Mr. 'X' Thru. His Brother Sandeep Kumar v. State of U.P. Thru. Prin. Secy. Home Deptt., Lko. and 3 Others

Court No. - 12 Case :- CRIMINAL REVISION No. - 346 of 2023 Revisionist :- Mr. 'X' Thru. His Brother Sandeep Kumar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt., Lko. And 3 Others Counsel for Revisionist :- Anil Kumar Tiwari Counsel for Opposite Party :- G.A.,Om Prakash Tripathi Tiwari Hon'ble Rajeev Singh,J.

¶1Counter affidavit filed by learned A.G.A. is taken on record.

¶2Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.

¶3This Criminal Revision has been filed for quashing the judgement & order dated 18.03.2023 passed by learned Additional District & Sessions Judge/Special Judge, P.O.C.S.O. Act, Ambedkar Nagar in Criminal Appeal No.06 of 2023 as well as judgement & order dated 17.02.2023 passed by learned Juvenile Justice Board arising out of Case Crime No.212 of 2022 U/s 363, 376 D.A., 342, 305, 504, 506 I.P.C., Section 5/6 of P.O.C.S.O. Act, Police Station-Malipur, District-Ambedkar Nagar.

¶4Learned counsel for the revisionist has contended that only general allegations have been leveled against revisionist. He has further contended that revisionist is in custody since

08.10.2022. He has further contended that during pendency of this revision co-accused, namely, Mohammad Arshad has already been released on bail in Criminal Misc. Bail Application No.2859 of 2023 vide order dated 17.08.2023. It has further been submitted that learned trial court failed to consider the provisions of Section 12 of Juvenile Justice Act.

¶5Learned A.G.A. has opposed the above contentions but conceded this fact that co-accused has already been enlarged on bail.

¶6The submission of learned counsel for the revisionist is that it is not in dispute that the revisionist is a juvenile and is entitled to the benefits of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. It has been submitted that under Section 12 of the Juvenile Justice Act, prayer for bail of a juvenile can be rejected 'if there appears 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'.

¶7This Court has to see whether the opinion of the appellate Court as well as Juvenile Justice Board recorded in the impugned orders are in consonance with the provision of Section 12 of the Juvenile Justice (Care and Protection of Children) Act 2015. Section 12 of the Act lays down three contingencies in which bail could be refused to juvenile, which are as follows:

(1) if the release is likely to bring him into association with any known criminal, or

(2) expose him to moral, physical or psychological danger, or

(3) that his release would defeat the ends of justice.

¶8Admittedly, gravity of the offence has not been mentioned as a ground for rejection of bail under Section 12 of the Act.

¶9It has further been submitted that gravity of the offence could not be relevant for refusing grant of bail to the juvenile, as has been held by this Court in Shiv Kumar alias Sadhu Vs. State of U.P. [2010 (68) ACC 616] and it has been a consistent view of various courts. It has also been submitted that there exists no material to justify rejection of bail on the grounds envisaged by Section 12 of the Act. There is nothing on record to show that the revisionist is exposed to any moral, physical or psychological danger.

¶10In para 33 of the judgment rendered in the case of Om Prakash Vs. State of Rajasthan and another [(2012) 5 SCC 201], Hon'ble Apex Court has held that: "statutory protection of the Juvenile Justice Act is meant for minors who are innocent law-breakers and not accused of matured mind who use the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him, otherwise would amount to subverting the course of justice". ……………...the Court observed that this would clearly be treated as an effort to weaken the justice dispensation system."

¶11Learned trial court as well as appellate court quoted the case law Virendra Vs. State of U.P. in Criminal Revision No. 345 of 2011 but did not discuss as to how the case law will apply in this case. In case of Virendra, the accused/juvenile is in conflict with law committed rape with murder and that was found heinous in nature. The fact of this case altogether are different with the case of Virendra (supra).

¶12Learned trial court as well as appellate court did not discuss the case law of Virendra (supra) in the light of the factual matrix of this case. In this case, revisionist has no criminal antecedents.

¶13In view of the above, the present revision is allowed and the judgement & order dated 18.03.2023 passed by learned Additional District & Sessions Judge/Special Judge, P.O.C.S.O. Act, Ambedkar Nagar in Criminal Appeal No.06 of 2023 and judgement & order dated 17.02.2023 passed by learned Juvenile Justice Board arising out of Case Crime No.212 of 2022 U/s 363, 376 D.A., 342, 305, 504, 506 I.P.C., Section 5/6 of P.O.C.S.O. Act, Police Station-Malipur, District-Ambedkar Nagar are hereby set aside.

¶14Let revisionist, namely, Mr. 'X' Thru. His Brother Sandeep Kumar be released on bail in Case Crime No.212 of 2022 U/s 363, 376 D.A., 342, 305, 504, 506 I.P.C., Section 5/6 of P.O.C.S.O. Act, Police Station-Malipur, District-Ambedkar Nagar on furnishing of a personal bond alongwith an undertaking on behalf of revisionist by his legal guardian/brother to the effect that he will not permit the revisionist to come in association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice and provide no occasion to the revisionist whereby his release on bail would defeat the ends of justice, by his legal guardian/brother and two sureties each in the like amount to the satisfaction of the Court concerned subject to following conditions:-

(1) Revisionist will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.

(2) Revisionist will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.

(3) Revisionist shall remain present, in person, before the Board on the dates fixed for (a) opening of the case; (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C. If in the opinion of the Board that absence of the revisionist is deliberate or without sufficient cause, then it shall be open for the Board to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

¶15Any violation of above conditions will be treated misuse of bail and Board will be at liberty to pass appropriate orders in the matter regarding cancellation of bail. Order Date :- 9.11.2023 Arpan High Court of Judicature at Allahabad, Lucknow Bench