Heard Shri Praveen Tripathi, learned counsel for revisionist, Shri Kailash Nath Mishra, learned counsel for the opposite party no.2, Shri Rajesh Kumar, learned A.G.A. for the State and perused the record.
The instant revision has been filed with a prayer to set aside the judgment and order dated 17.08.2020 passed by the Additional Sessions Judge/Special Judge (P.O.C.S.O. Act), District Gonda in Criminal Appeal No.27 of 2020 (Babloo @ Imtiyaz V. State of U.P.) and order dated 22.07.2020 passed by the Juvenile Justice Board, Gonda in Case No.23 of 2020 relating to Case Crime No.174 of 2020, under Section 302 I.P.C., Police Station Tarabganj, District Gonda, whereby the prayer of bail of the revisionist has been rejected by both the courts below.
Learned counsel for revisionist submits that the juvenile has been declared of the age of 15 years, 3 months and 6 days on the date of occurrence vide order dated 10.12.2020 by the Juvenile Justice Board, Gonda and no appeal against this order, in the knowledge of the revisionist, has been preferred anywhere and the order whereby the revisionist has been declared juvenile, has become final and juvenile is entitled to the beneficial provision of the Juvenile Justice (Care and Protection of Children) Act, 2015.
It is further submitted that in the F.I.R. lodged by the informant, the role of only catching hold has been assigned to the revisionist - juvenile and role of stabbing with knife has been assigned to the co-accused Qayyum Ali @ Gopal and subsequent to the F.I.R. after arrest of the co-accused Qayyum Ali @ Gopal, the knife has also been recovered on his pointing. It is vehemently submitted that the role of the applicant as alleged in the F.I.R. is only of 'catching hold' and apart from that no overact has been assigned to the juvenile. It is further submitted that the juvenile is not having any previous criminal history and he is detained in this case since 07.07.2020 and there is no apprehension that applicant after being released on bail may associate himself with any known or unknown criminals or may otherwise be exposed to moral, physical or psychological danger.
It is further submitted that the District Probation Officer in his report has categorically stated that the role of the revisionist - juvenile in the case appears to be doubtful and he is leading a normal life, therefore, there was no material either before the Juvenile Justice Board, Gonda or before the appellate court to infer that if the juvenile is released on bail, he may be exposed to moral, physical or psychological danger. Thus finding of both the courts below in this regard is against the material available on record.
It is further stated that co-accused of the crime, namely Arshad Hussain @ Bret, who was also declared juvenile has been granted bail by this Court vide order dated 16.08.2021, passed in Criminal Revision No.516 of 2020.
Shri Kailash Nath Mishra, learned counsel for the opposite party no.2 vehemently submits that the juvenile has been assigned specific role of catching hold and it is only because the deceased was caught hold by the revisionist as well as two other persons and thereafter the deceased was stabbed by co-accused Qayyum Ali @ Gopal. It is further submitted that the District Probation Officer in his report has categorically opined that the parents of the juvenile is not having control on him and on this score no illegality or irregularity appears in the order of both the courts below wherein it has been opined that if the juvenile shall be released on bail the same will expose him to moral, physical or psychological danger.
Learned counsel for the opposite party no.2 has relied on judgement dated 13.04.2012 of the Hon'ble Supreme Court passed in Om Prakash V. State of Rajasthan and another; 2012 (5) SCC 201 and two cases decided by this Hon'ble Court namely Suraj Gupta V. State of U.P. and another; 2018 (1) JIC 419 (All) and Hashim V. State of U.P.; 2018 (1) JIC 339 (All). While referring to the judgement of the Hon'ble Supreme Court Om Prakash (supra), it is vehemently submitted that it has been clearly opined in this case that if offence has been committed with sufficient maturity and design the juvenile could not hide behind the veil of juvenility and thus there is no illegality in the orders of both the courts below and the juvenile is not entitled to be released on bail.
Learned Additional Government Advocate has also supported the submissions of Shri Kailash Nath Mishra, learned counsel for the opposite party no.2, and submits that though the revisionist has been declared juvenile but having regard to the facts and circumstances of the case as well as the report of the District Probation Officer it is apprehended that after being released on bail the revisionist may associate himself with the known and unknown criminals and otherwise also the release of the revisionist on bail will expose him to any moral, physical or psychological danger and his release would otherwise defeat the ends of justice and, therefore, the revisionist is not entitled to be released on bail.
Having heard learned counsel for parties and having perused the record as well as the judgement relied on by Shri Kailash Nath Mishra, learned counsel for the opposite party no.2, it is evident that the bail of juvenile is to be dealt with as per provisions contained under Section 12(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015, for convenience, the same is reproduced as under:-
"Section 12(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."
