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2016 DIGILAW 3780 (ALL)

RISHABH AWASTHI v. STATE OF U. P.

2016-11-23

RAMESH SINHA, REKHA DIXIT

body2016
JUDGMENT Hon’ble Mrs. Rekha Dixit, J.—This writ petition has been filed with a prayer to quash the impugned F.I.R. dated 31.8.2016, registered as Case Crime No. 590 of 2016, under Section 3(1) of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, Police Station Akbarpur, District Kanpur Dehat. 2. The brief facts of the case are that the petitioner is named in the F.I.R. lodged by the respondent No. 3 on 31.8.2016 which has been registered as Case Crime No. 590 of 2016, under Section 3(1) of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, (hereinafter referred to as the ‘Gangster Act’) Police Station Akbarpur, District Kanpur Dehat. As per the allegations of FIR, there is a gang of five persons namely, Rishabh Singh @ Golu Bhadauria, Rishabh Awasthi, Anuj Dubey, Abhishek Singh and Bhagwati @ Banta who were involved in anti-social activities under Section 3(1) of the Gangster Act. The criminal antecedent of the persons have also been categorically mentioned, which reads as under : 1- Rishabh Singh @ Golu Bhadauria-Case Crime No. 270 of 2015 under Section 394, 411 IPC, Police Station-Akhbarpur, District-Kanpur Dehat and Case Crime No. 79 of 2016, under Sections 394, 411 IPC, PS-Akhbarpur, District-Kanpur Dehat; 2- Rishabh Awasthi Case Crime No. 270 of 2015, under Section 394, 411 I.P.C., Police Station-Akhbarpur, District-Kanpur Dehat; 3-Anuj Dubey-Case Crime No. 270 of 2015 under Section 394, 411 IPC, Police Station-Akhbarpur, District-Kanpur Dehat; 4-Abhishek Singh-Case Crime No. 270 of 2015 under Section 394, 411 IPC, Police Station-Akhbarpur, District-Kanpur Dehat; 5-Bhagwati @ Banta-Case Crime No. 79 of 2016, under Sections 394, 411 IPC, PS-Akhbarpur, District-Kanpur Dehat; A gang chart of the same has also been annexed herein. 3. Heard Sri Manish Tandon and Sri S.D. Singh Jadaun,learned counsel for the petitioner and Sri Irshad Husain, learned AGA for the State. 4. The learned counsel for the petitioner argued that that petitioner has been falsely implicated in Case Crime No. 270 of 2015, under Section 394 IPC. It has been submitted that FIR was registered as Case Crime No. 270 of 2015 under Section 394, 411 IPC, Police Station-Akhbarpur, District-Kanpur Dehat against four unknown persons by one Neeraj Kumar. The investigation of the case was conducted by the Investigating Officer and final report was submitted. It has been submitted that FIR was registered as Case Crime No. 270 of 2015 under Section 394, 411 IPC, Police Station-Akhbarpur, District-Kanpur Dehat against four unknown persons by one Neeraj Kumar. The investigation of the case was conducted by the Investigating Officer and final report was submitted. Subsequently, further investigation was conducted on an application moved under Section 173 (8) Cr.P.C. and the name of the petitioner surfaced during the course of this investigation. The petitioner took the plea of being juvenile, he was released on bail. The respondent No. 3 has lodged the present FIR showing the petitioner as a member of a Gang ignoring the fact that he was not named in the aforesaid FIR. He further submitted that at the time of incident he was juvenile and in the said case final report was submitted and further investigation was ordered. Thereafter, in confessional statement of co-accused the name of petitioner came into light. Moreover, in the said case he was declared juvenile and granted bail by the Court below. Thereafter, the present FIR has been lodged against petitioner under Gangster Act on the basis of one case. It has been further argued that petitioner is a student of B.Sc. 5. Learned counsel for the petitioner further referred to Sections 1(4), 17, 19 and 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which extends ample protection and benefit to a juvenile, submitting that the petitioner has been implicated in Gangster Act after attaining majority, on the premise of single case which holds him as juvenile. 6. Per contra, learned AGA opposed the prayer for quashing the FIR and submitted that according to the Gang Chart the petitioner has a criminal history of Case Crime No. 270 of 2015 under Section 394, 411 IPC, Police Station-Akhbarpur, District-Kanpur Dehat, incident of that case took place on 2.4.2015 and according to the Adhaar Card of the petitioner, his date of birth is 5.9.1997 and as such on the date of incident, the petitioner was more than 17 years of age. He further submitted that the name of the petitioner has surfaced in the confessional statement of the co-accused. 7. We have considered the submissions advanced by learned counsel for the parties and perused the record. He further submitted that the name of the petitioner has surfaced in the confessional statement of the co-accused. 7. We have considered the submissions advanced by learned counsel for the parties and perused the record. It is not disputed that the petitioner has been declared juvenile in Case Crime No. 270 of 2015, under Sections 394 and 411 I.P.C., Police Station-Akbarpur, District-Kanpur Dehat and the said case is the sole premise of his being booked in Gangster Act. In this context the relevant provisions of Juvenile Justice Act may be taken into consideration: Section 1(4): Short title, extent, commencement and application—Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under any such law. Section 17: Proceedings under Chapter VIII of the Code of Criminal Procedure not competent against juvenile—Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974) no proceeding shall be instituted and no order shall be passed against the juvenile under Chapter VIII of the said Code. Section 19: Removal of disqualification attaching to conviction—(1) Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. (2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be. Section 21: Prohibition of publication of name, etc., of juvenile in conflict with law or child in need of care and protection involved in any proceeding under the Act—(1) No report in any newspapers, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published. 8. The Juvenile Act is intended to protect the juvenile from the rigours of trial by a criminal Court. 8. The Juvenile Act is intended to protect the juvenile from the rigours of trial by a criminal Court. It prohibits sentencing of a juvenile and committing him to prison. The act further extends protection to a juvenile from proceedings under Chapter VIII of Cr. P.C. and also prohibits newspapers, magazines etc. to disclose the particulars which may lead to identification of the juvenile. As its preamble suggests it seeks to adopt a child-friendly approach in the adjudication and disposition of the matters, in the best interest of children and for their ultimate rehabilitation. 9. The petitioner, not named in Case Crime No. 270/2015 under Sections 394, 411 I.P.C. initially, but surfaced in further investigation under Section 173(8), after submission of final report in which he was declared juvenile and granted bail. After attaining majority, he has been hauled up in the impugned F.I.R. under Section 3(1) of Gangster Act, on the premise of aforesaid single case. The petitioner being juvenile at the time of Case Crime No. 270/2015, protection and benefit under Juvenile Justice Act, 2000 is certainly to be extended to him and F.I.R. under Section 3(1) Gangster Act on the premise of such a single case cannot be approved off. 10. Where the legislation provides so much protection and benefit to a juvenile, we do not conform with the view of impugned F.I.R. and its registration against the petitioner under Section 3(1) of Gangster Act. 11. The impugned F.I.R. and all subsequent proceedings, vis-a-vis the petitioner, in pursuance thereof are hereby quashed. 12. The writ petition, accordingly, succeeds and is allowed. 13. No order as to the cost.