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2019 DIGILAW 444 (UTT)

MUKUL v. STATE OF UTTARAKHAND

2019-08-13

SHARAD KUMAR SHARMA

body2019
JUDGMENT Hon'ble Sharad Kumar Sharma, J. List revised. None appears to press the Criminal Revision. Since this is a Criminal Revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2015, this Court has got no option except to proceed to decide the Revision itself on its own merit after hearing the Government Act. 2. In the Revision, in question, the revisionist has questioned the judgment dated 3rd January, 2015, as rendered by the Sessions Judge, Haridwar, in Criminal Appeal No. 147 of 2014, Mukul Vs. State of Uttarakhand, whereby the Appeal preferred by the revisionist against the denial of benefit under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which was preferred against the decision of the Juvenile Justice Board which had not determining him as to be a juvenile on the date of commission of offence, the claim was dismissed by the Board and, consequently, had affirmed the order of the Juvenile Justice Board as passed on 20th October, 2014, rejecting the claim of juvenility and consequent denial of benefit of Section 12 of the Act, 2005. 3. Brief fact, which emanates for consideration before this Court is that there was an F.I.R. lodged, which was registered being F.I.R. No. 71/14 for the offences under Sections 147, 148, 149, 302, 120-B, 504, 506 and 34 of the I.P.C. at Police Station Jhabreda, District Haridwar. As per the set of allegations, which was levelled in the F.I.R. and as registered against the revisionist and other co-accused persons, the fact, which shows that the dispute arose amongst themselves when the accused persons had visited the kiosk (thela) of chowmin, which was being conducted by the complainant and the victim and they tried to exert pressure on the complainant and as a consequence thereto when there was a retaliation submitted by the son of the complainant in extending privileges to the group of persons, of which, the revisionist/ accused person, of which the revisionist was also one of the members, they had assaulted the brother of the complainant and, consequently, due to the aforesaid assault, it has resulted into his death of Sahjad S/o Jamshed. 4. 4. The assault, which was made on the brother of the complainant was that as per the averments in the F.I.R., which was registered as FIR No. 71/2014 dated 29.08.2014, which was made against as many as seven assailants, which included the revisionist also to be involved in commission of the offence. It was the case that when the person named in the FIR assaulted brother of the complainant, Sahjad, due to the commotion, other persons of the area, namely Shakeel, Naushad, Mursaleen and many other persons appeared at the place of occurrence and had seen the incident. When the accused person pulled Sahjad into the House of one Devi Chandra and under a well hatched conspiracy, they had assaulted to Sahjad by sharp edged weapon. Later, he succumbed to the injuries, though the complainant with the help of other persons had taken injured Sahjad to the Government Hospital Roorkee, where he was declared to have died. As an afterthought, one Shakuntala W/o Devi Chandra contends that she attempt to register the F.I.R. regarding the incident of 29.08.2014, but the same was not registered against family members August, 2014, resulting to death of Sahjad, hence, allegedly contends to have been trapped in the offence as detailed in FIR No. 71 of 2014. and friends of deceased Sahjad. When the same not registered, her case is that when the F.I.R. was not registered, the complainant of FIR 136/2014 had moved an application under Section 156 (3) of the Cr.P.C., which was allowed and, consequently, the F.I.R. was registered as Case Crime No. 136 of 2014, which was a cross F.I.R. registered on 05.12.2014, in pursuance to the order passed under Section 156 (3) Cr.P.C. On the registration of the F.I.R. No. 71 of 2014, the accused revisionist had preferred a bail application before the Juvenile Justice Board alleging himself to be juvenile and the Juvenile Justice Board, after considering the propriety of the application to the effect that the revisionist has not committed any offence, he is innocent and he has been unnecessarily trapped into the issue and his name which has appeared in the said case has been because of wrongful implication of the offence on him, the revisionist contended that he has no role in the incident, which has chanced on account of the incident, which has occurred on 29th 5. But on considering the impact of the F.I.R. and, particularly, the manner in which, the assault was committed by the group of persons, of which, the revisionist was also an active member, it is reflected that on account of the assault made by a sharp edged weapon, it is resulted into the death of the brother of the complainant. Consequently, considering the nature of incident and also the effect that it happens to be a social offence as a crime against public, which is having both principally the psychological effect on the accused person, the Juvenile Justice Board considering the impact of Section 12 of the Act has