Court No. - 53 Reserved
Case :- CRIMINAL REVISION No. - 157 of 2018 Revisionist :- Gautam @ Baba Thakur Minor Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Anand Kumar Singh,D.M.Tripathi Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
1. A perusal of the office report dated 05.04.2018 shows that notice issued to opposite party no.2 as per report of the Chief Judicial Magistrate, Kaushambi has been personally served upon the said opposite party. In view of the office report, service is held sufficient. Nobody has put in appearance on behalf of opposite party no.2.
2. Heard Sri D.M. Tripathi, learned counsel for the revisionist and Sri Kamal Singh Yadav, learned A.G.A. appearing for the State.
3. This criminal revision under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter referred to as the ‘Act’) is directed against a judgment and order of Sri Surendra Pal Singh, the then Additional Sessions Judge, Court no.3, Kaushambi, dated 04.12.2017 dismissing Criminal Appeal no.13 of 2017 preferred by the revisionist under Section 101 of the Act and affirming an order dated 19.05.2017 passed by the Juvenile Justice Board, Kaushambi in Bail Application no.16 of 2017 rejecting the said application for bail on behalf of the revisionist in case crime no.133 of 2017, under Section 302 IPC read with Section 3(2)(5) of the SC/ST (Prevention of Atrocities) Act, Police Station Manjhanpur, District Kaushambi.
4. A First Information Report was lodged by one Lavlesh Kumar son of Shekhan Lal alleging that he is a native of Village Selraha Pashchim, Police Station Manjhanpur, District Kaushambi; that on 26.02.2017 at about 3.45 p.m., three men riding a blue coloured motorcycle arrived and parked in a grove of another native of the village one Raj Bhushan son of Munnu, where they had some refreshment; and, that thereafter two of the three persons shot the third, whose dead body was lying at the place of occurrence. The short First Information Report closed with a request that the informant had come over to give information, on the basis of which necessary action may be taken.
5. It was during investigation that the name of the revisionist surfaced and he was arrested. An application was made on behalf of the revisionist that his date of birth was 17.12.1999 according to a Mark Sheet attached to the application, and, that according to the aforesaid date of birth, on the date of occurrence he was a minor. As such, it was prayed that he may be declared a juvenile. In support of the plea of juvenility, CW-1 Peter Valentine deposed that the revisionist Gautam @ Baba Thakur was a student in his School and according to the S.R. Register his date of birth was 17.12.1999. It was stated that the said date of birth had been mentioned by his guardian who had filled up the admission form, which was available in the school record. The name of the revisionist was entered in the S.R. Register at Sr. no.1021, a photostat copy whereof was produced at the hearing before the Board.
6. In addition, the revisionist filed his High School Certificate of the Board Examination, 2013, a perusal of which shows that he sat the Board Examination with Roll No.50004820 as a regular candidate and passed the High School Examination in the year 2013. The High School Certificate shows the name of the revisionist's father as Sant Lal and mother's name as Kaushalya. The date of birth of the revisionist in his High School Certificate has been shown as 17.12.1999. The Board upon perusing all these details came to the conclusion that on the date of occurrence the age of the revisionist/ juvenile/ child in conflict with law was 17 years 2 months and 9 days. Accordingly, by an order dated 07.04.2017, the revisionist was declared a juvenile.
7. Thereafter, the revisionist moved the Juvenile Justice Board for bail through Bail Application no.16 of 2017 pleading a case essentially that there was no case for the prosecution against him on merits, and, in any case notwithstanding the nature of the offence of which he was charged, he was entitled to bail as his case did not fall in any of the disentitling categories under the proviso to Section 12(1) of the Act. The case that was placed on behalf of the prosecution before the Board was to the effect that the juvenile in conspiracy with another person going by the name Ravindra, in the night intervening 28/29.05.2016, had done to death one Banti son of Babbu (not the present crime). It was pointed out to the Board that it had come in investigation that the juvenile in order to conceal the offence of the murder of Banti, conspired with Ram Chandra and Sajan to do Ravindra to death, and, accordingly, the juvenile in conspiracy with Ram Chandra and Sajan murdered Ravindra. It was also urged by the prosecution that the weapon of offence was recovered from possession of the juvenile.
