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2020 DIGILAW 959 (ALL)

Golu v. State of U. P.

2020-06-16

J.J.MUNIR

body2020
JUDGMENT : J.J. Munir, J. 1. Heard learned counsel for the revisionist and learned A.G.A. appearing on behalf of the State. 2. This revision is directed against an order of Ms. Renu Rao, learned Additional Sessions Judge, Hapur dated 29.04.2019 dismissing Criminal Appeal No. 26 of 2019, under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as 'the Act') preferred by the revisionist from an order of the Juvenile Justice Board, Hapur rejecting the revisionist's bail plea in Case Crime No. 283 of 2018, under Sections 307, 323, 504, 506 I.P.C. 3. The FIR giving rise to the crime briefly says that the informant's son was weighing goods at his shop in the evening hours at 8.00 o'clock when Shiva, Kamal, Anand and Golu (revisionist) all sons of Suraj alighted there and battered Vishal. Amongst them Shiva assaulted Vishal with a knife blow to his abdomen, injuring him. The report shows that the victim had been rushed to the hospital for medical aid. The bail plea of the revisionists that came up before the Juvenile Justice Board was rejected going by the Social Investigation Report which shows that there was lack of discipline and control in the family. The revisionist preferred an appeal to the learned Sessions Judge which too has been dismissed by the order impugned. 4. Aggrieved, this revision has been filed. 5. The submission of the learned counsel for the revisionist is that of all the four offenders, the revisionist is the only one who is a juvenile. The three adult offenders have been admitted to bail. He has called attention of the Court to the bail order dated 23.07.2018 passed by the learned Sessions Judge, Hapur in Bail Application No. 833 of 2018, enlarging Shiva on bail. Likewise, the Court has also been taken through the bail order dated 14.08.2018, also passed by the learned Sessions Judge, Hapur in Bail Application No. 1010 of 2018 granting bail to Kamal and Anand. Learned counsel for the revisionist submits that Shiva is not only an adult offender but the role of assault by knife has also been assigned to him. Learned counsel for the revisionist submits that Shiva is not only an adult offender but the role of assault by knife has also been assigned to him. He submits that once the accused, who has been assigned the role of assault, is granted bail and all the other accused, who are adults are enlarged on bail, there is no justification to detain a juvenile against whom the allegation is one of marginal participation. He submits that the orders impugned are bad inasmuch as the Courts below have proceeded on the reasoning that the revisionist is dis-entitled to bail because the atmosphere in his family is not conducive to well-being of the minor and may, in the event of his release on bail, bring him into association with some known criminal. He submits that the approach of the Courts below is patently flawed and manifestly illegal and that the Court's below have declined bail on irrelevant considerations. 6. This Court has keenly considered the matter. In a case where on merits an accused is entitled to bail, it would indeed be quite irrelevant to judge his case on the basis of the dis-entitling categories under the proviso to sub-Section (1) of Section 12 of the Act, because he happens to be a juvenile. If this construction were to be adopted, a case where an adult offender would be entitled to bail, a juvenile would still be subjected to incarceration. That does not merely appear to be the legislative intent. The Act is a beneficial legislation, designed to protect the interests of a juvenile. The provisions of Section 12 engraft a universal rule of bail to all juveniles, unless their case falls under three categories enumerated in the proviso to sub-Section (1) of Section 12 of the Act. This provision is designed to come to the rescue of a juvenile, where, if he were an adult, he would not be entitled to bail. It is certainly not framed to work in a way that a juvenile who, if an adult would be entitled to bail but being a juvenile have his liberty hedged in and circumscribed by the dis-entitling conditions mentioned in the proviso to Section 12(1) of the Act (supra). If this construction were to be adopted, in the opinion of this Court, it would expose the provision to a challenge about its constitutionality. If this construction were to be adopted, in the opinion of this Court, it would expose the provision to a challenge about its constitutionality. It is well settled that a provision is to be construed in a manner that saves it from the peril of being ultra vires. 7. I have considered this question in Dharmendra (Juvenile) vs. State of U.P. and others, Criminal Revision no.4141 of 2017 [ 2018 (7) ADJ 864 ], where it is held: "10. The matter can be looked at from another vantage. In case the revisionist were an adult and stood charged of the offence that he faces with a weak circumstantial evidence of last seen and confession to the police, in all probability, it would have entitled him to bail pending trial. If on the kind of evidence forthcoming an adult would be entitled to bail, denying bail to a child in conflict with law may be denying the juvenile/ child in conflict with law the equal protection of laws guaranteed under Article 14 of the Constitution. 