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2015 DIGILAW 1136 (ALL)

Sanjay @ Sanju (Minor) v. State of U. P.

2015-05-08

PRATYUSH KUMAR

body2015
JUDGMENT Pratyush Kumar, J. By way of the instant revision, juvenile Sanjay @ Sanju has challenged the judgement and order dated 17th November, 2014 passed by Sri Ali Zameen, Sessions Judge, Fatehpur in Criminal Appeal No.69 of 2014 (Sanjay @ Sanju Vs. State of U.P.). 2. Briefly stated the present controversy arose out of the proceedings of Case Crime No.368 of 2013 under section 302 I.P.C. Police Station Bindaki, District Fatehpur, when the Juvenile Justice Board, Fatehpur had rejected the request for bail made on behalf of the revisionist on the ground that social investigation report submitted by the probation officer revealed that the juvenile had love affair with Vandana, daughter of the deceased, which was opposed by the deceased for which she was murdered by the revisionist. According to the probation officer, considering the educational background, motive of the crime, the juvenile did not appear to be entitled to be released on bail because he was not amenable to the parental control. There were reasons to believe that, in case, he was enlarged on bail, he might be exposed to be moral, physical and psychological danger. In case, he was released on bail, development of his personality would be adversely affected. 3. This order was challenged in the aforementioned appeal. After detailed discussion, the learned Sessions Judge came to the opinion that juvenile used to misbehave with the daughter of the deceased, when she objected, the juvenile murdered her. The learned Sessions Judge also noticed this fact that alleged act of the juvenile had negative impact on the society. Thereafter, he referred two judgments of this Court wherein it was observed that while exercising jurisdiction under section 12 of The Juvenile Justice (Care and Protection of Children) Act, 2000, not only the welfare of the juvenile is to be seen but conduct of the juvenile in commission of the crime should be seen whether the juvenile suffers from depravity against which the society has a right to be protected. 4. Feeling aggrieved, the validity of the impugned judgement and order has been challenged before this Court on the ground that report of the probation officer regarding conduct and behaviour of the revisionist in college and neighbourhood has been completely ignored. The juvenile has been detained for more than one an a half years in observation home. 4. Feeling aggrieved, the validity of the impugned judgement and order has been challenged before this Court on the ground that report of the probation officer regarding conduct and behaviour of the revisionist in college and neighbourhood has been completely ignored. The juvenile has been detained for more than one an a half years in observation home. At the time of the alleged incident, he was aged about 17 years, five months, 15 days. He is a student. His confinement in observation home will ruin his life. The impugned order is against the provisions and spirit of the Juvenile Justice (Care and Protection of Children) Act, 2000. In support of the ground raised hereinabove, the learned counsel for the revisionist has taken me through the impugned judgement and order passed by the Sessions Judge. According to him social investigation report cannot be used against the revisionist from which juvenile is entitled for release. It is only for the State to prove that the case of the juvenile squarely falls within the prohibited limit prescribed by section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000. In support of his argument, learned counsel for the revisionist has referred the following cases: - 1. Ashu Vs. State of U.P., 2014(1) U.P.CrR, 613. Para 4 of the judgement has been referred to substantiate the argument advanced on behalf of the revisionists. Relevant para is quoted hereinbelow: - "4. The accused revisionist has been declared juvenile by the Juvenile Justice Board. The provisions of Section 12 of the said Act are mandatory in nature and the gravity of the offence is not a relevant consideration in the case of a juvenile. There is also no reliable material on record to show that release of the revisionist on bail would defeat the ends of justice and his release would expose him to moral danger. In these circumstances, the Board was not justified in rejecting the bail application of the of the revisionist. The appellate Court has also not considered the provision of Section 12 of the said Act in proper perspective. Thus, both the impugned orders are not sustainable and are liable to be set aside." 2. Umesh Vs. State of U.P. and another, 2011 (75) ACC 66. Observation made in para 8 has been relied on by the revisionist which reads as under: - "8. Thus, both the impugned orders are not sustainable and are liable to be set aside." 2. Umesh Vs. State of U.P. and another, 2011 (75) ACC 66. Observation made in para 8 has been relied on by the revisionist which reads as under: - "8. The aforesaid provision provides that a juvenile accused has to be released on bail unless there are 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. There is no evidence on record to bring the case of the revisionist within the expections provided in section 12 of the Act. There are nothing on record to show that the revisionist would come in association with any known criminal or his release would expose him to moral, physical or psychological danger. There is also nothing on record to show that the release of the revisionist on bail would defeat the ends of justice. The gravity of the offence is not a relevant consideration for grant of bail, as held by this Court in Shiv Kumar alias Sadhu v. State of U.P., Adult co-accused have already been granted bail by the High Court on the ground of cross-case. 3. Amit Kumar Vs. State of U.P., 2010(71) ACC 209. Learned counsel for the revisionists has referred this case to fortify his argument, even gravity of the crime would not dis-entitle the juvenile of his release on bail except only when prohibited ground has been successfully established against the request for release. Paras 6 to 9 of the judgement are relevant for the present purpose. They are quoted 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. 