Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Section 12 J.J. Act/no Criminal History/circumstantial Evidence Case/surmises Cropped In Rejection/revision Allowed/bail Granted.
JUDGEMENT TITLE : Shiva @ Suryakant Vs. State Of U.P. On 07/18/2011 By Allahabad High Court
CASE NO : CRIMINAL REVISION NO. 2463 OF 2011
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved


Criminal Revision No.2463 Of 2011

Shiva @ Suryakant...................Applicant/Revisionist
Versus
State Of U.P.......................................Opposite Party.

Hon'ble Vinod Prasad, J.

Sri Shiva @ Suryakant A Juvenile In Conflict With Law Has Preferred This Revision Under Section 53 Of The Juvenile Justice (Care & Protection Of Children) Act, 2000 For Seeking His Release On Bail In Crime No.15 Of 2011, Under Section 302 I.P.C. And Section 3(2)(V) Of SC And ST (Prevention Of Atrocities) Act, Police Station Kotwali, District Mainpuri Since He Had Failed To Secure The Same From Juvenile Justice Board Vide Its Order Dated 22.4.2011 In Case No.177 Of 2011 And Lower Appellate Court/ Session's Judge In Juvenile Appeal No. 20 Of 2011, Decided On 23.5.2011. Hence, This Revision.
Stating Briefly Allegations Against The Revisionist Leveled By Informant Ramvir In His F.I.R., Annexure No.1 To The Affidavit Annexed With This Revision, Were In Respect Of An Incident Occurred On 5.1.2011 Between 4.45 P.m. To 5.00 P.m. With Allegations That That His Younger Brother Veekesh Kumar, A Carpenter By Caste A Carpenter By Caste Was A Student Of Intermediate And Was Having An Affair With Meenakshi Sharma, Which Was Not Cherished By Her Mother Madhu Sharma And She Always Objected To The Overtures At The Behest Of Veekesh Kumar Towards Her Daughter. Because Of Infatuated Love Veekesh Kumar Often Visited Meenakshi's Abode. On The Date Of The Occurrence, Veekesh Kumar Received A Phone Call On His Mobile Phone No.7895927684, Where Upon, Intimating His Mother The He Will Take The Dinner After His Returned, That He Left The House And Did Not Return Back Since Thereafter. Family Members Wait For Veekesh's Return Since Late In Night And Since He Did Not Come Back They Moved Out In His Search. Following Morning At 9 A.m.,cadaver Of Veekesh Kumar Was Found Near Government Tube-well Besides Purang Hospital With Sustained Physical Injuries On Head And Face Which, Apparently Were Thought To Have Been Caused By Bricks. Since Veekesh Was Annihilated His Brother Ramvir Lodged Annexure No.1 On 6.1.2011 At 9.40 A.m. At PS Kotwali , Mainpuri,as Crime No. 15 Of 2011, U/S 302 IPC And 3(2)(5) SC/ST Act Against Madhu Sharma And Others.
I.O. Investigated The Offences And Concluding It, Charge Sheeted Three Accused Namely Madhu Sharma, Meenakshi,the Alleged Beloved,and The Revisionist Shiva @ Surya Kant Before C.J.M., Mainpuri For Those Offences.
Revisionist Claimed Juvenility Before The Court By Moving An Application For That Purpose. Learned C.J.M. For Determination Of Revisionist's Age Referred The Case Before Juvenile Justice Board, Which After Conducting Due Inquiry In Consonance With Provisions Of Juvenile Justice Act Ultimately, Vide It's Order Dated 1.4.2011, Concluded That On The Date Of Commission Of Offence, Revisionist Was A Juvenile Aged About 17 Years. Since This Determination Of Revisionist Age Was Questioned In Any Higher Forum By Any Body , The Same Had Now Attained Finality And As On Date Revisionist Is A Juvenile In Conflict With Law.
After Being Judged As Juvenile,revisionist Moved An Bail Application For His Release Before Juvenile Justice Board In Concerned Case No. 177 Of 2011, But Was Unsuccessful As His Such An Endeavour Was Rejected By Juvenile Justice Board Vide Its Order Dated 22.4.2011 And Subsequently Challenge To The Board's Order Before Lower Appellate/Session's Judge Also Met With Negative Fate As Revisionist Appeal Too Was Dismissed. Hence This Revision.
