Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53551 of 2021 Applicant :- Lalau Pal @ Mithlesh Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Deena Nath Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Deena Nath Joshi, learned counsel for applicant, learned A.G.A. for State and Mr. Bal Krishna Pandey, Advocate, who has put in appearance on behalf of first informant by filing his vakalatnama in Court today, which is taken on record.
Perused the record.
This application for bail has been filed by applicant- Lalau Pal @ Mithlesh Kumar seeking his enlargement on bail in Case Crime No.0029 of 2021, under Section- 302 I.P.C., Police Station- Karaili, District- Allahabad, during pendency of trial.
Record shows that in respect of an incident which is alleged to have occurred on 26.01.2021, a delayed F.I.R. dated 27.01.2021 was lodged by first informant- Sushil Kumar Pal and was registered as Case Crime No.0029 of 2021, under Section- 302 I.P.C., Police Station- Karaili, District- Allahabad. In the aforesaid F.I.R., three persons, namely, Lalau Pal @ Mithlesh Kumar (applicant herein), Sandeep and Pradeep have been nominated as named accused.
According to prosecution story as unfolded in the F.I.R., it is alleged that on 26.1.2021, same dispute took place in between Sunil Kumar Pal (brother of first informant) and named accused regarding money. Scuffle took place between the parties. Ultimately, Sunil Kumar Pal was assaulted by named accused on account of which he died.
Subsequent to aforesaid F.I.R., inquest of the deceased was conducted on 27.01.2021. In the opinion of panch witnesses, the nature of death of the deceased was homicidal. Thereafter, the post-mortem of the body of deceased was conducted. In the opinion of autopsy surgeon, cause of death of the deceased was shock and comma as a result of ante-mortem injuries. The autopsy surgeon found following ante-mortem injuries on the body of deceased.
(1) Contusion swelling 11 cm x 7 cm on Lt side back of skull.
(2) Multiple contusion all over back of buttock to both lower limb on cut section Hematoma present.
(3) Abrasion contusion all over Rt. forearm on back side on cut section Hematoma present.
(4) Multiple abrasion contusion all over Lt. upper arm.
Police upon completion of statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C., ultimately submitted a charge-sheet dated 06.03.2021, whereby named accused have been charge-sheeted under section 302 I.P.C.
Learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in above-mentioned case crime number. Allegations made in F.I.R. are false and concocted. No conviction of applicant under section 302 I.P.C. is possible as per the allegations made in F.I.R. and the post- mortem report of the deceased. No recovery has been made from the applicant. Applicant is in jail since 28.01.2021. As such, applicant has undergone more than 10 months of incarceration. Applicant has criminal history, which has been explained in paragraph-11 of the affidavit filed in support of bail application. In case, applicant is enlarged on bail, he shall not misuse the liberty on bail and shall co-operate with the investigation.
It is then contended that co-accused Pradeep Pal and Sandeep Pal have already been enlarged on bail by this Court vide orders dated 23.11.2021 and 09.12.2021 passed in Criminal Revision No.1768 of 2021 and Criminal Misc. Bail Application No.24761 of 2021 respectively. For ready reference, above- noted orders are reproduced herein under:-
Criminal Revision No.1768 of 2021 (Pradeep Pal Vs. State of U.P. and Another) "Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.
The instant Criminal Revision is directed against the order dated 08.07.2021 passed by Additional District and Sessions Judge/Special Judge (POCSO Act), Allahabad in Criminal Appeal No.38 of 2021 (CNR No.UPAD01-006353-2021) (Pradeep Pal vs. State of U.P.) as well as order dated 19.03.2021 passed by learned Juvenile Justice Board, Allahabd/Prayagraj arising out of Case Crime No.29 of 2021, under Section 302 I.P.C., Police Station Kareli, District Prayagraj/Allahabad, whereby the application for releasing the revisionist on bail has been rejected by the courts below.
Service of notice upon opposite party no.2 is deemed to be sufficient as per report of Chief Judicial Magistrate, Allahabad. However, none appeared on behalf of the opposite party no.2.