7. It was not disputed that the revisionist has no criminal background. 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. 7. It was not disputed that the revisionist has no criminal background. He is alleged to have killed his own sister on account of the annoyance that she had herself solemnized marriage with one Lattha alias Upendra Singh against the wishes of her family members. There is no evidence to show that in the event of the release of the revisionist on bail he will come into the association with any known criminal or he will be exposed to moral, physical or psychological danger. Even gravity of the crime is no ground to deny bail to juveniles nor it can be taken as a ground to hold that the release of the juvenile would defeat the ends of justice. The revisionist is not a professional criminal nor has any association with any known or unknown criminal. The offence was committed by him on account of his being highly annoyed from the marriage performed by his sister against the wishes of his and his family members. In this view of the matter, it would not be in the interest of justice to keep such a juvenile in custody. Therefore his release on bail would not in any way defeat the ends of justice. 8. In the case of Vijendra Kumar Mali v. State of U.P., this Court has held: 6. This Court in a number of judgments has categorically held that bail to the juvenile can only be refused if anyone of the grounds existed. So far as the ground of gravity is concerned, it is not covered under the above provisions of the Act. If the bail application of the juvenile was to be considered under the provisions of the Code of Criminal Procedure, there would have been absolutely no necessity for the enactment of the aforesaid Act. The language of section 12 of the Act itself lays down that notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974) or in any other law for the time being in force, the juvenile accused shall be released. The language of section 12 of the Act itself lays down that notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974) or in any other law for the time being in force, the juvenile accused shall be released. Not only this, the Parliament re-considered the entire matter and repealed the old Act of 1986 by introduced the new Act No.56 of 2000, raising the age from 16 to 18 years. This has been done keeping in view the welfare of the child so that even after committing an offence a child may not become a hardened criminal but he may reform himself. 9. And in Akash Rai v. State of U.P. this court again held as under: "...... As per provision of section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 except on the ground mentioned therein bail is mandatory to the Juvenile. It appears from the judgement and order passed by the Session Judge, Mau that the revisionist is Class XIIth Student and according to the report of the District Probation Officer, Ballia he has committed Crime due to company of bad elements. The District Probation Officer's report is based on no evidence and it appears that simply to make a ground that the revisionist may not be released on bail the report has been submitted. There is nothing on record that after release the revisionist would come in association with any known Criminal or exposed him to moral, Physical or Psychological danger or that of his release would defeat ends of justice. Father of revisionist has given an undertaking about the revisionist's welfare and education." 4. Kamlesh Kumar alias Ankush Vs. State of U.P. and another, 2012 (2) U.P.CrR, 448. In this case, this Court has rejected the gravity of the offence as a ground for rejection of the request of the juvenile on bail. Para 7 of the judgment contained the reasons which is quoted as below: - "7. These facts are not disputed by the learned A.G.A. but he submits that the offence committed by the revisionist is of grave in nature. Para 7 of the judgment contained the reasons which is quoted as below: - "7. These facts are not disputed by the learned A.G.A. but he submits that the offence committed by the revisionist is of grave in nature. The rejection of the bail application of the revisionist by the Courts below by the aforesaid judgment and order is based on the report of the District Probation Officer mentioning therein that there are sufficient grounds for believing that if the revisionist is released on bail he will come into association with any known criminal. Apart from the report of District Probation Officer there is no other material to support this fact. Considering the aforesaid facts and circumstances the impugned judgment and order dated 18.9.2010 passed by the Sessions Judge, Kanpur Nagar and the order dated 20.8.2010 passed by the Juvenile Justice Board are illegal and suffer from perversity and the same are hereby set aside. Keeping in view the welfare of the revisionist with a hope that he may recover himself he is entitled for bail." 5. Virendra Vs. State of U.P., order dated 30th April, 2014 in Criminal Revision No.345 of 2011. In this case, revision was