Allowed

Babli @ Khusbu v. State of U.P.

Allahabad HC29 May 2019CRLA/2391/2019

Case brief

AI extract

What is this about?

The High Court allowed the bail appeal of a 16-year-old juvenile accused in a dowry-related death case. It held that the lower court erred in rejecting bail based on the offence's heinous nature without establishing statutory grounds under Section 12 of the Juvenile Justice Act regarding association with criminals, danger, or defeat of justice.

What did the court decide?

The juvenile appellant was released on bail in the custody of her father, Sri Chandra Prakash, upon filing a personal bond and two sureties.

Babli @ Khusbu Vs State of U.P. — Bail and Remand | Allahabad HC (2019)

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Court No. - 80

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Case : - CRIMINAL APPEAL No. - 2391 of 2019

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Appellant : - Babli @ Khusbu Respondent : - State Of U.P. Counsel for Appellant : - Shashi Dhar Pandey Counsel for Respondent : - G.A.,Satendra Singh

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Hon'ble Pradeep Kumar Srivastava,J.

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Heard Shri Shashi Dhar Pandey, learned counsel for the appellant, Shri Patanjali Mishra, learned AGA-I for the State, Sri Satendra Singh, learned counsel for informant and perused the record.

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This appeal has been filed by juvenile Babli @ Khusbu against the order dated 31.01.2019 passed by the Special Judge (Children's Court), Court No.8, Firozabad, arising out of Crime No. 171 of 2017, under sections 498A, 307, 304B I.P.C. and 3/4 of D.P.Act, P.S. Nagla Khangar, District Firozabad by which the bail application of the juvenile has been rejected by the learned court below by impugned order dated 31.01.2019. The impugned order has been challenged by the appellant on the ground that impugned order passed by the learned court below is not just and proper and against the evidence on record, has been passed on the basis of surmises and conjecture. The juvenile has been falsely implicated considering direct and indirect evidence available on record against juvenile nor there is any criminal antecedent. The juvenile is aged about 16 years, 5 months and 19 days old, as per High School mark-sheet. She is minor and at present she is student of B.Sc. Ist year, J.S.University, Shikohabad, Firozabad. Learned court below while rejecting bail application did not analyse the provision of section 15 of the Juvenile Justice Act and wrongly rejected the bail application based on presumption. The deceased committed suicide due to aggressive behaviour. There is no one behind the incident. There was no demand of dowry and dispute arose simply, because her husband was working at Bharatpur, Rajasthan and she was anxious to live with her husband. At the time of incident no other family member was present there. Deceased put fire on herself, therefore, impugned order is not sustainable under law and is liable to be set aside and juvenile is entitled to be released on bail in the custody of her father Sri Chandra Prakash.

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3.The FIR version is that the incident took place on 25.10.2017 and on the next day i.e. 26.10.2017, FIR was lodged by Sri Mukesh Kumar, father of the deceased. Accordingly, the deceased was married with Sumit Kumar and accused persons

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started harassing the deceased on account of adequate dowry and non-fulfilment of dowry demand. They used to beat her and they were demanding Alto Car and Washing Machine. She being regularly harassed. On 25.10.2017 when the informant went to her in-laws to talk them in respect of dowry and when he was coming out from the house, some shout and noise was coming out from in-laws house and after closing door from inside and they poured kerosene oil on the deceased and lit fire. The people of that village gathered there and door was got open. In the meantime, the deceased was completely burnt, she was admitted in Safai, Hospital, Etawah and while she was under treatment, FIR was lodged. Subsequently, she died.

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4.From perusal of the order of Juvenile Justice Board, dated 09.01.2019, which has been filed alongwith supplementary affidavit by the appellant, juvenile Justice Board has determined age of the appellant to be 16 years, 5 months and 19 days and it has also mentioned that because the juvenile is above 16 years her age and is below 18 years of age, she was transferred to the Children Court under section 18(3) of the Juvenile Justice Act to be tried as adult.

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Learned A.G.A. has vehemently opposed and has contended that the learned trial court has rightly rejected the bail application on the basis of sufficient evidence available on record against the appellant.

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Section 12 of Juvenile Justice Act, 2015 by the amended Act the criteria for bail under section 12 of the Juvenile Justice Act has not been changed and provision has been made under Section 12 of the Act that when any person accused of a bailable or a non-bailable offence and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution except when

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if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or

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that it will expose him to moral, physical or psychological danger, or

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that his release would defeat the ends of justice.

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It has been held by the supreme court in Dr. Subramaniam

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Swamy vs Raju, 2014 (86) ACC 637 that a juvenile has to be released on bail unless the court has a reasonable ground to believe that his release will bring him into association of some known criminal, or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice.