It has been submitted by learned counsel for the revisionist that the revisionist is innocent who has falsely been implicated in the present case. He has further submitted that the revisionist hails from a family who have no criminal history. His further submission is that both the courts below have been swayed by the alleged seriousness of the offence, whereas for the purposes of enlarging the revisionist on bail under proviso to Section 12(1) of The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as Act of 2015) is significant, which has been overlooked by the court below, therefore, impugned judgment and orders are not sustainable in the eyes of law. He has further submitted that revisionist is confined in the Children Reformatory Home since 28.01.2021. The only three years institutional incarceration is permissible for a juvenile, under Section 18(1)(g) Act of 2015.
In particular, the learned Counsel for the revisionist has drawn the attention of the Court to the social investigation report, which clearly shows that the revisionist belongs to a poor family with no criminal record and no disentitling facts.
Per contra, learned A.G.A. submits that the revisionist though a juvenile in conflict with law, is a budding criminal. He is involved in an offence which has serious adverse societal impact. His further submission is that upon his release, there is every likelihood that he will come into association with known criminals, that would lead to the revisionist facing physical, psychological and moral danger. It is, therefore, submitted by the learned A.G.A. that the revisionist's case falls under the disentitling contingencies postulated under the proviso to Section 12(1) of the Act of 2015. However, he could not dispute the fact that the social investigation report dated 16.03.2021, annexed as Annexure No.SA-1 to the supplementary affidavit does not disclose existence of any disentitling facts.
This Court has keenly considered the rival submissions and perused the records.
The revisionist was declared a juvenile vide order dated 05.03.2021 passed by Juvenile Justice Board, Khuldabad, Prayagraj in Case Crime no.29 of 2021, under Section 302 I.P.C., Police Station Kareli, District Prayagraj/Allhabad and he was held to be a juvenile, aged about 17 years 06 months and 11 days on the date of occurrence and this fact remains undisputed.
Bail can be denied to a juvenile in the circumstances enumerated under the proviso to Section 12(1) of the Act of 2015. Section 12 reads:
"12. 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.
(2) When such person having been apprehended is not released on bail under sub-section (1) by the officer in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.
(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."
From the perusal of the F.I.R. and the overall facts and circumstances of the present case, it is revealed that the revisionist had no criminal history prior to the present case. His family members too have no criminal history. A perusal of the social investigation report dated 16.03.2021 also clearly projects that the revisionist belongs to a poor family with no criminal record and no disentitling facts. The entire report does not indicate any credible fact or factor which brings the case of the revisionist in any of the three disentiteling reasons postulated under the proviso to Section 12(1) of the Act of 2015.
A perusal of the impugned orders passed by the Juvenile Justice Board and court below show that the both courts below have been swayed by the fact that the nature of offence is heinous and therefore, they have concluded that the case of revisionist falls in the three disentitling exceptions postulated under under the proviso to Section 12(1) of the Act of 2015. This Court in the case of Shiv Kumar alias Sadhu vs. State of U.P. 2010 (68) ACC 616 (LB) has held that the gravity of the offence is not relevant consideration for refusing grant of bail to the juvenile. There is nothing on record which substantiates the aforesaid findings/conclusion of the courts below. The aforesaid finding of the courts below is thus, based on surmises and conjunctures only.
In view of the overall facts and circumstances of the case and the mandate of the proviso to Section 12(1) of the Act of 2015, this Court is of the considered opinion that there is nothing on record on the basis of which it can be inferred that the revisionist's case is one that falls into any of three exceptions postulated under the proviso to Section 12(1) of the Act of 2015. The courts below have acted with material irregularity.
The instant revision, thus, deserves to succeed for the reasons mentioned herein above.
In the result, the instant criminal revision succeeds and is allowed. The impugned order dated 08.07.2021 passed by Additional District and Sessions Judge/Special Judge (POCSO Act), Allahabad in Criminal Appeal No.38 of 2021 (CNR No.UPAD01-006353-2021) (Pradeep Pal vs. State of U.P.) as well as order dated 19.03.2021 passed by learned Juvenile Justice Board, Allahabd/Prayagraj arising out of Case Crime No.29 of 2021, under Section 302 I.P.C., Police Station Kareli, District Prayagraj/Allahabad, are hereby, set aside and reversed. The bail application of the revisionist stands allowed.
