(Order on Criminal Misc. Exemption Application No. Nil of 2021)
1. Let this application be numbered by the office.
2. This application has been filed, seeking exemption from filing a certified copy of the order dated 18.01.2020 passed by the Juvenile Justice Board, refusing bail to the revisionist.
3. In the circumstances disclosed in the supplementary affidavit filed in support of the application, and a further supplementary affidavit dated 04.01.2021, this application stands allowed.
(Order on Criminal Revision)
1. A supplementary affidavit (supported by a declaration) filed in Court today is taken on record.
2. The revisionist Kishun Kumar alias Krishna Kumar, a minor, has preferred this revision under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 20151, disillusioned by a refusal of his bail plea by the two courts below.
3. The short case of the prosecution, largely gathered from the First Information Report, is that on 16.10.2018, at about 08:45 p.m., Sunita, wife of Sundar, a cousin of Suraj Ram, the informant, had gone out to answer the call of nature. Seeing this as an opportunity, Lal Mani, son of Ram Jeet, Kishun son of Lal Mani (the revisionist), Awadhesh son of Ramjit, Dileep son of Nand Kumar, and Roshan son of Bal Kishan, besides some others, all of whom are the informant's co-sharers, with a common intention, assaulted Sunita. They did so employing sticks (lathi-danda) and an indigenous dagger (katari). The ensuing sounds of distress were heard by the informant's brother, Sant Lal, his uncle Jogi, Jogi's wife Pyari, who rushed to Sunita's rescue. The rescuers were also assaulted and badly injured. The informant's brother, Sant Lal was in a precarious condition. He was, therefore, moved for medical attention to the Primary Health Centre, Bardah, Azamgarh. There was no doctor available at the Primary Health Centre, and the injured was conveyed to the District Hospital, Jaunpur. The doctors there declared him "brought dead".
4. A written information about the said occurrence was lodged with the police by the informant-opposite party no. 2, Sarju Ram, on the basis of which, the police registered Case Crime No. 235 of 2018, under Sections 147, 148, 304, 323, 506 I.P.C., Police Station - Bardah, District - Azamgarh. The revisionist made an application to the Juvenile Justice Board, Azamgarh2, praying that he be declared a juvenile. The Board, by their order dated 01.01.2020, held the revisionist to be aged 16 years, 2 months and 30 days on the date of occurrence. The revisionist was, therefore, declared a juvenile. He then applied for bail to the Board through his father and natural guardian, Lal Mani. This application, bearing number 137 of 2019, came to be rejected by the Board vide order dated 18.01.2020. The revisionist carried an appeal to the learned Sessions Judge, Azamgarh, under Section 101 of the Act of 2015. The appeal was registered on the file of the learned Sessions Judge as Criminal Appeal No. 33 of 2020. This appeal came up for determination before the Additional Sessions Judge/Special Judge, POCSO Act, Azamgarh on 04.11.2020, who proceeded to dismiss the appeal and affirmed the Board.
5. Aggrieved, this revision has been preferred.
6. Notice was issued to opposite party no. 2, vide order dated 08.01.2021, while admitting this revision to hearing. Notice has been served personally upon opposite party no. 2, according to the office report dated 27.01.2021. The office report is based on a report of the Chief Judicial Magistrate dated 22.01.2021. Service upon the second opposite party is, therefore, held good.
7. When the case is called on, no one appears on behalf of the second opposite party.
8. Heard Mr. Yogesh Kumar Mishra, learned counsel for the revisionist and Mr. Dinesh Kumar Srivastava, learned A.G.A. appearing on behalf of the State.
9. It is submitted by learned counsel for the revisionist that the Board has virtually passed a cryptic order, with nothing said on facts about the revisionist's case, or detailing reasons disentitled him to bail under the Act of 2015. The Sessions Judge, too, has committed a manifest error in denying bail to the revisionist, amongst others, on the ground that the revisionist's father and uncle were elders of his family and, through his guardians, are co-accused in the crime; not much can be expected of them to extend good guidance to the revisionist, if he were released in their custody. It is urged to be a reasoning that the learned Sessions Judge has adopted in gross error. It is submitted by learned counsel that the revisionist's elders are not men of criminal propensities. It is a case, at best or for the worst, of a sudden quarrel between co-sharers over a dispute relating to land. According to learned counsel for the revisionist, the learned Judge in appeal ignored the most fundamental aspect, that there was no point in testing the revisionist's case with reference to the disentitling categories postulated under proviso to Section 12(1) of the Act of 2015, inasmuch as the revisionist has a case for bail on merits. Learned counsel has elaborated his submission to show that there is a general role of assault assigned to all the accused, where specific role of assault by katari has been assigned to co-accused Lal Mani. Thus, if the revisionist were an adult, he would, in all probability, be entitled to bail. There is no reason, therefore, to deny him bail with reference to the parameters envisaged under the proviso to Section 12(1) of the Act of 2015. It is also pointed out that the learned Sessions Judge has erred on this score, all the more because the adult co-accused, Lal Mani, who is credited with the role of asasult, employing a katari, has been admited to bail by this Court vide order dated 22.07.2019 passed in Criminal Misc. Bail Application No. 29012 of 2019. The learned Judge completely ignored from consideration this decisive material, which entitles the revisionist to bail.