I Have Heard Sri Kamlesh Singh Learned Counsel For The Revisionist In Support Of This Revision And Sri Raghuraj Mishra, Learned AGA In Opposition.
Learned Counsel For The Revisionist Submitted That The Bail Prayer Of The Revisionist Was Refused By Juvenile Justice Board Only After Considering Gravity Of The Offence. At The Stage Of Bail, A Report From District Probation Officer Dated 20.4.2011 Was Summoned, Vide Annexure No.4, The Perusal Of Which Indicate That The Revisionist Had No Criminal Background. It Was Therefore, Contended That Refusal Of Bail To The Revisionist By Juvenile Justice Board And Later On By Lower Appellate Court Are Absolutely Illegal. Learned Counsel Submitted That Perusal Of Impugned Board's Order Indicate That Bereft Of Any Material And Sans Of Reasonable Approach It Recorded An Opinion That The Revisionist Is High School Fail And There Were No Chances Of His Continuing With Further Studies. It Also Hypothecated That There Was Likelihood Of His Indulging Into Crime And Deterioration Of His Physical And Psychological Traits And Qualities And Further That There Was Likelihood Of Revisionist Falling In Company Of Anti-social Elements And Thereby, His Release Will Frustrate The Cause Of Justice And Consequently Detention Of Revisionist In Juvenile Home, Mainpuri Will Be In Tune With Justice. Learned Counsel Retorted That All The Above Reasonings Were Were Any Back Ground Facts And Input Materials And Have Been Recorded Conjecturally. Juvenile Justice Board Failed To Consider Back Ground Of The Allegations That The Dispute Was Because Of Infatuated Relationship That The Deceased Was Having With Family Member And That Revisionist Had No Criminal Background And Proclivities. On The Material Placed Before It, There Was No Occasion For The Board To Record Findings That After Being Released On Bail, Revisionist Will Keep Company Of Anti-social Elements. He Was Further Contended That Opinion Of The Board That There Was No Likelihood Of Revisionist Continuing With His Studies Was Also Based On No Material And Is Purely Conjectural. It Is Additionally Submitted That Since Revisionist Had No Criminal Proclivity Nor There Was Any Prima Facie Input Material Before Juvenile Justice Board Therefore, Its Another Conclusion That Repetition Of Crime Is An Imminent Possibility Is Also Based On Unwarranted Hypothesis. Castigating Lower Appellate Court's Order, It Was Submitted That The Lower Appellate Court Did Not Analyzed And Summated Facts And Circumstances Of The Case In The Right Perspective,in Tune With Legislative Intent, And Illegally Rejected Revisionist Appeal By Concurring With Fallible Findings Recorded By Juvenile Justice Board. Lower Appellate Court Was Expected To Independently Scan The Materials Instead Of Relying Upon The Order By Juvenile Justice Board And Would Have Formed Its Independent Opinion And Since That Having Not Been Done, Appellate Court's Order Also Suffers From Same Ex-facie Error Committed By The Board And Hence Impugned Order By The Session's Judge Has To Be Castigated For Those Very Reasons And Therefore, Both The Orders, Are Unsustainable And Can Not Be Sustained And Therefore Revisionist Be Directed To Be Released On Bail.
Learned AGA Per Contra Supported Both The Impugned Orders And Submitted That Conspiringly, In A Planned Manner, Because Of Infatuated Relationship Murder Of Veekesh Kumar Was Orchestrated By The Revisionist And His Family Members. He Submitted That On Such Fact If The Revisionist Will Be Released On Bail It Will Defeat The Ends Of Justice. Learned AGA Submitted That Parents Have Got No Control Over The Revisionist And Therefore, For The Betterment Of His Psychological And Physical Traits His Retention In Juvenile Home Has Been Rightly Ordered By Both The Courts Below And Consequently Instant Revision Being Meritless Be Dismissed.
