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2006 DIGILAW 2451 (ALL)

EJAJ ALIAS BIKANU v. STATE OF U P

2006-09-26

SHIV SHANKER

body2006
SHIV SHANKER, J. This criminal revision has been preferred against the judgment and order dated 8-3-2006 passed Criminal Appeal No. 4 of 2006, (Ejaj @ Bikanoo v. State) by Special Judge (U. P. Gangsters Act), Varanasi whereby the criminal appeal was dismissed and the order dated 17-12-2005 passed by Pradhan Magistrate, Juvenile Justice Board, Ram Nagar, Varanasi rejecting the bail application of revisionist arising out of Case Crime No. 122 of 2004, under Section 364 IPC, and 7 Criminal Law Amendment Act, P. S. Chakia, District Chandauli was affirmed. 2. The revisionist-accused was challaned in the above case crime. He was declared juvenile by Juvenile Justice Board but his bail application was refused by Board as well as appellate Court. Hence, this revision is filed. 3. Heard learned Counsel appearing for the revisionist and learned A. G. A. and perused the record. 4. It is contended on behalf of the revisionist that there was no previous history against the revisionist except three false cases shown in the F. I. R. /gang Chart. Both the Courts below have given perverse finding on the basis of conjectures and surmises that if the revisionist is released on bail, he will indulge in anti social activities, which is totally illegal and arbitrary. It is further contended that the father of revisionist is ready to give and undertaking that the revisionist will be involved in any crime except if the police will not falsely implicate the revisionist. 5. Learned A. G. A. has submitted that the impugned judgment and orders passed by the Courts below are according to law. 6. The present revisionist is in judicial custody in case Crime No. 122 of 2004, under Section 364 IPC, and 7 Criminal Law Amendment Act, Police Station Chakia, District Chandauli. After registering the case against the revisionist, no subsequent evidence was received by the Courts below except the facts mentioned in the First Information Report. It has been provided in Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2000 that bail application of juvenile shall be allowed by the Board except on the following grounds: (1) If there appear reasonable grounds available believing that the release is likely to bring his into associations with any known criminal. (2) Or expose may to moral, physical, psychological danger. (3) Or that his release would defeat the ends of justice. 7. (2) Or expose may to moral, physical, psychological danger. (3) Or that his release would defeat the ends of justice. 7. In the present case, the Juvenile Justice Board as well as the appellate Court have not obtained any material otherwise the facts mentioned in the F. I. R. However, the bail application was rejected by both the Courts below merely on the basis of guess work. It has been observed in Sahabuddin @ Shabboo v. State of U. P. , 2002 (2) JIC 533 (All) as under: "juvenile Justice Act, 1986, Section 18-Bail refused on inadequate ground-though applicant was declared juvenile by Juvenile Court-Held: Bail to any juvenile can only be refused if release is likely to bring him into association with criminals or expose him to mental, physical or psychological danger or his release will defeat ends of justice. Any of these three ingredients not present. Applicant released on bail subject to condition that father of applicant should furnish bond for good conduct of the applicant. " 8. In the case of Shambhu v. State of U. P. , 2001 (1) JIC 325 (All), it has also been held as under: "juvenile Justice Act, 1986, Sections 18 and 38 - Penal Code, 1860, Sections 302 and 307 - Criminal Procedure Code, 1973, Section 397 - Juvenile - Bail rejected - Appeal finding recorded that knife alleged to have been used in commission of crime was recovered at the pointing of accused and likely to affect the Court justice by tempering the prosecution evidence in collusion with some criminals - Non- examination of matter on the evidence on record - Finding based merely on surmises and conjectures - Unsustainable - Bail granted. " 9. It has also been observed in Sanjay Chaurasia v. State of U. P. and Anr. , 2006 (2) JIC 732 (All) : 2006 (55) ACC 480, that: "10. In case of the refusal of the bail, some reasonable grounds for believing abovementioned exceptions must be brought before the Court concerned by the prosecution but in the present case, no such ground for believing any of the abovementioned exceptions has been brought by the prosecution before the Juvenile Justice Board and Appellate Court. In case of the refusal of the bail, some reasonable grounds for believing abovementioned exceptions must be brought before the Court concerned by the prosecution but in the present case, no such ground for believing any of the abovementioned exceptions has been brought by the prosecution before the Juvenile Justice Board and Appellate Court. The Appellate Court dismissed the appeal only on the presumption that due to commission of this offence, the father and other relatives of other kidnapped boy had developed enmity with the revisionist, that is why in case of his release, the physical and mental life of the revisionist will be in danger and his release will defeat the ends of justice but substantial to this presumption no material has been brought before the Appellate Court and the same has not been discussed and only on the basis of the presumption, Juvenile Justice Board has refused the Bail of the revisionist which is in the present case is unjustified and against the spirit of the Act. " 10. The same view has been reiterated in the decisions of Sanjay Kumar v. State of U. P. , 2003 (1) JIC 825 (All) : 2003 Cri, L. J. 2284; Vijendra Kumar Mali etc. v. State of U. P. , 2003 (1) JIC 1036 (All) : 2003 Cri. L. J. 4619; Pratap Singh v. State of Jharkhand and Anr. , 2005 (3) JIC 129 (SC) : 2005 Supreme Court Cases (Cri) 742; and Ankit Upadhyaya v. State of U. P. and Anr. 2006 (55) 759. 11. Therefore, there was no sufficient reasonable ground to refuse the bail application by board as well as appellate Court. Above pronouncements are fully applicable in this revision as same has been passed by both the Courts below merely on the basis of presumption and guess work without any substance. Therefore, both the Courts below have committed illegality and incorrectness in passing the impugned judgment and orders. 12. Thus, this revision is hereby allowed and impugned orders passed by Courts below are set aside. 13. Therefore, both the Courts below have committed illegality and incorrectness in passing the impugned judgment and orders. 12. Thus, this revision is hereby allowed and impugned orders passed by Courts below are set aside. 13. Let the revisionist Eajaj @ Bikanoo be released on bail on his furnishing a personal bond of his natural guardian and two sureties each of the like amount to the satisfaction of Court concerned on the conditions that: (1) He shall not temper with the prosecution evidence, and (2) He shall appear before the trial Court on each and every date fixed by the Board concerned. Revision allowed. .