10. Learned A.G.A. has opposed the prayer to set aside the orders declining bail. He emphasized that the revisionist needs institutional incarceration, because the elders in his family are co-accused in the crime, and it cannot reasonably be expected of them to provide good guidance to the revisionist, where they are partakers in the crime.
11. I have considered the submissions advanced on both sides and carefully perused the record. So far as the Board's disposition of the matter is concerned, not much requires to be said. A reading of the Board's order leaves an impression that doing a paraphrasing of the statutory requirements of Section 12 of the Act of 2015, the bail plea has been mechanically rejected, without any application of mind. The learned Sessions Judge appears to have been much swayed by the fact that the elders in the family are involved in the crime, and therefore, the revisionist, if released on bail into their care and custody, would hardly find guidance to restore him to the mainstream of society. This apart, the learned Judge has thought that the act of the revisionist is such that if he were released on bail, would lead to ends of justice being defeated. It is a matter involving a heinous offence, which impacts the society, and therefore, merits of the crime are not altogether irrelevant.
12. It is true that in a given case, there could be a situation where the nature of the crime may make the merits of the case relevant to judge whether a juvenile's release on bail would lead to ends of justice being defeated, but it must be remembered that the three disentitling categories postulated under the proviso to Section 12 of the Act of 2015 come into play, if a juvenile is not entitled to bail on merits. The rule under Section 12 of the Act of 2015 is one of universal bail. The provisions are, therefore, attracted to the case of a juvenile, where, if he were an adult, would not be entitled to bail. It is in matters like these that the Court, before extending the benefit of the right of bail to a juvenile, must examine whether his case falls into any of the three disentitling categories postulated under the proviso to Section 12(1) of the Act of 2015. If it does, the juvenile may be denied bail. It is in this situation that the enormity, the heinous nature, or the circumstances of the crime may have some relevance or importance, while judging the last parameter, on which bail may be declined to a juvenile, that is to say, ends of justice being defeated by his release. However, in a case where a juvenile, on the merits of the case, would be entitled to bail, that is to say, his entitlement to bail would be there, if he were an adult, there is no reason to further subject the juvenile's case to a scrutiny under the three disentitling parameters postulated under the proviso to Section 12(1) of the Act of 2015. If this were to be the law, the provision under Section 12(1) might be exposed to challenge on the ground of hostile discrimination, as it would affect disadvantageously the liberty of a minor citizen vis-à-vis his adult counterpart.
13. Here is a case where an adult co-accused, Lal Mani, who is worse placed than the revisionist, has been admitted to bail by this Court. This fact was specifically brought to the learned Judge's notice that an adult co-accused in this crime has been admitted to bail, and yet the Appellate Court chose to test the juvenile's case with reference to the provision under Section 12 of the Act of 2015. This approach of the learned Judge, in the opinion of this Court, is clearly flawed. This Court does notice that co-accused Lal Mani, who has been granted bail, is a co-accused who has been credited with the primal role in this offence, that is to say, commission of assault by a katari. So far as the revisionist is concerned, there are general allegations against him, along with four others. In this position, if the revisionist were an adult, surely he would have been released on bail. There is no reason, therefore, to deny him bail, because he is a minor, governed by the provisions of the Act of 2015.
14. In the result, this revision succeeds and stands allowed. The judgment and orders dated 18.01.2020 and 04.11.2020, passed by the Board and the Additional Sessions Judge/Special Judge (POCSO Act), Azamgarh, respectively, are hereby set aside and reversed. The bail application of the revisionist stands allowed.
15. Let the revisionist, Kishun Kumar alias Krishna Kumar, through his natural guardian/father, Lal Mani, be released on bail in Case Crime No. 235 of 2018, under Sections 147, 148, 304, 323, 506 I.P.C., Police Station - Bardah, District - Azamgarh, 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, Azamgarh, subject to the following conditions :
(i) that the natural guardian/father, Lal Mani 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, Lal Mani, will report to the District Probation Officer on the first Monday of every calendar month commencing with the first Monday of March, 2021 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, Azamgarh on such periodical basis as the Juvenile Justice Board may determine.
(iv) The party shall file a computer-generated and self-attested copy of order downloaded from the official website of High Court, Allahabad.
(v) The Court/Authority/Official concerned shall verify the authenticity of that computerized copy of the order from the official website of High Court, Allahabad and shall make a declaration of such verification in writing.
Order Date :- 9.2.2021 I. Batabyal