I Have Given A Thought Over The Entire Facts And Circumstances Of The Case And Have Gone Through The Two Impugned Orders. What Transpires From The Input Preceding Facts Are That It Is A Case Of Circumstantial Evidence. Sister Of The Revisionist Was Allegated To Have Been Entangled To The Deceased Veekesh Kumar, Who Was A Carpenter By Caste. Although, According To Allegations Deceased Was Done To Death Because Of That But Noticiable Fact Is That There Is No Eyewitness Account To The Said Incident. Entire Prosecution Charge Is Based On Circumstantial Evidence And The Only The Only Two Incriminating Circumstances Against The Accused Are Motive And Alleged Utterance By The Deceased That After His Return That He Will Have Dinner. But For These Two Incriminating Circumstances, There Is No Other Material To Implicate The Revisionist With The Crime. It Is Not Disclosed In The Impugned Orders Nor, It Seems That, There Is Any Material In The Case Diary That The Phone Call Was Made By The Revisionist Or Any Of His Family Members. However, That Is The Matter To Be Adjudged By The Trial Court In The Trial Which Is Still To Commence. At Present, But For The Aforesaid Two Materials, There Is Nothing Against The Revisionist. Opinion Of District Probation Officer That The Parents Have Got No Control Over The Revisionist Is Based On No Material Placed Before It. On What Basis It Concluded Thus Is Not Known And Therefore It's View Could Not Have Been Relied And Acted Upon In Absence Of Any Tangible Material Being Surfaced In Its Report. What Is Significant To Note Is Just A Line Above In Such Report, District Probation Officer Himself Has Mentioned That The Revisionist Had No Criminal Background. In Such A View, Giving An Opinion Against A Juvenile Without Any Background Facts Was Not A Fair Exercise By Probation Officer. Such A Opinion By The Officer Definitely Polluted The Thinking Process Of The Board As Well As Lower Appellate Court. In Continuation Of Said Fact The Opinion By The Juvenile Justice Board That There Is No Likelihood Of The Revisionist Continuing With His Further Studies Too Is Based On Conjecture And Surmises. Juvenile Justice Board Has Not At All Mentioned That They Had Inquired And Detailed On The Said Aspect From The Revisionist Who Had Refused Such An Offer. Next Conclusion By The Board That Parents Have No Control Over The Revisionist Juvenile, Is Also An Opinion Without Submitted Opinion. Gravity Of The Offence Is Not A Ground To Deny Bail To A Juvenile Accused. Unless The Conduct Of The Accused Is Such That It Indicates That In All Likelihood, After Being Released On Bail, A Juvenile In Conflict With Law Will Indulge Into More Crimes And There Are Imminent Chances Of His Repeating The Crime, Bail To A Juvenile Should Not Be Ordinarily Refused.
Lower Appellate Court, Instead Of Applying Its Independent Mind To The Facts And Circumstances Of The Case, Concurred With The Opinion Of The Juvenile Justice Board, Suffering From Such Patent Error Of Analysis And Appreciation, As Has Been Pointed Out Herein Above And Therefore, Its Order Is Also Vulnerable And Liable For Interference. On The Facts And Circumstances Appearing In The Instant Revision Some Of Exempler Decisions Which Can Be Relied Upon In Support Of The Opinion Sketched Above Are As Follows:-
IN Anil Kumar Vs. State Of U.P.:2007 Cr.L.J. Page 200 It Has Been Observed Thus:-
14. Therefore, There Was No Sufficient Ground To Refuse The Bail Application By Board As Well As Appellate Court. Above Pronouncements Are Fully Applicable In This Revision As Same Has Been Passed By Both The Courts Below Merely On The Basis Of Presumption And Guess Work Without Any Substance. Therefore, Both Courts Below Have Committed Illegality Or Incorrectness In Passing The Impugned Judgment And Order."
In A Juvenile Vs. State Of Orissa:2009 Cr.L.J. 2002, It Has Been Observed As Under:-
8. Applying The Above Law To The Present Case It Would Be Seen That Though The Offence Is A Planned Murder And Thus A Heinous One And Prima Facie Case Is Available Against The Petitioner, There Will Be No Impediment For His Release On Bail. As It Appears, The Petitioner Was Desparate Because Of The Untoward Sexual Attention Bestowed Upon Him By The Deceased. Finding No Other Way He Associated With Criminals To Bring An End To The Matter. He Had Not Associated Himself With Criminals For Any Monetary Gain Or Glamour. At The Cost Of Repetition It May Be Stated That Desperation Had Sent The Petitioner To Be Associated With Criminals And Once His Matter Has Been Solved His Release Is Less Likely To Bring Him Into Association With Any Known Criminals Henceforth. His Release On Bail Is Also Not Likely To Expose Him To Moral, Physical Or Psychological Danger. On The Other Hand, If He Is Not Granted Bail Then There Is Scope Of Psychological Danger. He Needs Parental Protection And Guidance To Bring Him Back To The Mainstream Of The Society From Which He Has Strayed. Thus His Release On Bail Would Aid The Ends Of Justice Rather Than Defeat It."
