High Court
Case Details
Court No. - 91 Case :- CRIMINAL REVISION No. - 1604 of 2022 Revisionist :- Juvenile (X) Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Abhishek Tiwari Counsel for Opposite Party :- G.A.,Ajit Kumar Hon'ble Mrs. Jyotsna Sharma,J. 1. Heard Sri Abhishek Tiwari, learned counsel for the revisionist, Sri O.P. Mishra, learned AGA for the State of U.P. and Sri Ajit Kumar, learned counsel for respondent no. 2- informant. 2. This criminal revision has been filed challenging the order dated 16.03.2022 passed by the Juvenile Justice Board, Ghaziabad and further challenging the order dated 06.04.2022 passed by the Additional Sessions Judge (POCSO Act), Court No. 2, Ghaziabad in Criminal Appeal No. 33/2022 affirming the order of the Juvenile Justice Board declining bail to the juvenile in criminal case arising out of Case Crime No. 51 of 2022 under Section 302 IPC and Sections 3(2)(5) of SC/ST Act, Police Station Sahibabad, District-Ghaziabad. 3. As per the prosecution case, the deceased departed from his house on 01.01.2022 at 04.30 in the evening, informing his brother that one Babban and his Bhatija (present juvenile) had called him to come over, he went but did not return. When Babban was contacted, he told that the deceased was with him at Noida. At about 12.43 at night, a petrol police informed him that his brother was lying at Shyam Enclave, Ghaziabad. On receiving such information, the informant reached the place. The people, present there, informed him that some brawl took place there and he has been pushed from fourth storey of the building. The deceased was taken to the hospital, however, he
Facts
was declared as brought dead. In the FIR, it was also stated that the deceased bought a vehicle from the accused Babban and the present juvenile, which was not been transferred by them, therefore, he has been murdered.
Legal Reasoning
proportion as far as his prima facie involvement in the crime is concerned and cannot be a sole ground to reach a finding as defeating ends of justice. 12. In this case, the mother has applied for release of the child in her custody stating that she will take good care of her child. It cannot go to serve the best interest of the boy of below 13 years of age to be kept in custody for long, away from his mother and his family members. He has already been away from them for last 8 months now. This may not contribute to his mental or psychological health. This is a case where mother's custody is preferable over institutional custody. He also needs to continue his studies for which the guardian can be bound over.
Arguments
4. It is contended on behalf of the revisionist that the impugned orders have been passed ignoring the broader principles of law, as applicable in the matters relating to bail to the juvenile and further ignoring the mandate of Section 12 of the Juvenile Justice Act, 2015; the courts below have passed the impugned orders in an arbitrary manner and have drawn conclusions without having sufficient material before them. It is further contended that there is in fact no reliable evidence showing the involvement of juvenile in this case; initially the informant lodged a report at Dilshad Garden, Delhi without naming any person as the assailant; After a gap of 9 days, a FIR was lodged with concocted facts; though the motive has been mentioned in the FIR, however, no evidence as to sale and purchase of the vehicle has been collected; the juvenile is neither the owner nor in possession of any vehicle in question and he could not be on account of his minority; there is no eye-witness of the incident. The whole story suffered from inherent weakness. 5. Finding one of the named person as juvenile, the matter came before the Juvenile Justice Board where an age determination inquiry was conducted and he was found aged 12 years 10 months on the date of occurrence. His application moved through his mother for release, was rejected by the Juvenile Justice Board on 16.03.2022. A Criminal Appeal No. 33 of 2022 preferred against the aforesaid order through mother and natural guardian also came to be dismissed by an order dated 06.04.2022. Now the juvenile through his mother is before this Court. 6. I went through the order of the Juvenile Justice Board dated 16.03.2022. In a very brief order, the Juvenile Justice Board appears to have declined bail to the juvenile on the basis of the nature of the allegations only; no grounds have been mentioned for arriving at inferences as to how his release may expose the juvenile to any moral, physical or psychological danger or how his release may defeat the ends of justice. 7. I also went through the order of the appellate Court dated 06.04.2022. It appears that the appellate Court too agreed with the conclusion reached by the Juvenile Justice Board which essentially was based on the nature of the crime; After hearing both the sides the appellate Court took certain other facts and circumstances into consideration and ultimately decided not to grant bail to the juvenile; The appellate Court discussed the merits of the case and referred to the evidence of CCTV footage, which showed the juvenile and his uncle, a co-accused fleeing from the place of occurrence on a scooty; the appellate Court took notice of defence story as narrated in his bail application which gives an impression that the Court shifted the burden of proving innocence somewhat on the defence; the appellate Court came to the conclusion that there has been evidence to show his presence on the spot; also took notice of the fact, as noted in the DPO report, that the juvenile left the school studies after passing Class 5th and that he was not interested in school studies; the fact that the co-accused, who was having a criminal history of 10 cases resided in his neighborhood as well as of the fact that his father had also a history of 13 criminal cases. 8. It appears that on the basis of the above facts and circumstances, the appellate Court was of the view that he may come into contact of criminal elements, therefore, there is a probability of his having exposed to moral, physical or psychological danger. Thereafter, the appellate Court was also of the view that in the background of the nature of the offence and probability of his involvement, his release may defeat the ends of justice. 