11. The rule in Section 12(1) of the Act is in favour of bail always to a juvenile/ child in conflict with law except when the case falls into one or the other categories denial contemplated by the proviso. It is not the rule about bail in Section 12 of the Act that in case a child in conflict with law is brought before the Board or Court, his case is not to be seen on merits prima facie about his complicity at all for the purpose granting him bail; and all that has been done is to see if his case falls is one or the other exceptions, where he can be denied bail. The rule in Section 12 sanctioning bail universally to every child in conflict with law presupposes that there is a prima facie case against him in the assessment of the Board or the Court based on the evidence placed at that stage. It is where a case against a child in conflict with law is prima facie made out that the rule in Section 12(1) of the Act that sanctions bail as a rule, except the three categories contemplated by the proviso comes into play. It is where a case against a child in conflict with law is prima facie made out that the rule in Section 12(1) of the Act that sanctions bail as a rule, except the three categories contemplated by the proviso comes into play. It is certainly not the rule, and, in the opinion of the Court cannot be so, that a case on materials and evidence collected not being made out against a child at all, his case has to be tested on the three parameters where bail may be denied presuming that a prima facie case is constructively there. Thus, it would always have to be seen whether a case prima facie on merits against a child in conflict with law is there on the basis of material produced by the prosecution against him. If it is found that a prima facie case on the basis of material produced by the prosecution is there that would have led to a denial of a bail to an adult offender, in that case also the Rule in Section 12(1) of the Act mandates that bail is to be granted to a juvenile/ child in conflict with law except where his case falls into any of the three disentitling categories contemplated by the proviso. 12. In the opinion of this Court, therefore, the perception that merits of the case on the basis of prima facie evidence is absolutely irrelevant to a juvenile's bail plea under the Act would not be in conformity with the law. The catena of decisions that speak about merits of the case or the charge against a juvenile being irrelevant, proceed on facts and not an assumption that a case on merits is made out, and, not where the case is not at all made out prima facie. It is not that a child alleged to be in conflict with law against whom there is not iota of evidence to connect him to the crime would still have bail denied to him because his case may be placed in or the other disentitling categories under the proviso to Section 12(1) of the Act. If this kind of a construction were to be adopted it might expose the provisions of Section 12(1) of the Act to challenge on ground of violating the guarantee of equal protection of laws enshrined in Article 14 of the Constitution. If this kind of a construction were to be adopted it might expose the provisions of Section 12(1) of the Act to challenge on ground of violating the guarantee of equal protection of laws enshrined in Article 14 of the Constitution. It is an enduring principle that a construction that lends a statute to challenge about its constitutionality should be eschewed and one that saves and upholds its vires is to be adopted. In this context the guidance of their Lordships of the Hon'ble Supreme Court in Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 may be referred to:- "51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of 'litera legis'. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution." 8. Here, since all the accused, who are adult, have been admitted to bail, including co-accused, Shiva, who is credited with the role of assault with a knife, there is absolutely no justification for the Court's below to have refused bail to the revisionist on ground that he is likely to come into association with any known criminal. Here, since all the accused, who are adult, have been admitted to bail, including co-accused, Shiva, who is credited with the role of assault with a knife, there is absolutely no justification for the Court's below to have refused bail to the revisionist on ground that he is likely to come into association with any known criminal. This Court has perused the Social Investigation Report. In the opinion of this Court, there is no positive material on the basis of which it may be inferred that in the event of release on bail, the revisionist would come into association with any known criminal or that would expose him any moral, physical or psychological danger. In the considered opinion of this Court, both the Courts' below have manifestly erred in denying bail to the revisionist. 9. In the result, this revision succeeds and is allowed. The impugned order dated 29.04.2019 passed by the Additional Sessions Judge, Hapur in Criminal Appeal No. 26 of 2019 and the order dated 29.03.2019 passed by the Juvenile Justice Board, Hapur in Case Crime No. 283 of 2018, under Sections 307, 323, 504, 506 I.P.C. are hereby set aside and reversed. The bail application of the revisionist stands allowed. 10. Let the revisionist, Golu through his natural guardian/ mother Smt. Renu w/o Suraj, be released on bail in Case Crime No. 283 of 2018, under Sections 307, 323, 504, 506 P.S. Gadhamukhteshwar, District Hapur upon his mother furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Hapur subject to the following conditions: (i) that the natural guardian/ mother Smt. Renu will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the father will ensure that the juvenile will not repeat the offence. (ii) The revisionist and his mother, Smt. Renu will report to the District Probation Officer on the first Monday of every calendar month commencing with the first Monday of July, 2020 and if during any calendar month the first Monday falls on a holiday, then on the following working day. (ii) The revisionist and his mother, Smt. Renu will report to the District Probation Officer on the first Monday of every calendar month commencing with the first Monday of July, 2020 and if during any calendar month the first Monday falls on a holiday, then on the following working day. (iii) The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Hapur on such periodical basis as the Juvenile Justice Board may determine. (iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. (v) The computer generated copy of such order shall be self attested by the counsel of the party concerned. (vi) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.