held that in case, if the revisionist is released on bail and considering the nature of incident, which has been committed by him in a mob along with six other assailants, it will lead to the situation that when on release on bail, the juvenile/ revisionist may come in contact with the other accused persons, some of them, who were major and were also having a criminal background together with him in commission of offence on 29th August, 2014, thus, the Juvenile Justice Board held that this itself would deceive the very intention and purpose of granting the bail to the juvenile by virtue of implication flowing from Section 12 of the Juvenile Justice Act. Because there was possibility in getting back in bad company having criminal bend of mind. Thus the Board considering the psychology and criminal bend of mind of the revisionist rejected the Bail on 20.10.2014. 6. The said order of rejection of bail dated 20th October, 2014, was challenged by the revisionist in an Appeal, being Appeal No. 147 of 2014, Mukul Vs. State of Uttarakhand, along with other Connected Appeal No. 146 of 2014, Rajat Vs. State of Uttarakhand. 6. The said order of rejection of bail dated 20th October, 2014, was challenged by the revisionist in an Appeal, being Appeal No. 147 of 2014, Mukul Vs. State of Uttarakhand, along with other Connected Appeal No. 146 of 2014, Rajat Vs. State of Uttarakhand. The Appellate Court, after considering the propriety of the case and the fact that as soon as Shahjad after closing the shop was returning to his village Bhagtowala, as soon as he made an attempt to enter in the village of the accused person, have joined together under the hatched conspiracy and they have blocked the passage and had assailed Shahjad by dragging him in the house of one Devi Chand and as a consequence of the said incident, the brother of the complainant Shahjad was physically assaulted by the sharp edged weapon and, ultimately, he succumbed to the injuries caused on account of the incident of 29th August, 2014. 7. The Appellate Court in the finding, which has been recorded while considering the Appeal against the rejection of the bail, though has recorded a finding that the appellant is not required or wanted in any other criminal case but considering the effect of Section 12 of the Act and the finding, which has been recorded by the Juvenile Justice Board in its order dated 20th October, 2014, held that keeping the juvenile/revisionist in custody, would be rather in his interest. The Appellate Court on considering the ratio as propounded by the Rajasthan High Court in the case reported in 2011 (4) Criminal Court Cases, Sonu Vs. Rajasthan as well as that of Allahabad High Court in the Case of Rahul Tiwari Vs. State of U.P. (H.C.) Allahabad, which dealt with the preposition as to upto what extent the latitude of Section 12 can be taken into consideration while granting the benefit at the stage of consideration of the bail application, the Appellate Court too accepted the finding, which has been recorded by the Juvenile Justice Board and, consequently, has rejected the Bail Application. 8. The Appellate Court rightly held that as per language used by the statute under Section 12 of the Act, has never intended to make the provision of Section 12 as mandatory because the provision itself creates a legal restrictions from release of accused under three exceptional circumstances, which has been dealt under Section 12 of the Act of 2015. 8. The Appellate Court rightly held that as per language used by the statute under Section 12 of the Act, has never intended to make the provision of Section 12 as mandatory because the provision itself creates a legal restrictions from release of accused under three exceptional circumstances, which has been dealt under Section 12 of the Act of 2015. Meaning, it has rightly held that bail could be denied too under the exception provided, thus this itself has held the provision of Section 12 as not to be mandatory. 9. It is not that both the authorities have not considered the impact of Section 12 of the Act, but considering the nature of offence and the circumstances under which, it has been committed, the Appellate Court as well as the Juvenile Justice Board had found that release of the revisionist on bail, would be detrimental to his own interest and the protection granted under Section 12 of the Juvenile Justice Act, hence, the release would be contrary to the purpose of Section 12 of the Act. Consequently, the appeal was also dismissed by the judgment dated 3rd January, 2015. 10. After having gone through the set of allegations levelled in the F.I.R. and the finding, which has been recorded by both the Courts below with regard to the impact as to what would be the consequence, in case, if the revisionist is released on bail, this Court is also in agreement with the view, that no error could be pointed out in the impugned order under challenge in the Revision. The Appellate Court rightly held that if a juvenile deviates from his studies and engages in commission of offence under Section 302 IPC, which is heinous offence, is not entitled for bail. 11. Consequently, the Revision lacks merit and is accordingly dismissed.