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2020 DIGILAW 963 (ALL)

Subham Kumar Malik (Juvenile) v. State of U. P.

2020-06-17

J.J.MUNIR

body2020
JUDGMENT : J.J. Munir, J. 1. Shubham Kumar Malik, a juvenile in conflict with the law, has approached this Court under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'the Act'), asking this Court to revise a judgment and order of Shri Om Prakash Verma, Special Judge, POCSO Act, Bijnor dated 06.11.2019, dismissing Criminal Appeal No. 63 of 2019 and affirming an order of the Juvenile Justice Board, Bijnor dated 31.08.2019, refusing bail to the revisionist in Case Crime No. 225 of 2019, under Section 302, 201/34 I.P.C., P.S. Najibabad, District Bijnor. 2. Heard Sri Dharmendra Dhar Dubey, learned Counsel for the revisionist, learned A.G.A. appearing on behalf of the State and Sri Mukhtar Alam, learned Counsel appearing on behalf respondent no.2. 3. The prosecution case disclosed in the FIR is that the informant's son, Dipanshu, aged about 18 years, left home on 19.04.2019 without telling his whereabouts. The informant searched for him but could not locate him. Thereupon, the informant lodged a missing report on 21.04.2019 with P.S. Najibabad. In the meanwhile, the informant kept up search for his missing son. He could not find him. Then, on 23.04.2019, the dead body of the informant's son was found concealed within the Bhareki canal, falling in the local limits of P.S.-Kiratpur, district-Bijnor. It is said that some unknown offenders had done the informant's son to death. Upon receipt of this information, the informant and his relatives proceeded to the site where Dipanshu's body lay for the purpose of identification. It is also mentioned that the police of P.S. Kiratpur sent the body for autopsy. The information requests necessary action against unknown offenders. The prosecution story that unfolds is that two witnesses, to wit, Naseem and Pavan Kumar told the police that they had last seen the deceased in the company of co-accused, Harsh Verma @ Suraj and Ritul on 19.04.2019 at about 4.00 p.m. There are some call detail records which show that co-accused, Harsh Verma @ Suraj, on 19.04.2019 at 5.20 p.m. used the mobile handset of the deceased putting in his own SIM card and browsing the internet. The name of the revisionist and another co-accused, Manish @ Raja surfaced through a confessional statement of Harsh Verma @ Suraj recorded on 28.04.2019. The name of the revisionist and another co-accused, Manish @ Raja surfaced through a confessional statement of Harsh Verma @ Suraj recorded on 28.04.2019. In the said statement, Harsh Verma @ Suraj assigned the role of catching hold to the revisionist and the co-accused, Manish @ Raja whereas the role of inflicting the injuries is attributed to Harsh Verma @ Suraj and Ritul. 4. It is pointed out before this Court that the bail application of Ritul has been rejected by this Court vide order dated 02.12.2019 passed in Criminal Misc. Bail Application No. 52033 of 2019, whereas that of co-accused Manish @ Raja has been allowed vide order dated 21.11.2019 passed in Criminal Misc. Bail Application No. 49465 of 2019. It is argued by Sri Dharmendra Dhar Dubey, learned counsel for the revisionist with much emphasis that the role assigned to the revisionist is absolutely at par with Manish @ Raja. It is different from Ritul and Harsh Verma @ Suraj. Sri Mukhtar Alam, learned counsel appearing for the second opposite party does not dispute the fact that the role assigned to this revisionist is at par with Manish @ Raja and very different from Ritul and Harsh Verma @ Suraj. 5. This Court has also carefully considered the roles assigned to these various accused and the nature of evidence appearing against them. For one, this case rests on circumstantial evidence about which there is no eye witness. In case of Harsh Verma @ Suraj and Ritul, there is evidence of last seen by two independent witnesses, which those accused have not been able to explain. In addition, against co-accused, Harsh Verma @ Suraj, there is some evidence of the deceased's phone being used on the day when he disappeared after being seen in his company. Also, Harsh Verma @ Suraj and Ritul, on the confession of one of them have been credited with the role of assault whereas the role assigned to the revisionist and the co-accused, Manish @ Raja is of catching hold. 6. It is emphasized by learned counsel for the revisionist that on merits, Manish @ Raja with a role that is identical to the revisionist has been admitted to bail by this Court vide order dated 21.11.2019, details of which are mentioned hereinbefore. This accused, Manish @ Raja, is an adult and has been found entitled to the concession of bail. It is emphasized by learned counsel for the revisionist that on merits, Manish @ Raja with a role that is identical to the revisionist has been admitted to bail by this Court vide order dated 21.11.2019, details of which are mentioned hereinbefore. This accused, Manish @ Raja, is an adult and has been found entitled to the concession of bail. The submission of the learned counsel for the revisionist is that once on an identical role and evidence, an adult offender is found entitled to bail, it would be not only unfair but discriminatory to hold the juvenile in institutional incarnation. It is the revisionist's submission that it is not the purpose of the proviso to sub Section (1) of Section 12 of the Act that a juvenile's case be tested on the parameters of the three disentitling categories, where an adult circumstanced like him, would be entitled to bail. According to the learned counsel for the revisionist, the revisionist ought to be enlarged on bail once an adult co-accused with a similar role has been extended that indulgence. 