Court No. - 49
Case :- CRIMINAL REVISION No. - 2336 of 2017 Revisionist :- Patua Alias Nirbhay Pratap Singh (Minor) Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Vikram D. Chauhan Counsel for Opposite Party :- G.A.,Deepak Dubey
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Vikram D. Chauhan, learned counsel for the applicant, learned A.G.A. and Sri Deepak Dubey, learned counsel for the opposite party no. 2.
2. The present criminal revision has been filed to quash the order dated 22.04.2017 passed by the Special Judge (POCSO Act)/Addl. Session Judge, Court No. 12, Moradabad in Criminal Appeal No. 36 of 2017 filed against the order dated 28.02.2017 passed by the Juvenile Justice Board, Moradabad in Case Crime No. 105 of 2017 rejecting the bail application of the Juvenile in Case Crime No. 214 of 2016, under Sections- 147, 148, 149, 452, 302 I.P.C., Police Station- Kurfatehgarh, District- Sambhal.
3. Learned counsel for the applicant submits:
(i) admittedly, the applicant was a juvenile on the date of alleged incident being 15 years and 7 months of age; (ii) the applicant has been falsely implicated in the present case owing to the undeniable old animosity existing between the families of the applicant and of the opposite party no. 2. Arising from such animosity earlier allegations of murder committed by the family members of the opposite party no. 2 exist; (iii) there is no criminal history of the applicant; (iv) there is no hope of early conclusion of the trial; (v) the applicant has remained confined in the child observation home for an unduly long period of time, since 09.12.2016 and; (vi) 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 and; (vii) therefore, the impugned orders have been assailed as erroneous and contrary to law.
4. Learned counsel for the applicant has further relied on a recent decision of this Court in the case of Ankur (Minor) Vs. State of U.P. and Another reported in 2018 (8) ADJ 240 wherein this Court after taking note of the provisions of Section 12(1) of the Act and an earlier decision of this Court in the case of Juryodhan @ Vijay Sagar Vs. State of U.P. passed in Criminal Revision No. 2602 of 2017 decided on 19.04.2018, opined that the gravity of the charge or allegation cannot be cited as a ground to deny bail to a Juvenile and/or a child in conflict with law, in view of the statutory principle contained in Section 12(1) of the Act. He would therefore submit that insofar as the Juvenile offender is concerned, that too below the age of 16 years, bail is a rule and rejection of the bail is an exception for which special reasons must be shown to exist such as the juvenile being prone to criminal psychology, criminal proclivity or some other circumstance as may warrant rejection of the bail under the proviso to Section 12(1) of the Act. He would thus submit that in the case of the present applicant no fact or circumstance exists and no special reasons have been assigned to reject the bail to the applicant. Neither the applicant has any criminal history nor does his mother (in whose care he would be kept upon being released), has any criminal history.
5. Sri Deepak Dubey, learned for the opposite party no. 2 on the other hand submits that this is a case of most heinous offence where four persons had been brutally murdered one after the other at difference places. A pre-planned brutal assault had been made by the applicant and his family members. It is therefore submitted that it is in the interest of justice that the applicant be not released on bail. Reliance has been placed on a decision of the Supreme Court in the case of Jitendra Singh @ Babboo Singh Vs. State of U.P. reported in 2013 (83) ACC 651 and a decision of this Court in the case of Anuj @ Prasoon Shukla Vs. State of U.P. and Another reported in 2016 (96) ACC 585.
6. Learned A.G.A. has also opposed grant of bail of the applicant.
7. Having considered the argument so advanced by learned counsel for the parties, it is seen that undisputedly the denial of bail can only be made upon satisfaction of the conditions mentioned in the proviso to Section 12(1) of the Act. In so far as the decision of the Supreme Court in the case of Jitendra Singh Vs. State of U.P. (S.C.) (supra) is concerned, it only states the principle being relied upon by the learned counsel for the applicant that ordinarily a juvenile in conflict with law be released on bail and that he may be denied bail, if there exist reasonable grounds to believe that such release is likely 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 aforesaid judgment does not, therefore, appear to lay down any other principle of law on which the opposite party no.2 may claim that the present applicant be denied bail.
9. In so far as the present applicant is concerned, from the fact narration made in the FIR, it appears that though four occurrence at separate places have been disclosed as having been taken place as part of a series or sequence of a single string of assaults. In that regard, the applicant was not named as a person present or a person accompanying the named assailants in the first assault wherein Sushil was done to death or in the second assault in which Shakuntala was done to death or even in the third incident wherein Sunil was done to death. The name of the applicant first surfaces thereafter in the alleged fourth and last assault on Vishambhar. Also, certain statements exist as to the disapproval by the family of the applicant to a relationship between the Sushil and the niece of Mahesh who had married against the wishes of her family owing to existing bad relations between the two families arising from certain murder that had taken place in which the family members of the present opposite party no. 2 are/were accused persons.
10. Further, the father of the present applicant is still in jail and it is the mother of the applicant who assures to keep the applicant safe. In such circumstance, the applicant cannot be denied bail in view of the observation of the Supreme Court in the case noted above Jitendra Singh @ Babboo Singh Vs. State of U.P. (S.C.) (supra). Similarly, no benefit can be had from the judgment of this court in the case of Anuj @ Prasoon Shukla Vs. State of U.P. and Another (supra). In the first place, there is no doubt as to the claim of juvenility made by the applicant and, therefore, no reliance may be placed on the decision of the Supreme Court in the case of Om Prakash Vs. State of Rajasthan and Another as had been done in the case of Anuj @ Prasoon Shukla Vs. State of U.P. and Another (supra). Second, in view of the fact noted above, there appears doubt as to the involvement of the present applicant in the offence alleged and in any case it cannot be forgotten that he has remained confined for a period of more than two and half years in jail.
11. 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'.
12. 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?
13. 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.
14. Thus, it remains largely undisputed that the applicant - was a juvenile on the date of occurrence; 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 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.
15. 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 22.04.2017 passed by the Special Judge (POCSO Act)/Addl. Session Judge, Court No. 12, Moradabad in Criminal Appeal No. 36 of 2017 filed against the order dated 28.02.2017 passed by the Juvenile Justice Board, Moradabad are hereby set aside.
16. In view of the observations made above, the present criminal revision is allowed. Let the applicant Patua @ Nirbhay Pratap Singh (Minor) 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 :- 12.9.2018 Abhilash