Allahabad High Court
Raju @ Ashish vs State Of U.P. & Another on 7 July, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 30.4.2018 Delivered on 3.7.2018 Court No. - 53 Case :- CRIMINAL REVISION No. - 2492 of 2017 Revisionist :- Raju @ Ashish Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Vijay Prakash Singh Kushw,Veer Bhagat Singh Kushwah Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
Heard Sri B.S. Kushwaha, learned counsel for the applicant and Sri Shyam Dhar, learned A.G.A. appearing on behalf of the State.
This is a revision under section 102 of Juvenile Justice Care and Protection of Children Act, 2015 (hereinafter referred to as the Act) from a judgment and order of Sri Dinesh Chand, Additional Sessions Judge, Court No.7, Allahabad dated 17.7.2017, passed in Criminal Appeal No. 153 of 2017 dismissing the said appeal, and, affirming an order dated 30.6.2017 passed by the Juvenile Justice Board in Crime No. 129 of 2017 (State Vs. Raju alias Ashish) under Sections 302, 323, 354 IPC, P.S. Utraon, Allahabad, rejecting the bail application of the juvenile/child in conflict with law, Raju alias Ashish.
The facts, shorn of unnecessary details, giving rise to this revision are that the informant Kanhiya Lal lodged an F.I.R. on 29.3.2017 at P.S. Soraon at 21.10 hours, that at 19.30 hours earlier in the day his son Rajender Kumar had gone over to a well, located behind his house where the informant's daughter Nisha had also gone along. Two boys, Raju alias Ashish (the revisionist) and Alok Kumar son of Sripal, residents of Satapur, both of whom are bullies and goondas eve teased his daughter and molested her, to which his son Rajesh objected. This led to an altercation between Rajesh and the two named accused Raju alias Ashish and Alok Kumar, both of whom pushed his son Rajesh and daughter Nisha into the well. On hearing the ensuing commotion, passers by rushed to the aid of victims the duo fished out country made pistols and brandishing them, escaped from the scene of occurrence. The informant says that the gathered natives and the informant pulled the two children out of the well to find both of them dead.
The submission of learned counsel for the applicant before this Court is the same that was before the courts below. It is that the provisions of the first proviso to Section 12 (i) of the Act make the gravity of the offence committed by a juvenile, irrelevant to a plea for bail on his behalf that has to be judged on the parameters prescribed by Section 12(I) last mentioned. The provisions in regard to bail to a juvenile are contained in Section 12 of the Act which are quoted in extenso:
"12. Bail of juvenile.--
(1) 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 [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.
(2) 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.
(3) 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."
The submission of learned counsel for the revisionist is that bail is the invariable rule for a juvenile even in non-bailable offences, the other option being placing him under the supervision of the Probation Officer or under the care of any fit person unless it is shown that in the event of release there appears reasonable ground for believing that liberty is likely to bring the juvenile into association with any known criminal or expose him to moral, physical or psychological danger or the juvenile's release would defeat the ends of justice.