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Section 15 of the Amending Act only provides for transfer of a juvenile to the Children Court for trial as an adult. Where the child has attained the age of 16 years and has been alleged to have committed heinous offence, the JJ Board is required to conduct a preliminary inquiry with regard to his mental and physical capacity to commit offence, ability to understand the consequence of the offence and the circumstances in which the offence was committed considering their physical, psychological and mental status in commission of crime. Section 18(3) of the Act provides that after making the assessment under section 15, JJ Board comes to a conclusion that there is a need for trial of the child as an adult, the Board may pass an order for the transfer of the trial of the case to the Children Court.

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It is pertinent to mention here that Section 12 of the Juvenile Justice (Care and Protection of Children) Act has not been amended so far as the parameters and yardstick for granting bail to the juvenile-accused is concerned. Therefore, while rejecting the bail application of such juvenile, it cannot be the criteria that the alleged offence is of serious and heinous nature. The order must show that the grant of bail to the juvenile-accused is against his interest as there is possibility of his being associated with known criminals, or there is some short of moral, physical or psychological danger to him or there is likelihood of end of justice being defeated. All these conditions have been incorporated in law in order to ensure justice to the juvenile.

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On perusal of the impugned order, it appears that learned Children Court has referred the provision contained under section 12 of the Juvenile Justice Act and and is also taken into consideration the report of the Probation Officer, it has also been mentioned that the mental and physical condition of the juvenile was upto the mark, she is studying in B.Sc. Ist year. So far as, attitude of discipline is concerned, it has been further mentioned that her release will expose her to moral, physical and physiological danger and if she is released on bail the end of justice will be defeated.

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11.It is pertinent to mention here that new Juvenile Justice Act has changed the law for the trial of the juvenile as an adult if the juvenile is aged above 16 years. The yardstick for granting

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bail to juvenile is not changed. Section 12 of the Juvenile Justice Act requires that bail to the juvenile will be mandatory unless release of the juvenile will bring him to the association of some known criminal or release will expose her to some moral, physical and physiological danger and it will defeat the end of justice. Needless to point out that this benevolent section has been enacted to ensure justice to the juvenile and end of justice needs to be appreciated in that sence.

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12.It has been pointed out from the side of the complainant that in the dying declaration given by the deceased she has specifically mentioned the role of the juvenile saying that she and her mother pored kerosene oil and lit fire. Learned Children Court has taken into consideration this aspect and considering the offence to be serious and heinous, keeping in view all circumstance has rejected the bail claim of the juvenile. It has been further pointed out that within 6-7 months from the date of marriage this incident has occurred and viewing from that angle the offence has become more serious and heinous.

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13.Considered the submission of both sides. It needs to be pertinently mentioned that the juvenile is only 16 years, 5 months and 19 days in age and she is not the sole author of the crime. If any offence as alleged in the dying declaration has been committed the same has been committed in association of mother. It is admitted that the juvenile is studying in B.Sc Ist year and the fact that she is pursuing graduation shows that she is a normal student and the report of the Probation Officer is not based on any objective assessment that her release will bring her in moral, physical and physiological danger. It is also not based on any objective assessment how juvenile release will defeat the end of justice. After all she is juvenile and advantage available under the Juvenile Justice Act must be provided unless the 3 grounds mentioned in section 12 of the Juvenile Justice Act are shown.

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In my view, the judgement of the learned Children Court is totally based on dying declaration which is yet to be proved during trial. This kind of offence cannot be viewed with the angle that the release will bring the juvenile in association to some known criminal. It is possible that contrary may take place if she is kept in confinement for long period as natural growth and her education will definitely be adversely affected. The learned Children Court not considered the welfare of the juvenile, which is the sublime object under law and has based the impugned order only on the ground of heinousness and seriousness of the crime. The impugned order is perverse and illegal and is not sustainable in eye the of law and is liable to be

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set aside.

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The juvenile, accused-appellant namely Babli @ Khusbu be released on bail and he be given in the custody of his father guardian namely Sri Chandra Prakash on his filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian father Sri Chandra Prakash shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. He will also give an undertaking that on being so released on bail, the accusedappellant namely juvenile Babli @ Khusbu will not however indulge in commission of any crime and he will ensure his presence during trial before the court whenever so required by the court below.

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With the aforesaid direction the present appeal is finally allowed .

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Office is directed to transmit the certified copy of this order to the court concerned for information and its necessary compliance.

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Order Date :- 29.5.2019 PKC

Babli @ Khusbu v. State of U.P.

Case brief

What is this about?

What did the court decide?

Babli @ Khusbu v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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