Let the revisionist, Pradeep Pal through his natural guardian father be released on bail in Case Crime no.29 of 2021, under Section 302 I.P.C., Police Station Kareli, District Prayagraj upon his natural guardian 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, Khuldabad, Prayagraj subject to the following conditions:
(i) that the natural guardian father 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 mother will ensure that the juvenile will not repeat the offence.
(ii) The revisionist and his natural guardian will report to the District Probation Officer on the first Monday of every calendar month, commencing with the first Monday of January, 2022 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, Khuldabad, Prayagraj on such periodical basis as the Juvenile Justice Board may determine."
Criminal Misc. Bail Application No.24761 of 2021 (Sandeep Pal Vs. State of U.P.) "Heard Sri Deena Nath, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No.29 of 2021, registered under Sections 302 I.P.C., Police Station Karaili, District Allahabad during pendency of the trial.
Learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. As per FIR, role of assault has been assigned to all named accused by lathi. The applicant is relative of the deceased. It is contended that general role has been assigned to three accused persons. Nothing has been recovered from the pointing out of the applicant. From the statement of informant it is clear that Lalau, who is involved in the case and co-accused had taken deceased to hospital. Informant, who is brother of deceased, in spite of knowing Lalau and Pradeep are involved in assaulting the deceased permitted him to carry deceased to hospital and also he did not accompany him. Story create doubt. There is no independent witness. The applicant having criminal history of three cases, the same have been explained in para 8 of the supplementary affidavit. The applicant is languishing in jail since 28.01.2021. In case, the applicant is released on bail, he will not misuse the liberty of bail and co-operate in trial.
Learned A.G.A. has opposed the bail prayer of the applicant and submits that the applicant is named in the FIR and having criminal history of three cases, hence, the applicant is not entitled for bail.
Considering the material available on record and keeping in view the nature of the offence, argument advanced on behalf of the parties, evidence on record regarding complicity of the accused and the Apex Court view pertain to the Article 21 of the Constitution of India held in In human conditions in 1382 Prisons, In re: (2017) 10 SCC 658 and the mandate laid down by Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant, Sandeep Pal, who is involved in the aforesaid case crime, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
4. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail."
On the aforesaid premise, learned counsel for applicant contends that case of applicant is similar and identical to aforesaid co-accused. There is no such distinguishing feature on the basis of which case of applicant can be said to be distinguishable from aforesaid co-accused. As such, applicant is also liable to be enlarged on bail on the ground of parity.
Learned counsel for applicant has next invited attention of Court to the post-mortem report of the deceased. On the basis of above, it is submitted that occurrence took place on account of sudden quarrel. As such, there was no mens rea with the applicant to commit the crime. Injuries sustained by deceased are not by themselves sufficient enough to cause the death of deceased. As such, prosecution of applicant can at the most be under section 304 I.P.C. for which maximum sentence is 10 years. On the aforesaid premise, it is thus urged that applicant is liable to be enlarged on bail.
Per contra, learned A.G.A. as well as Mr. Bal Krishna Pandey, learned counsel for first informant have opposed this bail application. They jointly submit that applicant is a named as well as charge-sheeted accused. Applicant cannot claim the benefit from above-noted orders dated 23.11.2021 and 09.12.2021. Role of inflicting the laathi blow has been assigned to applicant, on account of which deceased died. However, they could not dispute the factual and legal submissions urged by learned counsel for applicant.
Having heard learned counsel for applicant, learned A.G.A. for State, learned counsel for first informant, upon perusal of record, complicity of applicant and accusations made, this Court finds that applicant has made out a case for bail. Accordingly, bail application is allowed.
Let the applicant Lalau Pal @ Mithlesh Kumar involved in Case Crime No.0029 of 2021, under Section- 302 I.P.C., Police Station- Karaili, District- Allahabad be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions,the prosecution shall be at liberty to move bail cancellation application before this Court.
The party shall file self-attested computer generated copy of this order downloaded from the official website of High Court, Allahabad. The concerned Court / Authority / Official shall verify the authenticity of such 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 :- 20.12.2021 Saif