Court No. - 49
Case :- CRIMINAL REVISION DEFECTIVE No. - 354 of 2018 Revisionist :- Mohd. Aadil @ Ekka Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Dr. Rajesh Kumar Srivastav Counsel for Opposite Party :- G.A.,Ram Kishun Misra
Hon'ble Saumitra Dayal Singh,J.
1. Learned counsel for the applicant has placed on record a notice served on learned counsel for the opposite party no.2 about the mention made in the present proceedings. Despite service of notice, none appears on behalf of the opposite party no. 2 to oppose the present criminal revision.
2. Heard learned counsel for the applicant and learned A.G.A.
3. Cause shown in the affidavit filed in support of the delay condonation application is sufficient. The delay in filing the present revision is condoned. The delay condonation application no. 2 of 2018 is allowed. Office to allot a regular number to this application.
4. The present criminal revision has been filed to quash the order dated 22.11.2016 passed by the Addl. District & Session Judge/Special Judge (SC/ST Act), Ghaziabad in Criminal Appeal No. 106 of 2016 (Aadil @ Ekka Vs. State of U.P.), arising out of order dated 05.10.2016 passed by the Juvenile Justice Board, Ghaziabad in Case Crime No. 1060 of 2015, under Section - 302 I.P.C., Police Station- Shahibabad, District- Ghaziabad.
5. Learned counsel for the applicant submits:
(i) admittedly, the applicant was a juvenile on the date of alleged incident being 17 years 3 months of age;
(ii) the applicant has been completely falsely implicated. In this regard, it is stated that the applicant was not named in the FIR. He had been arrested solely on the basis of confessional statement of the main accused. In any case, no role has been assigned to the applicant such as to suggest ingredients of commission of a heinous offence by the applicant;
(iii) there is no specific or strong objection raised in the DPO report, other than the general and vague observations;
(iv) there is no criminal history of the applicant;
(v) there is no hope of early conclusion of the trial;
(vi) the applicant has remained confined in the child observation home for almost three years, since 30.09.2015 and;
(vii) none of the grounds contemplated under section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) are available, to deny the bail to the applicant.
(viii) therefore, the impugned orders have been assailed as erroneous and contrary to law.
6. Learned A.G.A. vehemently opposed the present criminal revision. It is submitted, the incident reported is true and it is wrong to say that the allegations made against the applicant are false, and/are motivated. Also, reliance has been placed on the findings recorded in the bail rejection orders to submit that the instant revision may be dismissed.
7. It is not in dispute that the applicant is a juvenile and is entitled to the benefits of the provisions of the Act. Under Section 12 of the Act, the prayer for bail of a juvenile may be rejected 'if there appear reasonable grounds for believing that the release of the juvenile is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice'.
8. 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 the Act. Section 12 of the Act lays down three contingencies in which bail may be refused to a juvenile offender. These are:-
(i) if the release is likely to bring him into association with any known criminal, or
(ii) expose him to moral, physical or psychological danger, or
(iii) that his release would defeat the ends of justice?
9. Gravity of the offence has not been mentioned as a ground to reject the bail. It is not a relevant factor while considering to grant bail to the juvenile. It has been so held by this Court in Shiv Kumar alias Sadhu Vs. State of U.P. 2010 (68) ACC 616(LB). It has been consistently followed in subsequent decisions of this court.
10. Thus, it remains largely undisputed that the applicant - was a juvenile on the date of occurance; does not appear to be prone to criminal proclavity or criminal psychology, in light of the observations of the D.P.O; does not have a criminal history; has been in confinement for an unduly long period of time, in as much as the trial has not concluded within time frame contemplated by the Act. Even otherwise, there does not appear to exist any factor or circumstance mentioned in section 12 of the Act as may disentitle the applicant to grant of bail, at this stage. The mother of the applicant has, in para 12 of the affidavit filed in support of this revision has undertaken to address the statutory concerns expressed in section 12 of the Act, as to the safety and well being of the applicant, upon his release.
10. In view of the above, it appears that the findings recorded by the learned Court below are in conflict with the settled principle in law, for the purpose of grant of bail and are erroneous and contrary to the law laid down by this court. Consequently, those orders cannot be sustained. The orders dated 22.11.2016 passed by Addl. District & Session Judge/Special Judge (SC/ST Act), Ghaziabad and dated 05.10.2016 passed by Juvenile Justice Board, Ghaziabad are hereby set aside.
11. In view of the observations made above, the present criminal revision is allowed. Let the applicant Mohd. Aadil @ Ekka involved in the aforesaid case crime be released on bail, on his furnishing personal bond with two sureties each of like amount, to the satisfaction of the court concerned with the following conditions:
(i) The applicant shall not tamper with the evidence or threaten the witnesses;
(ii) The applicant 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 applicant 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 :- 17.9.2018 Lbm/-