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2016 DIGILAW 979 (ALL)

Amit v. State of U. P.

2016-03-16

AMAR SINGH CHAUHAN

body2016
JUDGMENT Amar Singh Chauhan, J. – This revision has been preferred for release of the revisionist, who is juvenile against the judgement and order dated 19.11.2014 passed by the Juvenile Justice Board, Ghaziabad as well as order dated 25.3.2015 passed by the Special Judge (E.C. Act) in Criminal Appeal No. 19 of 2015, under sections 364, 302, 201 IPC, PS Muradnagar, district Moradabad whereby the prayer for bail has been rejected by both the courts. 2. Admittedly, the revisionist is a juvenile aged twelve and half years and special provisions are there for the bail of a juvenile. 3. The brief facts of the case are that on 26.8.2014 a written report was lodged by the informant Faiyyaz at police station Murad Nagar, district Ghaziabad to the effect that on 25.8.2014 his son, Adil, aged about 18 years, had gone to play from village with Amit, Abdulla, Amir Khan and Jikriya. During play, there was some altercations between Adil on one side and Amit, Abdulla, Khan and Jikriya on the other. In the evening all the four accused persons took away Adil, the deceased towards crematorium. When the accused were taking away the deceased, they were seen and stopped by Irshad and Alladin, but they did not stop and they were saying that you will meet Adil (deceased) tomorrow. The informant kept on searching his son throughout the night. When the informant reached crematorium next day at 9.15 AM, the dead body of the deceased was lying which was tied around the neck. On the basis of the aforesaid report a case was registered against the revisionist and other co-accused at case crime No. 595 of 2004, under sections 364, 302, 201 IPC, police station Murad Nagar, district Ghaziabad. 4. Heard Shri Rajesh Pathak, learned counsel for the revisionist and learned Additional Government Advocate for the State-respondent. No one has appeared on behalf of respondent No. 2 in spite of service of notice on him as per office report dated 20.7.2015. Pursuant to the order of this Court dated 22.9.2015, a supplementary affidavit has been filed on behalf of the revisionist annexing therewith the report of the Probation Officer, Ghaziabad, which only indicates that effective control is required over the revisionist. 5. Pursuant to the order of this Court dated 22.9.2015, a supplementary affidavit has been filed on behalf of the revisionist annexing therewith the report of the Probation Officer, Ghaziabad, which only indicates that effective control is required over the revisionist. 5. Learned counsel for the revisionist contends that there is no iota of evidence to suggest that if the revisionist will be released on bail, his release is likely to bring him in association with any known criminal or expose him to moral, physical or phychological danger or that his release would defeat the ends of justice. Learned counsel for the revisionist further submits that Juvenile Justice Board and the Appellant Court have erred in holding that the release of the revisionist would not only defeat the ends of justice, but also bring the revisionist in the association with known criminal or expose him to moral, physical or psychological danger. Learned counsel for the revisionist contends that the similarly placed co-accused Jikariya and Abdul Wahid alias Abdul have been granted bail vide orders dated 9.9.2015 and 17.9.2015 respectively passed in Criminal Revision No. 1232 of 2015 and 1241 of 2015. 6. Per contra, learned Additional Government Advocate has contended that the findings recorded by the learned lower appellant court that the revisionist was aware of the nature of the crime, which shows his criminal mind set, he absconded along with 91 prisoners from Juvenile home, and that her mother is the only guardian who is unable to control the revisionist effectively. Learned AGA further contends that the case of the co-accused, who have been granted bail is distinguishable from the present revisionst. 7. If we go by the statutory mandate, bail in case of a juvenile in conflict with law, is a general rule whereas refusal is an exception. Such refusal has also to be in consonance with the grounds mentioned in Section 12 , which is reproduced below: "12. 7. If we go by the statutory mandate, bail in case of a juvenile in conflict with law, is a general rule whereas refusal is an exception. Such refusal has also to be in consonance with the grounds mentioned in Section 12 , which is reproduced below: "12. Bail of juvenile.- (1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety (or placed under supervision of a Probation Officer or under the care of any fit institution or fit person) but he shall not be so released if there appear 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. (2) When such person having been arrested is not released on bail under subsection (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board. (3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order." 8. Delhi High Court in Mohd. Feroz alias Bhola v. State, 2005(4) R.C.R.(Criminal) 205 : (LAWS) (DLH) 2005-3-106, after referring to section 12 of Juvenile Justice (Care and Protection of Children )Act, 2000, has held as under: "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. 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." 9. In Master Niku Chaubey v. State, 2006(3) R.C.R.(Criminal) 372 : 2006 (2) JCC 720; Delhi High Court held that the nature of the offence is not a consideration for grant of bail, to the juvenile. The only considerations are those spelt out by Section 12 , which requires bail to be granted unless the court feels that the release of the juvenile is likely to bring him into association of any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. It has been also held that seriousness of the allegations or gravity of the charges are not relevant in the case of a juvenile accused's request for bail. 10. In the case of Vijendra Kumar Mali v. State of U.P., 2003(4) R.C.R (Criminal) 812 : 2003 (1) JIC 103 this Court has held as under: "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." 11. This Court in the case of Amit Kumar v. State of UP, 2010 (71) ACC 209 (Alld) has expressed the similar view and has granted bail to the juvenile offender in heinous offence and held that seriousness of offence is no ground to reject the bail to a juvenile. 12. In this case, there is nothing either on record or in the report of the Probation Officer that after the release the revisionist would come in association with any known criminal or his release would expose him to moral, physical or phychological danger. 13. Taking in view the entire spectrum of facts and circumstances, materials available on record and legal position, the impugned orders passed by both the courts are neither sustainable on facts nor in law and accordingly, the same are liable to be set aside. 14. Consequently the orders dated 19.11.2014 passed by the Juvenile Justice Board, Ghaziabad and 25.3.2015 passed by the Special Judge (EC Act)/Additional Sessions Judge, Ghaziabad are hereby quashed. 15. Resultantly, the revision is allowed. 16. Let the revisionist-Amit, involved in Case Crime No. 595 of 2014 (State v. Amit), under sections 364, 302, 201 IPC, PS Muradnagar, district Ghaziabad be released on bail on furnishing a personal bond by the legal guardian of Amit and two heavy sureties of each amount to the satisfaction of the Juvenile Justice Board, Ghaziabad to the effect that he will not come into contact with other offenders.