preferred by the juvenile against rejection of his appeal containing the prayer for bail. In that case, a girl of six years was raped and murdered. Juvenile was an alleged offender. His request for bail was rejected by the Juvenile Justice Board and against that appeal was filed, which was dismissed by learned Sessions Judge. In this case in paras 24 to 29 this Court has discussed the right and welfare of the juvenile vis-a-vis interest of the society, the relevant paras are extracted hereunder: - "24. A citizen's claim to equality before the law is a claim of justice. Justice has been termed as the highest virtue. It has also been equated with fairness. Fairness connotes fairness to all i.e. equal treatment to all. Sense of injustice is a powerful human emotion. It is strongest when a person's own interests are harmed, but it also aroused in civilized people when they witness wrongs done to others. Ultimate object of every legal system is to secure justice which is at the centre of moral and social philosophy. The instinct for justice leads us to believe that right, and not might, is the true basis of society. Ultimate object of every legal system is to secure justice which is at the centre of moral and social philosophy. The instinct for justice leads us to believe that right, and not might, is the true basis of society. The principles of justice that define duties and rights should be neutral with respect to compacting conception of good life. Defeat of ends of justice is bound to result in injustice which produces conflict within the individual and sets him at variance with himself and with all who are just. Injustice is inseparable from virtue which consist of ethics and justice in universal sense. Injustice in the particular sense is the injustice that causes harm to others. Virtue based approach connects justice to reflection about good life. This approach ensures that justice means giving people what they morally deserve-allocating goods to reward and promote virtue. It is thus apparent that the concept of justice lies at the heart of moral philosophy where righteousness, fairness and truth are the basic values and it should include people from all walks of life. Therefore, it is safe to conclude that well being of the community takes precedence over the liberty and preventing injustice would always be a pursuit of justice. Leaving society to live with persons of perverted nature would be an affront to the dignity of human beings and tends to promote anarchy and unrest in society which is sure to defeat the ends of justice. 25. Rape/murder of a helpless and innocent child has been treated an aggravating factor, as held in the Machhi Singh's case (supra). While gravity of the offence cannot be considered under Section 12 of the Act but where rape is committed with helpless victim, a child followed by the murder, cruel mentality of the author is more than manifest. Murder was committed to save himself from the clutches of justice. Discretion of bail to such a person will obviously tantamount subverting the course of justice and by no stretch of imagination it can be said that it will be in ends of justice to grant bail to such a person. 26. Consequently, the offence like rape with child followed by murder, anti-national/sedition, Drug trafficking and other similar acts etc. Discretion of bail to such a person will obviously tantamount subverting the course of justice and by no stretch of imagination it can be said that it will be in ends of justice to grant bail to such a person. 26. Consequently, the offence like rape with child followed by murder, anti-national/sedition, Drug trafficking and other similar acts etc. would be the offences which reflect the criminal mind-set of the offender, as such, any discretion under Section 12 of the Act to such a person would amount to defeating the ends of justice. 27. Granting bail to such a juvenile will not only expose him to moral, physical and psychological danger but would also lead to defeat of the ends of justice. 28. After all victim, a child, also needs justice for whose need and care Act has been enacted. Such offences are crimes against society and society feeling desperate and outraged, too needs justice. Thus, justice has to be ensured to both author vis-a-vis victim and society. Section 12 of the Act while empowers court to grant bail to juvenile, it specifically puts a rider which is couched in negative. Court would be failing in its duty in not giving due weightage to the above caveat. 29. From the above, it is apparent that aim of the Act is to take care of both child in conflict with law as well as child who need care and protection, as such, Section 12 of the Act cannot be interpreted in a manner so as to give advantage to only juvenile in conflict with law ignoring the need or welfare of the victim child. On a general power to grant bail, specific rider has been placed which is very often forgotten. Such a rider has been placed in Act, 1986 and in some other laws. While considering the prayer for bail under Section 12 of the Act, the Judge has to ensure that the order proposed to be passed does not violate any of the conditions contemplated by Section 12 of the Act. It cannot be interpreted to work only for the benefit of juvenile ignoring the cries of victim child whenever, a child becomes victim of offences, let alone heinous offences like murder or rape, society craves and cries for justice. It cannot be interpreted to work only for the benefit of juvenile ignoring the cries of victim child whenever, a child becomes victim of offences, let alone heinous offences like murder or rape, society craves and cries for justice. By showing misplaced sympathy to