Learned counsel, therefore, submits that both courts below having not recorded any finding based on evidence and backed by reason that the revisionist if released on bail would come into association with any known criminal or his release would expose him to moral, physical or psychological danger; the impugned orders refusing bail are bad in law. It is further urged that a perusal of the social investigation report submitted by the District Probation Officer, a copy of which is annexed as Annexure-5 to the revision shows that relationship between father and mother of the juvenile is friendly, likewise there is good and friendly relationship between the juvenile and his father, between juvenile and his mother, between father on one hand and brothers and sisters of the juvenile on the other hand. It has further been reported that none of the family members of the juvenile has any criminal history and amongst other things, indicated are that he watches films and T.V., plays different games and read books. It is also said that he is a youthful scholar pursuing studies and has passed his class 'X' examination. It has also been reported that most of his friends are educated, of the same age as the juvenile, and, some of them are older or younger but all are of the same sex. It has also been reported that his interaction with friends is normal as also his relationship with neighbors. Neighbors are reported to have given responses that would show nothing special or bad for the juvenile. It has also been indicated that the juvenile is neither the victim of a crime or is he being used by a gang or by adults or by a group of adults or by children as a drug pusher. It has also been indicated that in the past the juvenile has never been arrested in connection with any crime. In the column relating to social and economic causes for the deviant behavior of the juvenile it is reported that his social background is alright but economic condition is weak, and, in the column about causes for the problem, it is said that there is absence of appropriate environment in the family. In the last part of social investigation report it has been mentioned that "fd'kksj dk lq/kkj lq/kkjkRed okrkoj.k esa lEHko gS] fd'kksj dks lq/kkjkRed okrkoj.k esa j[ksrs gq, vkxs dh f'k{kk dks iwjk djuk pkfg,] ftlls fd'kksj ds 'kSf{kd fodkl esa ck/kk mRiUu u gks] fd'kksj ds de mez o Hkfo"; dks /;ku esa j[krs gq, mfpr dk;Zokgh djus dh d`ik djsaA"
The learned counsel further submits that looking to the aforesaid social investigation report there is no reason for the courts below to have denied bail to the revisionist.
It has been pointed out that the age of the revisionist is 16 years 6 months and 10 days and he, therefore, falls between the age of 16 to 18 years. He has been declared a juvenile by an order dated 14.4.2017. He is, therefore, entitled to bail in the absence of any specific finding being recorded as envisaged under the exceptions to the Rule in section 12 (I) of the Act. In the last, it has been submitted by learned counsel for the revisionist that both courts below, have at the bottom of all their reasoning, been swayed by the heinous nature of the crime and appear to have fallen back upon the last of the exceptions envisaged under section 12(1) that says that release of the juvenile "would defeat the ends of justice". He submits that the clause authorizing detention and denial of bail on ground of defeat to ends of justice, if the juvenile were released on bail does not empower the Board or the Court in appeal or revision to look into the merits of the charge or the gravity of the offence.
Learned A.G.A. has opposed the reversal sought in this revision and submitted that it is not a fit case where the juvenile is entitled to have the impugned order set aside, and, secure his release on bail in whatever kind of custody or care.
The issue whether bail can be denied to a juvenile going by the gravity of the offence, the nature of the crime, and, so to speak, by considering the merits of the prosecution case, looking to the last clause of the exceptions to the Rule in Section 12 (I) of the Act which speaks about denial of bail on ground that release would defeat the ends of justice, has been considered by me in Criminal Revision No. 4009 of2017 (Mangesh Rajbhar Vs. State of U.P. and another) decided on 9.4.2018. In Mangesh Rajbhar it has been held as under:
23. No doubt, generally speaking bail is the rule in the case of a juvenile, even after the enforcement of the present Act, in cases of juveniles below the age of 16 years, and, burden is on the prosecution to show that on the parameters specified in the proviso to Section 12 (1) of the Act bail should be denied to a juvenile. In this connection reference be made to an order passed by this Court in the case of Raja (minor) v. State of U.P. in Criminal Appeal No. 1113 of 2017 decided on 4.5.2017. In this case, the Court has endorsed the view that burden is on the prosecution to bring the case within one of the exceptions under the proviso to Section 12(1) relying on an authority of the Hon'ble Supreme Court in Jitendra Singh vs. State of U.P.3 which makes a clear statement of the law on a reading of paragraph 5 of the judgment in Raja (minor) (supra).
"39. The provision dealing with bail (Section 12 of the Act) places the burden for denying bail on the prosecution. Ordinarily, a juvenile in conflict with law shall be released on bail, but he may not be so released if the reappear 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."
