HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R.
Judgment Reserved on 18.08.2018 Judgment Delivered on 23.08.2018 Court No. - 49 Case :- CRIMINAL REVISION No. - 4000 of 2017 Revisionist :- Keshav Chaturvedi Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Mayank Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard Shri Mayank, learned counsel for the applicant and Shri Nagendra Kumar Srivastava, learned AGA for the State.
The present criminal revision has been preferred against the judgment and order dated 21.11.2017 passed by Additional Session Judge, Court no.1, Mathura, in Criminal Appeal No. 104 of 2017 (Keshav Chaturvedi Vs. State of U.P. and another), and against the judgement and order dated 26.9.2017 passed by Juvenile Justice Board, Mathura on bail application no. 35/2017 (State Vs. Keshav Chaturvedi), arising out of Case Crime No. 1182 of 2016, registered under section 302, 386 I.P.C., Police Station Kotwali, District Mathura, whereby the learned Juvenile Justice Board, Mathura as well as learned appellate court refused bail prayer of accused/revisionist in respect of Case Crime No. 1182 of 2016, registered under section 302, 386 I.P.C., Police Station Kotwali, District Mathura.
Learned counsel for the applicant submits that admittedly the applicant was a juvenile on the date of the alleged incident being 17 years of age while the age of the victim has claimed to be about the same. It is also not disputed that the applicant has remained confined at a child observation home since 24.12.2016, which is for a period of more than one and half years as against the maximum sentence that he may suffer, if found guilty, being of three years.
As to the offence alleged, it is submitted that the applicant has been falsely implicated in the unintentional homicide of his fast friend. In this regard, it is further stated that proper investigation was not conducted by the police and thus the applicant had been wrongly charged with the offence. As to the actual incident, it has been submitted that the deceased and one Madhav Chaturvedi had got involved in a petty scuffle over a loaded country made pistol and that in trying to snatch the same from the other, the trigger of that fire arm got accidentally pressed and the deceased thus received a single fire arm injury that caused his death. The post mortem report does not indicate any other ante mortem injury to the deceased.
It has been submitted that the DPO's report also does not raise any specific or strong objection against the applicant being released and only general and unfounded objections and observation have been made therein. It is further being emphasized that the applicant does not have any criminal record and that even in the DPO's report it has been noted that the deceased was a close friend of the applicant. It is thus submitted, the prosecution allegation that the applicant had been extorting money from the deceased and he had a criminal bent of mind, is not true in view of the specific observations made in the D.P.O.'s report.
Learned counsel appearing for the opposite party no.2 has vehemently opposed the present revision. He has relied upon the following decisions of this Court in:
It has thus been submitted, merely because the applicant is a juvenile it would not entitle him to bail without going into the gravity of the offence, the nature of the crime. He submits, the bail sought for has been rightly refused in view of Section 12(1) of Juvenile Justice (Care and Protection of Child) Act, 2012.
Learned AGA has also opposed the prayer for bail.
Having considered the arguments so advanced by learned counsel for the parties, it is seen that while it is true that a Juvenile offender is not entitled as of right to be enlarged on bail, irrespective of any other fact or circumstance, however, it also cannot be denied that in view of specific and special legislative intent and intervention, refusal of bail in the case of a juvenile may be made only for specific reasons and circumstance. Otherwise, a general legislative presumption does appear to exist under the scheme of the Act that the welfare of alleged juvenile offender would be better served without he being confined for long duration/s. Here, the applicant has remained confined for more than one hand half year.
At present, there does not appear any material as may lead any court to infer any brutality or cold blooded criminal intent on part of the applicant. Neither there is any documented criminal history nor there is any material to infer deep rooted criminal intent. The post mortem report does also not disclose any injury other than a fire arm injury caused by a fire of a fire arm.
The decision in the case of Raju @ Ashish (supra) was a case involving murder after the deceased had objected to the action of the accused in having molested his sister. In the case of Virendra Vs. State of U.P. (supra) was a case of rape and murder of a three and half year old girl child and it was further observed that the juvenile accused was not under control of his father. In the case of Suraj Gupta (supra) was again a case of rape of a very young girl of eight years of age who had been tied up, gaged and then raped. In the case of Ankit Babu Sharma (supra) was a case of double murder which act had been committed in a pre-planned manner. It is further found that no relative of the accused had any control of the offender.
As against the above, gravity of the offence is not relevant consideration for refusing grant of bail to the juvenile as has been held by this Court in Shiv Kumar alias Sadhu Vs. State of U.P. reported in 2010 (68) ACC 616 (LB).
In the present, there is no such glaring fact as may reveal criminal proclivities and/or criminal psychology on part of the applicant. Besides making a general allegation that the applicant had tried to extort money from the deceased and that the deceased was shot dead by the applicant on his refusal to pay such money, at present, there does not appear to exist any criminal history of the applicant. Also, it is not the case where the applicant may not be under the control of his family elders.
The only fact that appears at this stage as may be considered to deprive the applicant of release may be his action to demand money and having shot at the deceased upon being refused such money. This single factor which is yet to be proven again does not lead to firm opinion as to criminal proclivities or criminal psychology of the applicant, keeping in mind the observations made in favour of the applicant, in the DPO's report. Such possibility and the resultant conclusion has also to be balanced with the fact if the applicant would be finally held guilty, the maximum punishment to be awarded would not exceed three years. In this regard the applicant has already been confined at the observation home for more one and a half year.
The court has to see whether the opinion of the learned appellate Court as well as Juvenile Justice Board recorded in the impugned judgment and orders are in consonance with the provision of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act). Section 12 of the Act lays down three contingencies in which bail could be refused to juvenile. They are:-
(1) if the release is likely to bring him into association with any known criminal, or (2) expose him to moral, physical or psychological danger, or (3) that his release would defeat the ends of justice.
Gravity of the offence has not been mentioned as a ground for rejection of bail in Section 12 of the Act.
Considering the above, it appears that the findings recorded by the learned Court below are erroneous and cannot be sustained. The order dated 21.11.2017 and 26.9.2017 in the aforesaid case are hereby set aside.
Accordingly, the present criminal revision is allowed.
Let the revisionist Keshav Chaturvedi involved in the aforesaid case crime be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
(i) The revisionist shall not tamper with the evidence or threaten the witnesses;
(ii) The revisionist through guardian shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law;
(iii) The revisionist through guardian shall remain present before the trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial Court may proceed against him under Section 229-A of the Indian Penal Code.
Order date: 23.8.2018 Prakhar