Court No. - 17
Case :- CRIMINAL REVISION No. - 4147 of 2016 Revisionist :- Saurabh Alias Monu Pal Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Arun Kumar Tripathi,Devesh Vikram Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Learned counsel for the revisionist Sri Arun Kumar Tripathi is present.
Opposite party no. 2 has been served personally but none has appeared from his side.
Learned A.G.A. has filed counter affidavit, the same is taken on record.
Accused-revisionist has preferred this revision against the judgment and order dated 26.11.2016 passed by Additional Sessions Judge Court No. 1, Farrukhabad passed in Criminal Appeal N. 19 of 2016 (Saurabh @ Monu Pal Vs. State of U.P.), which was filed against the judgment and order dated 11.11.2016 passed by the Juvenile Justice Board in Misc. Criminal Case No. 53 of 2016 (State Vs. Saurabh @ Monu Pal) pertaining to Case Crime No. 793 of 2016 u/s 302 IPC and Section 3(2)(5) SC/ST Act, P.S. Kotwali Farrukhabad, District Farrukhabad, whereby the learned Juvenile Justice Board has dismissed the the bail application of the accused. The said order of dismissal of bail application has been upheld in the judgment and order of appeal dated 26.11.2016. Both the orders i.e. orders of Juvenile Justice Board as well as the appellate court have been challenged before this Court.
In brief, the facts of this case are as follows.
In the intervening night of 9/10.8.2016 at about 12:00 hours, elder brother of the complainant-Shivam had been taken away by the present accused-revisionist along with his companions from his home and thereafter all the four had murdered him by firing upon him. His dead body was found lying on the spot. On the basis of written report of the complainant- Satyam @ Shivam, a case was registered against the present accused-revisionist along with three others u/s 302 IPC and 3(2)5 SC/S.T. Act as Crime No.
793 of 2016, P.S. Kotwali Farrukhabad on 10.8.2016 at 1:30 pm. In the post-mortem conducted by doctor only one fire arm injury has been found, which was caused in the chest of the deceased.
Learned counsel for the revisionist has contended that all the co-accused have been granted bail except the present, but the bail of the present accused-revisionist could not be taken up only because he was juvenile in conflict with law. He is lying in jail since 21.9.2016. For considering the bail of juvenile, as per settled law, the gravity of offence is not to be seen. Only three criteria laid down under Section 12 of the Juvenile Justice Act ought to be taken into consideration which are that, if accused-revisionist is released on bail there is no likelihood of his coming in association with any hardened criminal or that his release would not expose him to any moral, physical and psychological danger/threat or that ends of justice would not be defeated by his release. All these criteria have not been taken into consideration by both the forums and only on the basis of gravity of offence, the bail has been rejected.
The District Probation Officer in it's social investigation report, has not collected any evidence against the accused- revisionist which could point to the fact that in case he would be released on bail, he would come in association with any hardened/known criminal or that it would expose him to any moral, physical and psychological threat/danger or that the ends of justice would be defeated. The said report merely shows that because of his ill- company, he is wanted in this case and no information could be gathered with regard to his conduct nor any criminal history could be traced.
On the other hand, learned A.G.A. has pointed out that the father of the revisionist is an skilled person working in Jaipur; if accused-revisionist is released on bail he would be only under the guardianship of his mother, who would not be able to keep strict vigil over the accused-revisionist, thus he may fall in hands of criminals, hence, bail should be refused to him.
Heard leaned counsel for the revisionist, learned A.G.A. and perused the record.
Perused both the impugned orders.
In Juvenile Justice Board's order dated 28.10.2016, the revisionist has been held to be below 18 years of age on the basis of High School Certificate in which his date of birth is recorded as 20.8.1999. Therefore, on the date of commission of offence, he was approximately 17 years old. The said order has become final, hence the accused- revisionist was juvenile in conflict with law at the time of occurrence.
In the order dated 11.11.2016, the Juvenile Justice Board has relied upon the report of the District Probation Officer and has mentioned that according to the said report, as well as the police report of concerned police station, if the accused-revisionist was released on bail, there would be likelihood of his coming in contact with known criminals. It has further recorded that in case, he was released on bail, it would expose him to moral, physical and psychological danger/threat which would defeat ends of justice. No piece of evidence has been incorporated in that order, on the basis of which he reached the said conclusion. Similarly in the appellate court's order dated 26.11.2016, the said order of the Juvenile Justice Board has been upheld only because it was found that despite being under the supervision of his father, the accused- revisionist was found involved in commission of heinous offence. His company was of criminal elements and that the Probation Officer's report, which was relied upon by the Juvenile Justice Board, was against him as was noted by the Juvenile Justice Board itself and based on that, his bail was also rejected rejecting the appeal.