8. The Juvenile Justice Board recorded that the District Probation Officer had submitted a Social Investigation Report favouring the juvenile to say that he was a boy of good character and amiable habits. He had no previous criminal history, but those observations are close tailed by the remark that according to the police papers, it is evident that the juvenile was involved in a murder case in Mahoba, where a case in that connection was registered. As such, it was remarked by the Board in the order dealing with the revisionist's bail plea that the input in the Social Investigation Report submitted by the District Probation Officer to the effect that on enquiring about the revisionist in his neighbourhood, the District Probation Officer found that the juvenile had no criminal history, appears to be incorrect information.
9. The Board, therefore, proceeded to hold, considering the fact that the revisionist/ juvenile along with the deceased Ravindra faced the charge of the murder of Banti in District Mahoba, and, later on, along with Sajan he was charged with murdering Ravindra, there was good reason to conclude that in case the juvenile were released, he would come into association with known criminals that would lead, in turn, to the juvenile being exposed to moral, physical and psychological danger. Then there is without much reason a conclusion that releasing the juvenile on bail would lead to the ends of justice being defeated. On these findings, the bail application was rejected by the Juvenile Justice Board.
10. In appeal before the Sessions Judge, it was observed regarding the merits of the case against the revisionist that it was a case that rested on circumstantial evidence, where investigation by the police had led to a strong link of circumstances to show that the chain was complete regarding the revisionist's complicity in the crime. It has been held by the learned Judge in appeal that the juvenile has a criminal history, inasmuch as, at Police Station Kotwali Mahoba, Case Crime no.384 of 2016, under Section 302 IPC and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act had been registered against him and at Police Station Manjhanpur, Case Crime no.147 of 2017, under Section 3/25 of the Arms Act had been registered. It was also noticed by the learned Sessions Judge that contrariwise, the District Probation Officer in his report had enumerated that there were no cases registered against the revisionist and his family, which shows that the District Probation Officer had not conscientiously discharged his duties, on account of which he missed reporting or finding out the criminal antecedents of the revisionist. The learned Judge, therefore, opined that where there were apparent discrepancies in the Social Investigation Report, the Juvenile Justice Board were right in discarding the same. The Appellate Court has not considered much of what evidence appears against the revisionist in the present case based on circumstances, except a remark that the circumstances strongly indicate his complicity. Of those circumstances which have not been indicated, the Appellate Judge has largely considered the case of the revisionist on the parameters of three exceptions to the rule of bail to a juvenile embodied in the proviso to Section 12(1) of the Act. In doing so the Appellate Court has taken into consideration the criminal history of two cases against the revisionist and concluded that the fact that the revisionist is an accused in the earlier two cases shows his criminal propensity and his skillful way with crime. The circumstances of his involvement in the previous crime also show that his guardians have no effective control over him, else at such a young age he would not have exhibited moral depravity of this order. It is remarked that the revisionist's complicity in a second case of murder soon after the first and the sharp criminal mind exhibited in the present crime makes it clear that the revisionist faced physical, psychological and moral danger in the event of release, and, that releasing him on bail would lead to the ends of justice being defeated.
11. The learned Appellate Judge has concluded that, therefore, the Juvenile Justice Board have committed no error in rejecting the revisionist's bail plea.
