Partly allowed

Prajjwal Dube @ Adesh Dube v. State of U.P. and Another

Allahabad HC19 Mar 2018CRLR/19/2018

Case brief

AI extract

What is this about?

In this criminal revision, the High Court set aside an order rejecting bail for a juvenile accused in a dowry death case. The court held that the lower court erred by basing its decision on the gravity of the offence rather than the mandatory statutory criteria under Section 12 of the Juvenile Justice Act, 2015, and directed remission of the matter to include a social investigation report.

What did the court decide?

Set aside the impugned order and remanded the matter to the Additional District and Sessions Judge to decide afresh after obtaining a social investigation report within a month.

Prajjwal Dube @ Adesh Dube Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2018)

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Court No. - 17

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Case :- CRIMINAL REVISION No. - 19 of 2018

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Revisionist :- Prajjwal Dube @ Adesh Dube Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Vinod Kr Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Kumar Singh-I,J.

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This criminal revision has been directed against the judgment and order dated 7.12.2017 passed by the Additional District and Sessions Judge, Court No.2 Bhadohi in S.T. No.285 of 2017 (State vs. Prajjwal Dubey) arising out of case crime no.159 of 2017 under sections 498A, 304B IPC and 3/4 Dowry Prohibition Act by which the bail application no.682 of 2017 of the revisionist moved under section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (to be referred here-in-after as Act 2015) has been rejected.

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Learned counsel for the revisionist has contended that the present accused-revisionist is 'Dewar' of the deceased. In FIR general rule has been assigned of harassment of the deceased on account of demand of dowry by him along with other coaccused and due non-fulfillment of same, having murdered her by hanging. The co-accused father-in-law of the deceased Milan Dube and mother-in-law Nisha Dube have been granted bail by a Coordinate Bench of this Court on 5.9.2017 and 11.9.2017 respectively, hence prayer is made for releasing the present accused on bail by allowing the present revision.

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According to FIR, the prosecution case is that the deceased Jyoti Mishra was married to Shani Dube on 4.2.2016. The deceased was harassed for demand of dowry continuously since after her marriage. On 24.4.2017 in the morning, 'Mama' of the husband of the deceased had telephoned the first informant (father of the deceased) that Jyoti was sick and he should come to see her. When he reached her home, he found her dead and ligature mark was found around her neck. Thereafter, first information report was lodged by him against the present accused along with three others at P.S. Aurai, District Bhadohi under section 498A, 304B I.P.C. and 3/4 Dowry Prohibition Act.

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The record reveals that the accused was held to be a juvenile vide order dated 6.11.2017 by the Juvenile Justice Board who was held to be 17 years and 11 months old on the date of occurrence i.e. 24.4.2017 on the basis of his date of birth

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recorded in high school certificate. The said order has become final as the same has not been challenged before any higher forum.

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The Juvenile Justice Board had also conducted an enquiry under section 18 (3) of the Act 2015 and held vide order dated 24.11.2017 that looking to the mental and physical condition of the accused, his trial should be held by Children Court which has been defined under section 2(20) of the J.J. Act. In pursuance of the said order, the matter was referred to the Additional District and Sessions Judge, Court No.12 for trial and the said court has passed the impugned order on bail application of the accused which has been impugned before this Court in this revision.

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A perusal of the impugned order indicates, that the bail application of the revisionist-accused has been rejected on the ground due to death of the deceased within seven years of her marriage under not normal circumstances within the house of the accused-revisionist holding that there was no sufficient ground for granting bail to him and bail application was accordingly dismissed.

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It would be pertinent to mention here that in the amended Act of 2015, no change has been made in the provision of bail to the juvenile in conflict with law and the earlier provisions which were applicable at the time of Juvenile Justice (Care and Protection of Children) Act, 2000 are still continuing. For the sake of convenience the provisions of section 12 are quoted here-in-below.

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"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 of 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.

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(2) When such person having been arrested is not released on bail under sub-section (1) by the officer incharge 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

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brought before a Board.