This Court has intensely gone through the report submitted by District Probation Officer dated 9.11.2016, in which it is mentioned that the revisionist had passed High School on 20.8.1999 and was presently studying in Intermediate. After enquiry, it was found that the house of the revisionist was located in agricultural field and from the neighbours it was enquired as to what kind of company he had. It was apprised that he was simply wanted in this case because he was found in company of other persons of criminal conduct and no report could be gathered about his conduct being bad or about his criminal history.
In the counter affidavit filed by the learned A.G.A., nothing has been stated about the criminal history of the accused-revisionist except what had been stated by the learned appellate court in its order.
In catena of cases, it has been decided conclusively that the gravity of offence shall not be seen while deciding the bail of a juvenile delinquent in conflict with law. For the sake of example excerpts of few judgments are being quoted hereinbelow:-
1. In Mohd. Feroz @ Bhola Vs. State, 2006 (1) Crimes 389, the Delhi High Court has held as follows in pargraph 6 of the judgment:-
“6.........................
The aforesaid Section makes it mandatory for a person to be released if such person is apparently a juvenile unless of course, there are reasonable ground for believing that the release of such person 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. No such fears have been raised on the part of the prosecution. The learned counsel for the State, however, submitted that the petitioner is accused of directly committing the murder of the deceased by use of a knife and he should be shown no mercy. This is not a question of mercy. The provision is mandatory and stipulates that such a person who is apparently a juvenile 'shall' be released on bail notwithstanding anything contained in the Code of Criminal Procedure. 1973 or in any other law for the time being in force subject only to the condition mentioned above in respect of which no fears have been raised by the prosecution.”
2. In Amit Kumar Vs. State of U.P., 2010 (71) ACC 209, in paragraph 6 of the jugment this court has held as below:-
"6. A perusal of Section 12 of the Act reveals that a juvenile is entitled to bail notwithstanding gravity of the crime. His bail can be refused only when there are reasonable grounds for believing that his release 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."
3. In Master Niku Chaubey Vs. State, 2006 (43) AIC 789 (Delhi High Court), the Delhi High Court has held in paragraph 4 of the judgment as follows:-
"4............In any event, as rightly observed in the impugned order, the nature of the offence is not one of the conditions on which bail can be granted or refused to the juvenile. Bail in respect of a juvenile has to be considered purely under the parameters of Section 12 of the said Act which requires bail to be granted mandatorily unless the court feels that the release of the juvenile is likely to bring him in the association of any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice."
Lastly in Vijendra Kumar Mali Vs. State of U.P., 2003 (1) JIC 1036 (All), this Court has held as below in paragraph 5 of the judgment as follows:-
"5. The Sessions Judge, Sonebhadra has probably lost sight of the provisions of the Act and ignored the directions issued by this Court passed in the aforesaid revisions. He has mentioned the ground of refusal of bail to be the gravity of the offence, which is none of the grounds mentioned in Section 12 of the Act. It appears from this order that the Sessions Judge, Sonebhadra was bent upon to refuse the bail without caring for the law on this point. Section 12 of the Act provides 'that the juvenile offender shall be released on bail but the exception would be that he shall not be so released if there appears reasonable grounds for believing that the release 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.'"
In view of aforesaid discussion, this Court is of the view that it being settled position of law that the gravity of offence could not be seen while considering the bail of a juvenile, this Court finds it a fit case for granting bail to the accused-revisionist.
In view of above, this court is of the view that this revision deserves to be allowed and is accordingly, allowed. The order of the Juvenile Justice Board dated 11.11.2016 as well as order dated 26.11.2016 of the appellate court are set aside.
Let the Juvenile revisionist- Sunny Deol Alias Dori Lalshall be released on bail on his father Sri Pheru Singh furnishing a personal bond of Rs.1,00,000/- and two sureties of the like amount to the satisfaction of the Juvenile Justice Board with condition that he shall not allow the revisionist to come in association with any hardened criminal 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:- 26.2.2018 A.P. Pandey