Court No. - 41 Case :- CRIMINAL REVISION No. - 3227 of 2008 Petitioner :- Kapil Kumar Respondent :- State Of U.P. & Another Petitioner Counsel :- S.S. Pandey,Onkar Singh,R.K.Srivastava Respondent Counsel :- Govt. Advocate,Sushil Kumar Pandey Hon'ble Naheed Ara Moonis,J.
Heard the learned counsel for the revisionist and the learned A.G.A. and
perused the records.
The present revision has been filed by the revisionist Kapil Kumar
challenging the order dated 5.11.2008 whereby the learned Sessions Judge
rejected the Criminal Appeal No. 101 of 2008 preferred by the revisionist
against the order dated 16.10.2008 arising out of case Crime No. 1114 of
2008, under Sections 147, 148, 149, 302, 307 I.P.C., Police Station Nai
Mandi, district Muzaffar Nagar rejecting the prayer for bail and dismissing
the appeal. According to the prosecution case a first information report was
registered against the revisionist and other accused persons on 13.6.2008 at
10.40 A.M. in respect of the incident of the same date occurred at 10 A.M.
with the allegations that the applicant and other accused persons is said to
have assaulted Mohit son of the complainant with knife and on account of
which he succumbed to the injury. The applicant and other accused persons
have also fired at police party who reached at the spot at the time of the
incident. The post mortem was conducted and several incised wounds were
found and death was caused due to anti mortem injuries.
The applicant moved an application before the Juvenile Court claiming
himself to be juvenile and by an order dated 11.9.2008 the Board had declared
him as juvenile under the provisions of Juvenile Justice (Care and Protection
of Children) Act, 2000 (hereinafter referred to as the Act) yet the prayer for
bail was rejected by the Juvenile Court, Muzaffar Nagar on 16.10.2008 on the
ground that there is active participation of the applicant along with other
accused persons and has committed heinous offence and the object of justice
would be frustrated in case he is released on bail and likely to bring him in the
company of anti-social elements or expose him to moral, physical and
psychological danger.
Against the aforesaid order the appeal was preferred before the learned
Sessions Judge, Muzaffar Nagar, which too was rejected by the court below
by order dated 5.11.2008 on the ground that the applicant is a member of anti-
social elements who had escaped from the spot by committing murder and
thereafter also fired upon the police personnel, in case the applicant is
released, there are chances of his being coming into contact of unsocial
elements and he will indulge in heinous offences again. It was held that a
report of the Board available on record also shows that the purpose of justice
would frustrate if he is released on bail.
The order dated 5.11.2008 as well as the order dated 16.10.2008 is under
challenge in the present revision. It is contended by the learned counsel for
the revisionist that in spite of the fact that the court below vide order dated
11.9.2008 has accepted the applicant as juvenile, which is a final order yet it
has failed to appreciate that in case he will remain in jail there will be more
chances of becoming hardened criminal and the purpose for which the
Juvenile Justice Act has been made will be frustrated, therefore, the order
passed by the court below is unsustainable.He has been falsely implicated in
the case and the applicant is absolutely innocent and was a minor boy at the
time of incident and in case he is released on bail he will not misuse the
liberty of bail. On the other hand learned A.G.A. has contended that the
applicant along with other persons has committed heinous offence in
assaulting the student of his own college and there is active participation to
inflict injuries with knife, which is supported by the post mortem report. The
charge sheet has also been submitted against him and the court below has
rightly taken into account the prons and cons of the case and rejected the
prayer for bail as well as the appeal, there is no merit in this revision and as
such is liable to be dismissed.
Having considered the submissions of the learned counsel for the parties
it appears from the record that the applicant/revisionist was a minor at the
time of alleged incident as his age was 16 years 10 months and 6 days, which
was not challenged by the State of U.P. or the first informant. Consequently it
has become final in spite of the categorical findings with regard to his age, the
bail of the applicant has been refused on the ground that he will come in
contact with anti social elements in case he is released on bail. The court
below has completely overlooked the purpose of enacting the Juvenile Justice
(Care and Protection of Children) Act, 2000 is mainly for the care and
protection of juveniles who are under 18 years of age. By keeping him in jail
will bring him in bad company of other criminals.
The provision of bail as envisaged under Section 12 of the Juvenile Justice
(Care and Protection of Children) Act, 2000 is reproduced as under;
“12. Bail of juvenile. (1) When any person accused of a bailable or non-
bailable offence, and apparently a juvenile, is arrested or detained or
appears or is 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 institution or fit person} but he shall not be so
released if there appear reasonable grounds for believing that the 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.
(2) When such person having been arrested is not released on bail
under sub-section (1) by the officer in-charge of the police station, such
officer shall cause him to be kept only in an observation home in the
prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by
the Board it shall, instead of committing him to prison, make an order
sending him to an observation home or a place of safety for such period
during the pendency of the inquiry regarding him as may be specified in the
order.”
Therefore, the finding recorded by the court below is illegal and
against the provisions of law. The revisionist is entitled for bail as merely on
the basis of presumption or hypothesis that there will be some possibility to
bring the revisionist into the association of the people of such nature has no
substance.
In view of the above discussions the criminal revision is allowed and
the orders dated 5.11.2008 and 16.10.2008 are set aside with the direction that
the applicant Kapil Kumar involved in case Crime No. 1114 of 2008, under
Sections 147, 148, 149, 302 and 307 I.P.C. P.S. Nai Mandi, district Muzaffar
Nagar be released on bail on his furnishing a personal bond of his natural
guardian and two sureties each of the like amount to the satisfaction of the
concern Chief Judicial Magistrate with the undertaking of his father that he
will take care of the applicant and also the applicant will not tamper the
evidence during trial and will not pressurize/intimidate the prosecution
witnesses and the applicant will report to the police station in the first week of
every month.
Order Date :- 1.2.2010
Shahnawaz