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(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."

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For the sake of example excerpts of few judgments are being quoted hereinbelow:-

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In Mohd. Feroz @ Bhola Vs. State, 2006 (1) Crimes 389 , the Delhi High Court has held as follows in pargraph 6 of the judgment:-

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"6. The aforesaid Section makes it mandatory for a person to be released if such person is apparently a juvenile unless of course, there are reasonable ground for believing that the release of such person 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. No such fears have been raised on the part of the prosecution. The learned counsel for the State, however, submitted that the petitioner is accused of directly committing the murder of the deceased by use of a knife and he should be shown no mercy. This is not a question of mercy. The provision is mandatory and stipulates that such a person who is apparently a juvenile 'shall' be released on bail notwithstanding anything contained in the Code of Criminal Procedure. 1973 or in any other law for the time being in force subject only to the condition mentioned above in respect of which no fears have been raised by the prosecution."

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In Amit Kumar Vs. State of U.P., 2010 (71) ACC 209, in paragraph 6 of the jugment this court has held as below:-

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"6. A perusal of Section 12 of the Act reveals that a juvenile is entitled to bail notwithstanding gravity of the crime. His bail can be refused only when 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."

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3. In Master Niku Chaubey Vs. State, 2006 (43) AIC 789 (Delhi High Court) , the Delhi High Court has held in paragraph 4 of the judgment as follows:-

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" 4............In any event, as rightly observed in the impugned

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order, the nature of the offence is not one of the conditions on which bail can be granted or refused to the juvenile. Bail in respect of a juvenile has to be considered purely under the parameters of Section 12 of the said Act which requires bail to be granted mandatorily unless the court feels that the release of the juvenile is likely to bring him in the association of any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice."

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Lastly in Vijendra Kumar Mali Vs. State of U.P., 2003 (1) JIC 1036 (All) , this Court has held as below in paragraph 5 of the judgment as follows:-

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"5. The Sessions Judge, Sonebhadra has probably lost sight of the provisions of the Act and ignored the directions issued by this Court passed in the aforesaid revisions. He has mentioned the ground of refusal of bail to be the gravity of the offence, which is none of the grounds mentioned in Section 12 of the Act. It appears from this order that the Sessions Judge, Sonebhadra was bent upon to refuse the bail without caring for the law on this point. Section 12 of the Act provides 'that the juvenile offender shall be released on bail but the exception would be that he shall not be so released if there appears 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.'"

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In view of above provision of law, it is absolutely clear that while considering the bail to be granted to a juvenile in conflict of law, the gravity of offence is not required to be seen by the court. The only three criteria which have to be seen are that if the accused is released on bail, whether he could come with any known hardened criminal or that would expose him to moral, physical and psychological danger or that his release would defeat the ends of justice.

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The impugned order does not reflect that these three criteria were considered by the court below while passing the impugned order. No social investigation report has been gathered by the Additional District and Sessions Judge, Court No.2, Bhadohi (Gyanpur) from the District Probation Officer which was essential because after the accused-revisionist has been held juvenile that report ought to have been summoned so as to form opinion as to whether his release on bail would bring him in association with any known criminal or that he would be exposed to moral, physical and psychological danger or that his release would defeat the ends of justice. Due to the said report

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having not been gathered, the impugned order is erroneous and deserves to be set aside. It is also not apparent from the impugned order as to under which provision the bail application has been considered by the court below.

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The impugned order is accordingly set aside with a direction to the Additional District and Sessions Judge, Court no.2, Bhadohi to decide it afresh after calling for a social investigation report from the District Probation Officer in respect of the present accused-revisionist and decide the matter afresh in the light of the law laid-down under section 12 of the Act 2015 as interpreted by various courts mentioned above, within a month from today.

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Order Date :- 19.3.2018 AU

Prajjwal Dube @ Adesh Dube v. State of U.P. and Another

Case brief

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What did the court decide?

Prajjwal Dube @ Adesh Dube v. State of U.P. and Another

Case brief

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