12. In this revision, pitted against concurrent failure before both the courts below, the learned counsel for the revisionist has fallen back upon the argument that on merits there is absolutely no case against the revisionist. It is a case, so far as the revisionist is concerned, where he is not named in the FIR and the circumstances appearing against him are that of confessional statement by a co- accused during investigation, on the basis of which a foisted recovery has been shown from him. It is submitted that if he were on the same evidence an adult he would have been admitted to the concession of bail. It is argued that co-accused Ram Chandra, who is also not nominated in the FIR and his name came to light like the revisionist during investigation, has been enlarged on bail by this Court vide order dated 03.07.2017 passed in Criminal Misc. Bail Application no.23032 of 2017.
13. It is no doubt true that the case against the revisionist rests on circumstantial evidence, not of a very clinching nature. The State has not pointed out on merits a watertight case against the revisionist. Even if there were to be a strong case on merits against the revisionist, he would still be entitled to bail, as a matter of right, unless his case fell into one or other of the three exceptions embodied in the proviso to Section 12(1) of the Act. But before those exceptions are looked into, the submission of the learned counsel for the revisionist that looking to the case against the revisionist, rests as it does purely on weak circumstantial evidence not of a clinching character, if he were an adult he would have been admitted to the concession of bail, requires careful consideration. In the context of the said submission, it would be relevant to refer to the decision of this Court in Criminal Revision no.4141 of 2017, Dharmendra (Junvenile) vs. State Of U.P. & Another, decided on 13.04.2018, where it has been held thus:-
10. The matter can be looked at from another vantage. In case the revisionist were an adult and stood charged of the offence that he faces with a weak circumstantial evidence of last seen and confession to the police, in all probability, it would have entitled him to bail pending trial. If on the kind of evidence forthcoming an adult would be entitled to bail, denying bail to a child in conflict with law may be denying the juvenile/ child in conflict with law the equal protection of laws guaranteed under Article 14 of the Constitution.
11. The rule in Section 12(1) of the Act is in favour of bail always to a juvenile/ child in conflict with law except when the case falls into one or the other categories of denial contemplated by the proviso. It is not the rule about bail in Section 12 of the Act that in case a child in conflict with law is brought before the Board or Court, his case is not to be seen on merits prima facie about his complicity at all for the purpose granting him bail; and all that has been done is to see if his case falls is one or the other exceptions, where he can be denied bail. The rule in Section 12 sanctioning bail universally to every child in conflict with law presupposes that there is a prima facie case against him in the assessment of the Board or the Court based on the evidence placed at that stage. It is where a case against a child in conflict with law is prima facie made out that the rule in Section 12(1) of the Act that sanctions bail as a rule, except the three categories contemplated by the proviso comes into play. It is certainly not the rule, and, in the opinion of the Court cannot be so, that a case on materials and evidence collected not being made out against a child at all, his case has to be tested on the three parameters where bail may be denied presuming that a prima facie case is constructively there. Thus, it would always have to be seen whether a case prima facie on merits against a child in conflict with law is there on the basis of material produced by the prosecution against him. If it is found that a prima facie case on the basis of material produced by the prosecution is there that would have led to a denial of a bail to an adult offender, in that case also the Rule in Section 12(1) of the Act mandates that bail is to be granted to a juvenile/ child in conflict with law except where his case falls into any of the three disentitling categories contemplated by the proviso.
12. In the opinion of this Court, therefore, the perception that merits of the case on the basis of prima facie evidence is absolutely irrelevant to a juvenile's bail plea under the Act would not be in conformity with the law. The catena of decisions that speak about merits of the case or the charge against a juvenile being irrelevant, proceed on facts and not an assumption that a case on merits is made out, and, not where the case is not at all made out prima facie. It is not that a child alleged to be in conflict with law against whom there is not iota of evidence to connect him to the crime would still have bail denied to him because his case may be placed in or the other disentitling categories under the proviso to Section 12(1) of the Act. If this kind of a construction were to be adopted it might expose the provisions of Section 12(1) of the Act to challenge on ground of violating the guarantee of equal protection of laws enshrined in Article 14 of the Constitution. It is an enduring principle that a construction that lends a statute to challenge about its constitutionality should be eschewed and one that saves and upholds its vires is to be adopted. In this context the guidance of their Lordships of the Hon'ble Supreme Court in Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 may be referred to:-
"51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of 'litera legis'. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution."