24. This court from what appears on a futer (Sic further) reading of the judgment in Raja (minor) (supra) did not construe the last of the three grounds for the refusal of bail to a juvenile in the proviso to Section 12(1) of the Act ejusdem generis; rather, this court in that case referred to the merits of the case and related the ground for denying bail to the juvenile being released on bail "would defeat the ends of justice" with the merits of the prosecution case. In other words, this Court found in the expression "defeat the ends of justice" a repose for the society to defend itself from the onslaught of a minor in conflict with law by certainly making relevant though not decisive, the inherent character of the offence committed by the minor. In this connection paragraph nos. 11, 12 and 13 of the judgment in Raja (minor) (supra) may be gainfully quoted.
"11. The report of the medical examination of the victim clearly shows that the revisionist had forced himself upon the victim, who was seven years old child and in the statements under sections 161 Cr.P.C. and 164 Cr.P.C., the child had clearly deposed about how she was taken away by the revisionist and later on caught on the spot by the public and he pretended to be taking a bath. In the orders impugned, there is specific mention about the fact that the revisionist was accused by name by the victim, who was studying in class II and the release on bail of the revisionist would defeat the ends of justice.
12. Having gone through the record of the case including statement under section 161 Cr.P.C. and the statement under section 164 Cr.P.C. given by the victim and also the report of the medical examination of the victim, which shows penetration by force and resultant injury, I am of the opinion that there is no legal infirmity in the orders impugned as the release on bail of the revisionist would indeed defeat the ends of justice.
13. No doubt, the Juvenile Justice Act is a beneficial legislation intended for reform of the juvenile/child in conflict with the law, but the law also demands that justice should be done not only to the accused, but also to the accuser."
25. It is not that this aspect of the gravity of the offence has been considered irrelevant to the issue of grant or refusal of bail to a minor in the past and before the present Act of 2015 came into force. In a decision of this Court under the Juvenile Justice Act, 2000 where the interest of the society were placed seemingly not on a level of (Sic omit 'of) playing field with the juvenile, this Court in construing the provisions of Section 12 in that Act that were pari materia to Section 12 of the Act in the matter of grant of bail to a minor held in the case of Monu @ Moni @ Rahul @ Rohit v. State of U.P.4 in paragraph Nos. 14 and 15 of the report as under:
"14. Aforesaid section no where ordains that bail to a juvenile is a must in all cases as it can be denied for the reasons"......if 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."
15. In the light of above statutory provision bail prayer of the juvenile revisionist has to be considered on the surrounding facts and circumstances. Merely by declaration of being a juvenile does not entitle a juvenile in conflict with law to be released on bail as a matter of right. The Act has a solemn purpose to achieve betterment of juvenile offenders but it is not a shelter home for those juvenile offenders who have got criminal proclivities and a criminal psychology. It has a reformative approach but does not completely shun retributive theory. Legislature has preserved larger interest of society even in cases of bail to a juvenile. The Act seeks to achieve moral physical and psychological betterment of juvenile offender and therefore if, it is found that the ends of justice will be defeated or that goal desired by the legislature can be achieved by detaining a juvenile offender in a juvenile home, bail can be denied to him. This is perceptible from phraseology of section 12 itself. Legislature in its wisdom has therefore carved out exceptions to the rule of bail to a juvenile."
26. The Hon'ble Supreme Court in the case of Om Prakash vs. State of Rajasthan and another5 has brought in due concern in matters relating to juveniles where the offences are heinous like rape, murder, gang-rape and the like etc., and, has indicated that in such matters, the nature and gravity of the offence would be relevant; the minor cannot get away by shielding himself behind veil of minority. It has been held in Om Prakash (supra) by their Lordships thus:
"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."
27. It seems thus that the suggestion of the learned counsel for the revisionist that bail to a juvenile or more properly called a child in conflict with law can be denied under the last ground of the proviso to Section 12 ejusdem generis with the first two and not with reference to the gravity of the offence, does not appear to be tenable. The gravity of the offence is certainly relevant though not decisive. It is this relevance amongst other factors where gravity of the offence committed works and serves as a guide to grant or refuse bail in conjunction with other relevant factors to refuse bail on the last ground mentioned in the proviso to Section 12 (1) of the Act, that is to say, on ground that release would "defeat the ends of justice".