In Prakash Vs. State Of Rajasthan: 2006 Cr.L.J. 1373, It Has Been Observed Thus:-
"9. At The Time Of Consideration Of Bail Under Section 12 Of The Act, The Merit Or Nature Of Offence Has No Relevancy. The Language Of Section 12 Of The Act, Using The Word "shall" Is Mandatory In Nature And Providing Non Obstante Clause By Using The Expression "notwithstanding Anything Contained In The Code Of Criminal Procedure, 1973 (2 Of 1974) Or Any Other Law For The Time-being In Force Be Released On Bail" Shows The Intention Of The Legislature To Grant Bail To The Delinquent Juvenile Offender By Releasing Him On Bail Who Is Arrested Or Produced Before A Court; However, With Exception To Release Him On Bail If There Are Reasonable Grounds For Believing That His 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. It Is For The Prosecution To Bring On Record Such Material While Opposing The Bail And To Make Out Any Of The Grounds Provided In This Section Which May Persuade The Court Not To Release The Juvenile On Bail.
10. The Act Is Beneficial And Social-oriented Legislation Which Needs To Be Given Full Effect By All Concerned Whenever The Case Of Juvenile Comes Before Them. In Absence Of Any Material Or Evidence Of Reasonable Ground To Believe That The Delinquent Juvenile, If Release On Bail, Is Likely To Come Into Association With Any Known Criminal Or Expose Him To Moral, Physical Or Psychological Danger, It Cannot Be Said That His Release Would Defeat The Ends Of Justice. On The Contrary, Keeping In View The Legislative Intent In Enacting The Act, The Juvenile Offender Deserves To Be Released On Bail."
In Sanjay Chaurasiya Vs. State Of U.P.: 2006 Cr.L.J. 2957 It Has Been Observed As Follows:-
"10. In Case Of The Refusal Of The Bail, Some Reasonable Grounds For Believing Above Mentioned Exceptions Must Be Brought Before The Court Concerned By The Prosecution But In The Present Case, No Such Ground For Believing Any Of The Above Mentioned Exceptions Has Been Brought By The Prosecution Before The Juvenile Justice Board And Appellate Court. The Appellate Court Dismissed The Appeal Only On The Presumption That Due To Commission Of This Offence, The Father And Other Relatives Of Other Kidnapped Boy Had Developed Enmity With The Revisionist, That Is Why In Case Of His Release, The Physical And Mental Life Of The Revisionist Will Be In Danger And His Release Will Defeat The Ends Of Justice But Substantial To This Presumption No Material Has Been Brought Before The Appellate Court And The Same Has Not Been Discussed And Only On The Basis Of The Presumption, Juvenile Justice Board Has Refused The Bail Of The Revisionist Which In The Present Case Is Unjustified And Against The Spirit Of The Act. It Appears That The Impugned Order Dated 27-6-2005 Passed By The Learned Sessions Judge, Meerut And Order Dated 28-5-2005 Passed By The Juvenile Justice Board Are Illegal And Are Hereby Set Aside.
11. Keeping In View The Welfare Of The Revisionist With A Hope That He May Recover Himself, He Is Entitled For Bail"
In View Of Above Discussions, I Allow The Revision, Set Aside Both The Impugned Orders Passed By Juvenile Justice Board As Well As Lower Appellate Court And Direct The Revisionist To Be Released On Bail On His Father Shashi Kant Mishra Furnishing A Personal Bond Of Rs.50,000/- With Two Solvent Sureties Each In The Like Amount To The Satisfaction Of Juvenile Justice Board, Mainpuri In Crime No.15 Of 2011, Under Section 302 I.P.C And Section 3(2)(V) Of Scheduled Castes And Scheduled Tribes (Prevention Of Atrocities) Act, Police Station Kotwali, District Mainpuri On The Condition That Revisionist Will Be Get Admitted In A School And His Father Will Take Care Of His Education And Betterment That He Will Not Allow Him To Indulge In Any Criminal Activity And Will Keep A Check On His Activities. Both The Sureties Are Directed To Be Close Relatives Of The Revisionist Juvenile.
Revision Is Allowed As Above.

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