7. Learned A.G.A. and Sri Mukhtar Alam, learned counsel appearing on behalf of opposite party no. 2 have opposed the revisionist's prayer. 8. This Court has keenly considered the rival submissions advanced by parties. It is true for a fact that the case of the revisionist is at par with Manish @ Raja and is clearly distinguishable with that of Ritul, who has been denied bail and the other co-accused Harsh Verma @ Suraj. 9. 2 have opposed the revisionist's prayer. 8. This Court has keenly considered the rival submissions advanced by parties. It is true for a fact that the case of the revisionist is at par with Manish @ Raja and is clearly distinguishable with that of Ritul, who has been denied bail and the other co-accused Harsh Verma @ Suraj. 9. The provisions of Section 12 of the Act that govern bails in case of juveniles are extracted below: "Section 12- Bail to a person who is apparently a child alleged to be in conflict with law (1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or 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 the supervision of a probation officer or under the care of any fit person: Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision. (2) When such person having been apprehended is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board. (3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order. (4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail." 10. (4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail." 10. The provisions of Section 12 of the Act are designed to ensure that bail is granted to a juvenile in a case where there is no possibility for an adult to be released on bail. The only fetter on that right to bail for a juvenile are the three exceptions that are carved out in the proviso to sub Section (1) of Section 12. In case, the juvenile is found to fall in one or the other disentitling categories envisaged by the proviso, last mentioned, bail may be denied to him. It cannot possibly be the legislative intent that in a case where an adult offender, identically circumstanced as a juvenile, is found entitled to bail, the juvenile's case has to further pass the test of not falling into one or the other disentitling categories envisaged in the proviso to sub Section (1) of Section 12 of the Act. If this construction were to be accepted, it would lead to the liberty of a juvenile being hedged in with further conditions about bail, over and above those requirements that an adult offender is to satisfy under the law. This construction would possibly expose the provisions of Section 12 to the peril of unconstitutionality on the ground of discrimination. 11. I have considered this question in Dharmendra (Juvenile) vs. State of U.P. and others, 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. 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 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. 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. 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. 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." 12. In the facts of the present case, this Court has noticed that the case of the revisionist is absolutely at par with co-accused, Manish @ Raja, an adult, who has been admitted to the concession of bail by this Court. This being so, there is no justification to hold the juvenile any further, in institutional incarceration. Even otherwise, this Court is of opinion that there is nothing in the Social Investigation Report that may lead to a legitimate inference that if the juvenile is released on bail he will come into contact or association with any known criminal or be exposed to any moral, physical or psychological danger or that his release would defeat the ends of justice. The conclusion to the contrary drawn by the two courts' below are based on a perverse inference drawn from the material on record. It must also be remarked that the learned Special Judge while writing the impugned order has not carefully considered the Social Investigation Report or referred to it. He has not also referred to the other material on record in order to test the case of the juvenile on the parameters prescribed under the proviso to sub Section (1) of Section 12 of the Act. A reading of his order shows that it carries more of paraphrasing of the statutory requirements than a consideration of the revisionist's case with reference to the facts and evidence on record. The revisionist is entitled to a more careful consideration of his case by the Appellate Court under Section 101 of the Act. The order of the Juvenile Justice Board is also flawed for the reason that it is quite reasonless. It records abrupt conclusions without indicating the basis to reach them. In the opinion of this Court, therefore, the impugned orders are manifestly illegal and cannot be sustained. 13. In the result, this revision succeeds and is allowed. The impugned order dated 06.11.2019 passed by the learned Special Judge, POCSO Act, Bijnor in Criminal Appeal No. 63 of 2019 and the impugned order of the Juvenile Justice Board dated 31.08.2019 are hereby set aside and reversed. The bail application made on behalf of the revisionist before the Board through his father stands allowed. 14. Let the revisionist, Subham Kumar Malik (Juvenile) through his natural guardian/ father Vedpal Singh Malik, be released on bail in Case Crime no.225 of 2019, under Sections 302, 201/34 IPC, P.S. Najibabad, District Bijnor upon his father furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Bijnor subject to the following conditions: (i) that the natural guardian/ father Vedpal Singh Malik 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 father Vedpal Singh Malik 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, Bijnor 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.