14. Considered in the aforesaid perspective, no such clinching circumstance has been pointed out that may on merits of the charge disentitle the revisionist to the liberty of bail when on similar evidence of circumstantial nature, an adult co-accused Ram Chandra has been admitted to bail by this Court in Criminal Misc. Bail Application no.23032 of 2017, decided on 03.07.2017. There is no reason to deny the same treatment to the revisionist merely because he is a juvenile.
15. Assuming for the moment that there is evidence of a circumstantial nature appearing against the revisionist, in the opinion of this Court the fact that the revisionist has been implicated in two criminal cases by the police, both of murder and both based on circumstantial evidence, where the revisionist in any one of those has not been found guilty as yet, could also be attributed to one implication by accident or freak of misfortune and the second one on account of the fact, as the learned counsel for the revisionist submits, that after the first implication, howsoever false, the name of the revisionist was introduced to the police. This would not have been a very reasonable possibility, if any of the cases against the revisionist, were based on direct evidence or a specific role with nomination in the crime. But looking to the fact that one after the other on the basis of circumstantial evidence, the revisionist has been consecutively implicated in a similar crime, points more to the possibility, rather than the revisionist being exposed to moral, physical or psychological danger in the event of release from jail, of being perpetually exposed to the peril of false implication and on way to making a criminal history for himself written by an insensitive investigation agency tasked with working out blind or unsolved murders. The fact that the Social Investigation Report gives inputs about the revisionist's family and also about him as law abiding citizens with no criminal background, may, in fact, not be an ill- informed report as opined by the Sessions Judge. To the contrary the said report may be based on truthful and general perception about the juvenile in his neighbourhood and amongst his associates about how the revisionist really is. If the revisionist is not a murderer or a criminal, but is framed by the police, once by accident and in the second instance by convenience, the opinion about him in the neighbourhood and amongst his associates would not change so as to make its way to the Social Investigation Report. At the stage, therefore, when nothing is known yet about the truthfulness of the allegations in the two cases that are cited as criminal history for the revisionist, this Court feels that it is the Social Investigation Report which is to be believed more to hold that the case of the revisionist does not fall in any of the three exceptions to the proviso to Section 12(1) of the Act.
16. In the considered opinion of this Court, both the courts below have committed manifest illegality in not extending to the revisionist his right to be released on bail.
17. In the result, this revision succeeds and is allowed. The impugned order dated 04.12.2017 passed by the learned Additional Sessions Judge, Court no.3, Kaushambi in Criminal Appeal No.13 of 2017 and the order dated 19.05.2017 passed by the Juvenile Justice Board, Kaushambi in Case Crime no.133 of 2017, under Section 302 IPC read with Section 3(2)(5) of the SC/ST (Prevention of Atrocities) Act, Police Station Manjhanpur, District Kaushambi, are hereby set aside and reversed. The bail application made on behalf of the revisionist through his father stands allowed.
18. Let the revisionist, Gautam alias Baba Thakur through his natural guardian/ father Sant Lal be released on bail in Case Crime no.133 of 2017, under Section 302 IPC read with Section 3(2)(5) of the SC/ST (Prevention of Atrocities) Act, Police Station Manjhanpur, District Kaushambi upon his father furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Kaushambi subject to the following conditions:
(i) that the natural guardian/father Sant Lal will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the father will ensure that the juvenile will not repeat the offence.
(ii) The revisionist and his father Sant Lal will report to the District Probation Officer on the first Monday of every calendar month commencing with the first Monday of August, 2018 and if during any calendar month the first Monday falls on a holiday, then on the following working day.
(iii) The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Kaushambi on such periodical basis as the Juvenile Justice Board may determine.
Order Date :- 26.07.2018 Anoop