juvenile, who has perpetrated offence like rape/murder, victim (child) and the society is denied justice which is not and cannot be the intention of law." On behalf of the opposite parties, the arguments advanced on behalf of the revisionist have been comprehensively replied. Learned counsel for the opposite parties has submitted that rejection of bail of the revisionist by Juvenile Justice Board and Sessions Judge is perfectly legal keeping in view the rider imposed by section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, on the release of the juvenile on certain conditions. According to him in the present case, the conditions required for application of rider, have been fully made out. The juvenile, who is no more a juvenile has been rightly deprived of the benefit of section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Learned counsel for the opposite parties has also placed reliance on the observation made in Virendra 's case (supra). On behalf of the opposite parties, the following case has been referred: - 1.Monu Vs. State of U.P. 2011 (74) ACC 353. In this case this Court has opined as below: - " Section 12 - Bail to Juvenile- Gang Rape of 14 year old girl- Accused being master mind- Plea of parity The High Court considered the object of the Act and pointed out that merely by declaration of being a juvenile does not entitle a juvenile in conflict with law to be released on bail as a matter of right. The Act has a solemn purpose to achieve betterment of juvenile offenders but it is not a shelter home for those juvenile offenders who have got criminal proclivities and a criminal psychology. It has a reformative approach but does not completely shun retributive theory. Legislature has preserved larger interest of society even in cases of bail to a juvenile. The Act has a solemn purpose to achieve betterment of juvenile offenders but it is not a shelter home for those juvenile offenders who have got criminal proclivities and a criminal psychology. It has a reformative approach but does not completely shun retributive theory. Legislature has preserved larger interest of society even in cases of bail to a juvenile. The Act seeks to achieve moral physical and psychological betterment of juvenile offender and therefore if, it is found that the ends of justice will be defeated or that goal desired by the legislature can be achieved by detaining a juvenile offender in a juvenile home, bail can be denied to him. This is perceptible from phraseology of section 12 itself. Legislature in its wisdom has therefore carved out exceptions to the rule of bail to a juvenile. Rejecting the Bail application the court held that conspiracy to kidnap a minor girl at gun point in the midst of a marriage procession and then to carry her to an abandoned house and rape her was hatched up by the revisionist who in execution of it acted with criminal intent of arranging for an illegal firearm along with Umed and thereafter executed it with precision. Above sequence of events unerringly indicate criminal proclivities of the revisionist and his depraved sexuality. He, even as a juvenile has a libido psyche and can go to any extent to sooth his lust. His widow mother has no commanding control over him. Record does not indicate any other male relative to keep control of the revisionist for the betterment of his moral and psychological qualities. In such a view, if the revisionist is released on bail, not only it will be miscarriage of justice, but will push the revisionist into further moral and psychological degradation. The ambit and scope of the Act is reformative and not further degradation and therefore a juvenile offender has to be detained at such a place where he can be separated from other criminal and crimes. Legislature in its wisdom has raised the age of juvenile offender from 16 to 18 years but the revisionist being above 16 years of age, was conscious of his illegal criminal activity. It cannot be said that he was unknown of the consequences of his act. Legislature in its wisdom has raised the age of juvenile offender from 16 to 18 years but the revisionist being above 16 years of age, was conscious of his illegal criminal activity. It cannot be said that he was unknown of the consequences of his act. Therefore, his case falls in more than one clauses of exception as is provided under Section 12 of the Act. Rule of parity in the case of the revisionist cannot be applied because case of the revisionist stands at a different pedestal from other accused kallo. His role in the crime discussed herein above projects criminality possessed by him." (2) Virendra's case (supra) relevant paras have been quoted herein before. When the present case is examined in the light of the legal proposition discussed hereinabove, it is evident that in social investigation report, probation officer had not recommended the release of the juvenile. He did not rule out the possibility that juvenile would not be exposed to the moral, physical and physiological danger. According to said report he was not amenable to parental control. In case of release, development of his personality would be adversely affected. The learned Sessions Judge in the impugned order not only agreed with these findings of the Juvenile Justice Board but also noticed one additional factor that release of juvenile would amount to injustice to the society keeping in view of the nature of the offence. I think both the courts below have correctly appreciated the facts of the case. They have applied the correct law. There is no infirmity in the impugned judgement and order. They need no interference. Revision is devoid of merits and deserves to be rejected. Revision is rejected.