28. Under the Act, as it now stands there is further guidance much more than what was available under the Act, 2000 carried in the provisions of Section 15 and 18 above extracted and the definition of certain terms used in those sections. A reading of Section 18 of the Act shows that the case of a child below the age of 16 years, who has committed a heinous crime as defined in the Act is made a class apart from cases of petty offence or the serious offence committed by a child in conflict with the law/juvenile of any age, and, it is further provided that various orders that may be made by the Board as spelt out under clause (g) of Section 15 depending on nature of the offences, specifically the need for supervision or intervention based on circumstances as brought out in the social investigation report and past conduct of the child. Though orders under Section 18 are concerned with final orders to be made while dealing with the case of a juvenile, the same certainly can serve as a guide to the exercise of power to grant bail to a juvenile under Section 12(1) of the Act which is to be exercised by the Board in the first instance.
29. Read in the context of the fine classification of juveniles based on age vis-a-vis the nature of the offence committed by them and reference to a specifically needed supervision or intervention, the circumstances brought out in the social investigation report and past conduct of the child which the Board may take into consideration, while passing final orders under Section 18 of the Act it is, in the opinion of this court, a good guide for the Board while exercising powers to grant bail to go by the same principles though embodied in Section 18 of the Act, when dealing with a case under the last part of the proviso to Section 12 (1) that authorizes the Board to deny bail on ground that release of the juvenile would "defeat the ends of justice."
30. Thus, it is no ultimate rule that a juvenile below the age of 16 years has to be granted bail and can be denied the privilege only on the first two of the grounds mentioned in the proviso, that is to say, likelihood of the juvenile on release being likely to be brought in association with any known criminal or in consequence of being released exposure of the juvenile to moral, physical or psychological danger. It can be equally refused on the ground that releasing a juvenile, that includes a juvenile below 16 years would "defeat the ends of justice." In the opinion of this Court the words "defeat the ends of justice" employed in the proviso to Section 12 of the Act postulate as one of the relevant consideration, the nature and gravity of the offence though not the only consideration in applying the aforesaid part of the disentitling legislative edict. Other factors such as the specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child would also be relevant that are spoken of under Section 18 of the Act.
31. In this context Section 12 and 18 and also Section15 (Section 15 not relevant in the case of a child below 16 years) and other relevant provisions all of which find place in Chapter IV of the Act are part of an integrated scheme. The power to grant bail to a juvenile under Section 12(1) cannot be exercised divorced from the other provisions or as the learned counsel for the revisionist argues on the other specific disentitling provisions in the grounds mentioned in the proviso to Section 12(1) of the Act. The submission made based on the rule of ejusdem generis urged by the learned counsel for the revisionist is misplaced, in the opinion of this Court."
Going by the aforesaid principle it cannot be said that bail to a juvenile can be denied on the first two grounds mentioned in the proviso alone or that the 3rd ground that speaks about the result of release being to defeat the ends of justice would have no reference to the nature and gravity of the offence. Its impact on the society certainly deserves some consideration of the prosecution case prima facie. Of course, other facts such as specific need for supervision or intervention or circumstances brought out in the social investigation report and past conduct of the child would also be relevant that find mention in Section 18 of the Act.
The facts of the case in hand show that it is a case where the revisionist along with co-accused to begin with indulged in an act of eve teasing followed by molestation of one of the victims who was a minor girl, and, when her brother came to her rescue they engaged in an altercation with him, and then, pushed both the brother and the sister into a well. The entire act in itself about which there is prima facie good evidence and a deeper finding not warranted, is an act that shakes the conscience of the society. The offence is heinous. It is a double murder preceded by molestation of a young girl. It precisely falls, in the opinion of the court, into that category of cases where if, release on bail were to be ordered, it would defeat the ends of justice.
In view of what has been said above, this Court does not find any infirmity with the orders impugned passed by the two courts below which are hereby affirmed and the revision dismissed.
Order Date :- 3.7.2018 Manish Tripathi