9. I went through all papers on record. It may be noticed that there is no such report, which may reveal that there was any real possibility of bringing him in association with any "known criminal". The social investigation report, which may at times prove quite useful and relevant for the purpose of disposal of bail application of juveniles under the Juvenile Justice Act, 2015 nowhere stated that his father had any criminal history. Instead it is mentioned therein that his father is a teacher, his three elder brother are respectively student of B.Tech, BBA and Class 12th preparing for competitive examinations and the elder sister is a student of Class 11th. It is also mentioned that the boy is religiously inclined and his socio-economic condition is satisfactory and that his family was residing at that place for the last 17 years. As per the DPO report, the persons of the locality, did not give any information about his criminal history or association with criminal elements or any criminal tendencies. The DPO report mentions that his family has been sensitive towards education. 10. I fully agree with the observations of the appellate Court that the fact that the assailant is a juvenile, does not entitle him for the benefit of bail as a matter of right, as the same can be denied for certain reasons. Having said that I go to the relevant proviso to Section 12(1) of the Juvenile Justice Act, 2015, which enumerates three exceptions, in which the bail shall be denied to the juvenile. The proviso to Section 12(1) is as below:- "(i) 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 (ii) the person's release would defeat the ends of justice, and (iii) the Board shall record the reasons for denying the bail and circumstances that led to such a decision." The opening words are that such "person shall not be released if there appears reasonable grounds for believing....................". The question which arises is what shall be the reasonable grounds. In my view the mere probabilities, conjectures or surmises cannot take place of "reasonable grounds". The Court should have some good material to arrive at a conclusion bringing the case within three exceptions, as aforesaid, which was not there. It appears that the appellate Court got swayed by the nature of allegations or offence in which he, as per opinion of the appellate Court, appeared to have been involved. This fact impelled the appellate Court to draw conclusion that his release shall defeat the ends of justice. The appellate Court, in my opinion, took a very narrow view of the ends of justice. The ends of justice brings within its scope three broad facets. Firstly, the welfare of the child himself. Secondly, the demands of justice of the victim or the victim's family. Thirdly, the larger concerns of the society. When the second aspect i.e., the demands of justice to the victim/his family is considered, the factors like nature of the offence, the evidence collected, the extent of involvement, the methodology adopted, the background or cause or the motive and such other facts of the kind or merits of the case are the factors which may be of great significance. 11. If this case is tested on the above parameters following facts assume importance. Firstly, that the boy was of quite immature age, as he was only 12 years 10 months at the time of the occurrence. The prosecution story which has been developed says that all the three i.e., victim, co-accused Babban and the juvenile were having liquor at the 4th storey of a building (having a house where co-accused Babban resided); some altercation ensued and he was pushed from the balcony; co- accused and the juvenile were seen fleeing from the crime scene. Even if the prosecution story is taken at its face value, the facts which attract the attention of this Court is that the juvenile who was a boy of quite immature understanding merely accompanied his uncle, (uncle the co-accused probably had prior enmity with the deceased over some matter of sale and purchase of vehicle). I cannot understand how a boy of below 13 years could be interested party in such a dispute between two adults. It is also pleaded that he came to the spot to bring meals for his uncle. It is contended that there is no evidence to substantiate the fact that the deceased was in fact pushed from the 4th storey of the building and that it was not mere accident. In my view, as said earlier, in closing lines of Para-10, the merits of the matter could be of ample significance and could prove a good guide for deciphering the ends of justice. In my opinion, the fact of fleeing from the spot on a scooty with his uncle, cannot be given importance out of the
Decision
13. In view of the above, the revision is allowed. The judgment and order dated 06.04.2022 passed by the Additional Sessions Judge (POCSO Act), Court No. 2, Ghaziabad and order dated 16.03.2022 passed by the Juvenile Justice Board, Ghaziabad, are hereby set aside. 14. Let the revisionist, minor "X' through his Guardian/Mother be released on bail in Case Crime No. 51 of 2022 under Section 302 IPC and Sections 3(2)(5) of SC/ST Act, Police Station Sahibabad, District-Ghaziabad upon his guardian furnishing a personal bond with two solvent sureties of her relatives, each in the like amount to the satisfaction of the Juvenile Justice Board, Ghaziabad subject to the following conditions: (i) that the guardian will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any criminal or allowed to be exposed to any moral, physical or psychological danger and further that the guardian will ensure that the juvenile will not indulge in any criminal activity; (ii) The revisionist shall not tamper with the evidence or threaten the witnesses; (iii) The revisionist through guardian shall also file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. (iv) 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 on such periodical basis as the Juvenile Justice Board may determine. (v) The guardian shall also furnish an undertaking that she will get him admitted to a school for imparting academic or technical education and shall take good care of him so that he continues with the same as a regular student. 15. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led, uninfluenced by any finding or observation whatsoever in this order. Order Date :- 9.11.2022 Vik/-SFH/- Digitally signed by VIKRAM GUPTA Date: 2022.11.16 16:59:23 IST Reason: Location: High Court of Judicature at Allahabad