Court No. - 76
Case :- CRIMINAL REVISION No. - 1586 of 2020 Revisionist :- Rahul Nishad @ Vivak Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Atharva Dixit,Ashwini Kumar Awasthi,Manish Tiwary(Senior Adv.) Counsel for Opposite Party :- G.A.,D.M.Tripathi
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Atharva Dixit, learned counsel for the revisionist, Sri Nagendra Pratap Singh, Advocate holding brief of D. M. Tripathi, learned counsel for the opposite party no. 2 and Sri G. P. Singh, learned A.G.A. for the State.
Sri Nagendra Pratap Singh, Advocate has sought adjournment as the main counsel is not present today.
This case was taken up yesterday and last opportunity was given to learned counsel for the opposite party no. 2 directing him to argue today this case positively but he has sought adjournment through his brief holder, hence the same is refused.
This Criminal Revision has been preferred against the impugned order dated 01.11.2019 passed by the Juvenile Justice Board and the impugned order dated 12.03.2020 passed by the Additional District and Sessions Judge/Special Judge, P.O.C.S.O. Act, Allahabad, in Criminal Appeal No. 162 of 2019 (Rahul Nishad @ Vivek v. State of U.P. and another) arising out of Case Crime No. 392 of 2019, under Sections 302, 201, 34 of I.P.C. and Section 3(2)(v) of S.C./S.T. Act, Police Station Naini, District Allahabad.
As per F.I.R., which was lodged by Nankau Bhartiya, it has been stated that he had got lodged missing report of his nephew Vikas Kumar on 17.04.2019, whose dead body was found later on. As per post-mortem report, the deceased was found to have suffered four injuries including lacerated wound, multiple abrasion on chest and one lacerated wound on right side angle of mouth and the cause of death is recorded asphyxia as a result of ante mortem strangulation.
Learned counsel for the revisionist has submitted that Juvenile Justice Board and Additional District and Sessions Judge/Special Judge, P.O.C.S.O. Act, Allahabad both the forums have rejected the bail application of the revisionist erroneously because they have not taken into consideration while hearing the bail applicant of the juvenile, the provision which is provided under Section 12 of the Juvenile Justice (Care and Protection of Children), Act, 2000 which provides that the bail of the juvenile can be dismissed only if the court satisfies itself that release of the accused on bail would bring him in association with known criminal or that it would expose him into moral, physical or psychological danger or the ends of justice would be defeated. Though the learned counsel for the revisionist has not annexed the report of District Probation Officer but the same finds mention in the order of the appellate court dated 12.03.2020 which is impugned before this Court in which in paragraph no. 12, it is mentioned that social condition of the revisionist is normal and economic condition is poor and there is possibility of reform in his family atmosphere. Nothing adverse has been recorded as he was not found to have any criminal antecedents and therefore, it is argued that the appellate court as well as Juvenile Justice Board have rejected the bail application only on the ground of the offence being of grave nature which has alleged to have been committed by the accused revisionist. He has also drawn attention towards the age determination order dated 03.09.2019 of the revisionist wherein he was found to be 15 years, 8 months and 7 days old. Therefore, it is argued that the revisionist is below 16 years. Learned counsel for the accused revisionist contends that the other co-accused Vikas Kumar Nishad (Juvenile) has already been granted bail by co-ordinate bench of this Court vide order dated 02.12.2020 in Criminal Misc. Bail Application No. 29925 of 2020 in the present crime number, hence, on parity, this accused-revisionist also deserves to be released on bail. The accused-revisionist is lying in jail since 09.04.2018, As regards merits, no recovery of any incriminating article has been made from the revisionist pursuant to his arrest while from his brother recovery of mobile phone belonging to the deceased was made. There is no evidence gathered by the investigating officer against the revisionist.
In view of the above, this is found to be a fit case for grant of bail. The revision deserves to be allowed and is accordingly allowed. The impugned order of Juvenile Justice Board dated 01.11.2019 as well as order dated 12.03.2020 of the appellate court are set aside.
Let the Juvenile revisionist- Rahul Nishad @ Vivak (Minor) be released on bail on his father Sri Kailash Nishad furnishing a personal bond of Rs. one lac and two sureties of the like amount to the satisfaction of the Juvenile Justice Board on furnishing an undertaking that he shall not allow the revisionist to come in association with any hardened criminal and shall take care of his education and well being and that on each and every date of trial, he shall also appear before the court concerned. In case, he makes any default, the prosecution shall be at liberty to move for cancellation of his bail.
Order Date :- 7.1.2021 VPS