Reserved
In Chamber
Case :- CRIMINAL APPEAL No. - 1356 of 2019 Appellant :- Deepak Respondent :- State of U.P.
Counsel for Appellant :- Anant Ram Dube,Anil Kumar Srivastava,Narendra Kumar Counsel for Respondent :- G.A.,Vinay Kumar Singh Chandel
Hon'ble Naveen Srivastava,J.
Heard learned counsel for the appellant, Sri Vinay Kumar Singh Chandel, learned counsel for the opposite party / complainant and learned A.G.A. for the State.
This is an appeal under Section 101(5) of the Juvenile Justice (Care and Protection of Children) Act, 2015 from the judgment and order of the Additional Sessions Judge / Special Judge (POCSO) Court No. 6, Ghaziabad dated 17.10.2018 in Bail Application No. 6710 / 2018 rejecting the bail application in Case Crime No. 1922 / 2017 (Deepak Vs. State of U.P.), under Sections 302 and 309 IPC, Police Station, Indrapuram, District, Ghaziabad of the Juvenile / Child in Conflict with law, Deepak.
The facts relevant for adjudication of this appeal appears to be that an FIR was lodged by informant, Ashok Kumar alleging that Khusi (Deceased), the daughter of informant brother was student of class-X and the appellant is also the student of class-XI.
That on 20.12.2017 when she reached at the back side of the apartment where she had been called by the appellant. The appellant with the licensee revolver of his father fired upon her and has also fired upon himself and both of them received fire arm injury. It is further alleged that both were taken to the hospital. Initially a case was registered under Sections, 307 and 309 IPC. During treatment, Khusi (Deceased) expired, thereafter, the case was converted under Section 302 IPC.
At the time of occurrence, appellant was minor and he made an application to Juvenile Justice Board that he may be declared a juvenile / child in conflict with law and dealt with as such. The Juvenile Justice Board considered the aforesaid plea put-forth on behalf of the appellant and by their order dated 29.3.2018 held his age to be 16 years 3 months on the date of the occurrence and accordingly declared him a juvenile.
The appellant having been declared juvenile applied for bail to the Additional Sessions Judge / Special Judge (POCSO) Act. The Special Judge rejected the bail application of the appellant by above-mentioned order. Feeling aggrieved by this order, the present appeal has been preferred.
The submission of learned counsel for the appellant is that bail is invariable rule for a juvenile even in non bailable offences, the other option being placed 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 be 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 further submits that the court below has not recorded any finding based on the evidence. It is also submitted that Psychological report submitted by the District Probation Officer shows that relationship between father and mother of juvenile is cordial likewise there is cordial relationship between the juvenile and his father, mother, brothers and sisters. It is also reported that none of the family members of the juvenile has any criminal history and they have also not participated in the present crime. It is also said that he is student of class-XI. Neighbours are also reported to have given information, that relationship with the neighbours are normal. It has also been submitted that the juvenile is neither the victim of the crime nor he is being used by gang or by adults or by group of adults or by children as drug pusher. It has also been submitted that previously the juvenile had never been arrested in connection with any crime. It is also reported that social background is alright and economic condition is normal and at the time of incident, mental and physical condition of the juvenile was normal.
Learned counsel further submits that in view of the aforesaid social investigation report, there was no reason for the court below to reject the bail application.
Learned counsel for the opposite party no. 2 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.
It has been pointed out that the age of the appellant is 16 plus and he, therefore, falls between the age of 16 to 18 years. He has been declared juvenile by an order of the Juvenile Justice Board dated 29.3.2018.
I have gone through the Section 12 the Juvenile Justice (Care and Protection of Children) Act, 2015. The relevant portion of Section 12 the Act is quoted verbatim as follows:-
“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.”
In the light of above statutory provision bail prayer of the juvenile / appellant 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.
The Hon'ble Supreme Court in the case of Om Prakash Vs. State of Rajasthan another (Criminal Appeal No. 651 of 2012) 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.
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."
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".
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 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.
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 up-keep 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.
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."
The fact of the case in hand shows that it is a case where the appellant has fired upon the deceased (girl) with revolver resulting to her death during treatment and thereafter fired upon himself. The lower court in impugned order has mentioned that at the time of commission of offence, appellant / juvenile was capable of knowing the nature and consequences of his conduct.
The offence is heinous, it precisely falls in the opinion of the Court into that category of the cases where if, release on bail to be ordered it would defeat the ends of justice.
In view of the above, this Court does not find any infirmity with the impugned order passed by the court below. It is hereby affirmed and appeal is liable to be dismissed.
The appeal is dismissed with the aforesaid observations.
Office is directed to transmit the certified copy of this order to the Court concerned for information and its necessary compliance.
Order Date :- 30.09.2021 A.K.T./Arif