The perusal of the above Section would reveal that for juvenile grant of bail is rule while the rejection is an exception and the bail of the juvenile could only be rejected/dismissed on the grounds mentioned in the proviso appended with Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter called as J.J. Act). In the proviso appended with Section 12 of the J.J. Act, when the release of juvenile is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or his release would otherwise defeat the ends of justice his bail prayer could be rejected. In some cases, the Hon'ble Supreme Court has interpreted the words release would defeat the ends of justice "to those cases where crime has been committed by the juvenile with sufficient maturity".
Thus no strait jacket formula may be adopted for grant or refusal of facility of bail to a juvenile in conflict with law and it will depend on the facts and circumstances of each case as well as on the manner and method whereby the alleged offence has been committed by the juvenile to assess as to whether the act of the juvenile attracting penal consequences, has been done with sufficient maturity, skill and evil design, which can be attributed only to a major person or whether the penal act of the juvenile is an act of an innocent law breaker. Needless to say that every case will have to be decided on its own merits, demerits and evidence. The gravity of the offence certainly cannot be the sole guiding factor in these cases, but the manner and method of the commission of the offence could certainly be taken into consideration while deciding the plea of bail of a juvenile.
Coming to the facts of the present case the role of only 'catching hold' has been assigned to the revisionist juvenile. He is not having any criminal history. The perusal of the report of the District Probation Officer, which has been placed on record through supplementary affidavit dated 11.08.2021, would reveal that the juvenile was admitted in Class-9th as he had passed Class 8th, he was reportedly leading a normal life and having normal behaviour towards his colleagues and his involvement in criminal activity is also reported to be doubtful. In conclusion of the report it is stated that the juvenile is detained in child welfare home Gonda and his parents want to keep him in their supervision and keeping in view the Covid-19 Pandemic a sympathetic view is required to be taken.
Strangely both the courts below appears to have not considered the report of the District Probation Officer in right perspective. It is apparent that at one place the District Probation Officer has opined that the role of juvenile in the alleged crime is doubtful and in the concluding part of his report, he has categorically stated that the juvenile is required to be provided moral, physical and psychological development as well as personal security and supervision. Having perused the report of District Probation Officer in entirety, his observations with regard to the fact that the revisionist will indulge himself in bad company could not be believed in the background of the fact that no material has been collected by him on the basis of which such an opinion could be formed and having perused the whole report of the District Probation Officer, it appears that the revisionist has been neglected by his parents and this may be the cause of his involvement in the instant crime.
Having regard to the facts and circumstances of the case it does not appear to be a case wherein grant of bail to accused revisionist would act against his interest or will expose him to any moral, physical or psychological danger or his release would otherwise defeat the ends of justice. Keeping in view the totality of facts including the report of District probation officer, it appears in the interest of justice a chance to reform may be provided to Juvenile/ revisionist. In absence of any material, it was obligatory on the courts below to consider the report of District Probation Officer in right perspective and they were required to infer from the positive evidence or material available on record, as if any of the grounds enumerated under section 12 of the Juvenile Justice Act 2015, are available, on the basis of which bail could be denied to Juvenile, and if these ground(s) were not existing, the revisionist juvenile should have been released on bail, acting otherwise would defeat the beneficial purpose of the juvenile justice Act. In absence of any adverse material on record and also in the background of the report of the District Probation officer, as also the fact that co-accused Arshad Hussain standing on the identical footing as of the instant juvenile has been granted facility of bail by this Court, the impugned orders whereby the bail of accused/ revisionist has been rejected by both the courts below are not sustainable and the same are not in conformity with the beneficial provisions of the Juvenile Justice Act. The impugned orders, therefore deserve to be set aside and the revision is worth allow.
For the reasons mentioned herein above, I find force in the revision and the same is allowed. The order dated 17.08.2020 passed by the Additional Sessions Judge/Special Judge (P.O.C.S.O. Act), District Gonda in Criminal Appeal No.27 of 2020 (Babloo @ Imtiyaz V. State of U.P.) and order dated 22.07.2020 passed by the Juvenile Justice Board, Gonda in Case No.23 of 2020 relating to Case Crime No.174 of 2020, under Section 302 I.P.C., Police Station Tarabganj, District Gonda, whereby the bail applications of juvenile Babloo @ Imtiyaz was rejected, are set aside.
Let Juvenile Babloo @ Imtiyaz, be enlarged on bail, in the above mentioned case on executing a personal bond by his father- Taj Mohammed @ Goole with two reliable sureties each in the like amount to the satisfaction of the Court/Board concerned and on submission of undertaking on affidavit by his father that he will take due care of the juvenile, will not allow him to indulge in any unlawful or criminal activity or join the company of unlawful elements, will keep him under strict control, shall not attempt or tamper with the evidence or threaten the witnesses; shall not seek any adjournment on the date fixed for evidence, shall remain present before the trial Court on each date fixed, either personally or through his counsel failing which the facility of bail granted to Juvenile may be cancelled.
The juvenile after his release on bail shall appear before the District Probation Officer, Gonda once in a month for one year from today along with his guardian.
Order Date :- 25.8.2021 Irfan