramount importance to upkeep and safeguard the larger interest of the society. Due to this, exception to the rule of bail to a juvenile has also been included. A too liberal interpretation in the matters related to ghastly crimes would definitely result in defeating the ends of justice.
15. The relevant extract of the judgment in Virendra Vs. State of U.P., 2015 (1) ACR 629 para 23 is quoted below:-
"23. A citizen's claim to equality before the law is a claim of justice. Justice has been termed as the highest virtue. It has also been equated with fairness. Fairness connotes fairness to all i.e. equal treatment to all. Sense of injustice is a powerful human emotion. It is strongest when a person's own interests are harmed, but it also aroused in civilized people when they witness wrongs done to others. Ultimate object of every legal system is to secure justice which is at the centre of moral and social philosophy. The instinct for justice leads us to believe that right, and not might, is the true basis of society. The principles of justice that define duties and rights should be neutral with respect to compacting conception of good life. Defeat of ends of justice is bound to result in injustice which produces conflict within the individual and sets him at variance with himself and with all who are just. Injustice is inseparable from virtue which consist of ethics and justice in universal sense. Injustice in the particular sense is the injustice that causes harm to others. Virtue based approach connects justice to reflection about good life. This approach ensures that justice means giving people what they morally deserve-allocating goods to reward and promote virtue. It is thus apparent that the concept of justice lies at the heart of moral philosophy where righteousness, fairness and truth are the basic values and it should include people from all walks of life. Therefore, it is safe to conclude that wellbeing of the community takes precedence over the liberty and preventing injustice would always be a pursuit of justice. Leaving society to live with persons of perverted nature would be an affront to the dignity of human beings and tends to promote anarchy and unrest in society which is sure to defeat the ends of justice."
16. It would not be out of context to cite the paragraphs 376 and 377 of the extract of the judgment of the Apex Court in the case of Essa @ Anjum Abdul Razak Memon (A-3) and others Vs. The State of Maharashtra, through STF, CBI Mumbai and others, JT 2013 (6) SC 1, which are quoted below:
"376. While dealing with such an issue, the court must not lose sight of the fact that meaning of "ends of justice" essentially refers to justice to all the parties. This phrase refers to the best interest of the public within the four corners of the statute. In fact, it means preservation of proper balance between the Constitutional/Statutory rights of an individual and rights of the people at large to have the law enforced. The "ends of justice" does not mean vague and indeterminate notions of justice, but justice according to the law of the land. (vide: State Bank of Patiala and others v. S.K. Sharma MANU/SC/0438/1996: AIR 1996 SC 1669; and Mahadev Govind Gharge and others v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka MANU/SC/0597/2011: (2011) 6 SCC 321).
377. Thus, the law has to be interpreted in such a manner that it develops coherently in accordance with the principles, so as to serve, even-handedly, the ends of justice."
17. In revision under Section 397 Cr.P.C., the revisional court cannot analyse and interfere in the findings of fact of the lower courts and appellate jurisdiction is not available to the revisional court to interfere in the findings of fact recorded by the courts below.
18. In view of the above discussions, the impugned orders show that the learned Sessions Judge, District Gorakhpur and the Juvenile Justice Board, District Gorakhpur have considered the correctness, legality and propriety of the matter and did not act with any irregularity at the time of giving findings of fact relating to revisionist.
19. There is no illegality, perversity or infirmity in the impugned orders. The revision lacks merits and is liable to be dismissed.
20. The revision is, accordingly, dismissed. Interim order, if any, is vacated.
Order Date :- 31.01.2017 S.Sharma