Kanchan Sonkar (Minor) Vs State of U.P. and Another

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AFR

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Court No. - 90

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Case :- CRIMINAL REVISION No. - 1266 of 2020

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Revisionist :- Kanchan Sonkar (Minor) Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Anil Kumar Dubey,Shailendra Kumar Rai Counsel for Opposite Party :- G.A.

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Hon'ble Deepak Verma,J.

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List revised. Despite service of notice, none appears on behalf of the opposite party no. 2 to oppose the present criminal revision.

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Heard learned counsel for the revisionist and learned A.G.A for the State and perused the record.

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This revision is directed against the judgment and order dated 08.06.2020 passed by Special Judge, (POCSO)-01, Ghazipur, dismissing the Criminal Appeal No.39 of 2020 (Kanchan Sonkar vs. State of U.P.) under Section 53 of the the Juvenile Justice (Care and Protection of Children) Act 2015 (for short 'the Act') and affirming an order of Juvenile Justice Board, Ghazipur dated 19.05.2020 refusing the bail plea of the revisionist in Case Crime No.603 of 2019 (State vs. Kanchan Sonkar), under sections 147, 148, 149, 302, 34, 307 IPC, Police Station Kotwali, District Ghazipur.

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The fact of the present case is that the informant lodged FIR against the revisionist and seven other co-accused persons alleging that revisionist and other co-accused person had stabbed his son. The averments made in the FIR is that on 08.10.2019 in the evening informant's son namely Monu alongwith his friend and some other boys of the village were going to see the festival of Dushehra, in the way at about 200 meter Phullanpur Railway Crossing near Gyatri Mandir, the revisionist and seven other co-accused persons stabbed his son, due to which he received serious injuries and he died. Learned counsel for the revisionist submitted that as per marksheet, the revisionist is aged about 15 years. He further submitted that nothing on record to show that revisionist will come in the association of any known or unknown criminal activities. He further submitted that real mother Sheela Devi has full control upon him and there is no chance of any moral, psychological

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and physical danger against the revisionist. Mother who is real guardian of the minor having full control over his son and she will not allow him to come in the association of any known or unknown criminal implicated person. He further submitted that gravity of offence cannot be looked on merit while considering the bail of juvenile. The report of the District Probation Officer (annexed as annexure 4 to the revision) shows that revisionist having no criminal record and in total observation, revisionist can be improved his mental criminal activities. Learned counsel for the revisionist further submitted that co-accused Vipin Pandey, who is minor and named in the FIR, has been enlarged on bail by the coordinate Bench of this Court in Criminal Revision No.1155 of 2020 vide order dated 23.09.2020 and co-accused Dinesh Bind has been granted bail by this Court in Criminal Misc.Bail Application No.165 of 2020 vide order dated 21.01.2020.

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Learned counsel for the revisionist/applicant submits that revisionist is innocent and has been falsely implicated in concocted case; only gravity of the offence is not relevant consideration for refusing grant of bail to juvenile as has been envisaged in Section 12 of the Act and it has been consistent view of various courts; the Board or the lower appellate court has not given any reason or material on record which shows that release of the juvenile is likely to bring him into association with any known criminal or expose him to moral physical or psychological danger, that his release would defeat the ends of justice; there is no criminal history of the applicant and there is no hope of early conclusion of the trial; the applicant has remained confined in the child observation home for an unduly long period of time, since 17.01.2020.

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Learned A.G.A. vehemently opposed the present criminal revision. It is submitted that the incident reported is true and it is wrong to say that the allegations made against the applicant are false, and/are motivated. Also, reliance has been placed on the findings recorded in the bail rejection orders to submit that the instant revision may be dismissed.

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It is not in dispute that the applicant is a juvenile and is entitled to the benefits of the provisions of the Act. Under Section 12 of the Act, the prayer for bail of a juvenile may be rejected 'if there appear reasonable grounds for believing that the release of the juvenile 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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The provisions relating to bail for a juvenile are carried in Section 12 of the Act, which reads as under:

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"(1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or 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 person:

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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 the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

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(2) When such person having been apprehended is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be 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 make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.

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(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."

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The above provisions clearly show that once a person is held to be a juvenile in conflict with law, then Section 12 of the Act would govern the question of grant of bail and the custody of juvenile and it will not be governed by the provisions of the code of the criminal procedure. It is important to note that gravity or seriousness of the offence, should not been taken as an obstacle or hindrance by the Legislature to refuse bail to a delinquent juvenile. No straight jacket formula of inflexible nature can be laid down as it would depend on facts and circumstances of each case. Words "ends of justice' is confined to those facts which show that the grant of bail itself is likely to result in injustice.

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The court has to see whether the opinion of the learned appellate Court as well as Juvenile Justice Board recorded in the impugned judgment and orders are in consonance with the provision of the Act. Section 12 of the Act

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lays down three contingencies in which bail may be refused to a juvenile offender. These are:-

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(i) if the release is likely to bring him into association with any known criminal, or

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(ii) expose him to moral, physical or psychological danger, or

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(iii) that his release would defeat the ends of justice?

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Gravity of the offence has not been mentioned as a ground to reject the bail. It is not a relevant factor while considering to grant bail to the juvenile. It has been so held by this Court in the cases of Shiv Kumar alias Sadhu Vs. State of U.P. 2010 (68) ACC 616(LB); Abdullah @ Abdul Hassan Vs. State of U.P. and Ohers [2015 (90) ACC 204]; Maroof Vs. State of U.P. and Another [2015 (6) ADJ 203]; Criminal Revision No. 112 of 2015 (Suraj @ Ashok Sukla Thru. Father Mahendra Shukla Vs. State of U.P. and Another) and Amit Kumar Vs. State of U.P. 2010(71) ACC 209 decided on 02.07.2015.

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The Act, namely, Juvenile Justice (Care and Protection of Children) Act, 2015 being beneficiary and social reforms oriented legislation, should be given full effect by all concerned whenever matters relating to juvenile comes for consideration before them. There must be any material or evidence reflecting reasonable ground to believe that delinquent juvenile, if released on bail is likely to fall into association with known criminal persons or such liberty may expose him to moral, physical or psychological danger, or his release would defeat the ends of justice. In absence of such reasonable grounds the bail of juvenile should not be refused. In Sanjay Chaurasia Vs. State of U.P. 2006 Cr.L.J. 2957 it has been observed that:-

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"10. In case of the refusal of the bail, some reasonable grounds for believing above-mentioned exceptions must be brought before the Courts 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 is in the present

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case is unjustified and against the spirit of the Act. It appears that the impugned order dated 27.06.2005 passed by the learned Sessions Judge, Meerut and order dated 28.05.2005 passed by the Juvenile Justice Board are illegal and set aside."

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Learned Magistrate by its order dated 19.05.2020 has rejected the bail of revisionist mentioning that the offence committed by juvenile is heinous and non-bailable in nature.

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In the case of A. Juvenile Vs. State of Orissa, 2009 Cr.L.J., 2002 , it has been held that:

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"(6) A close reading of the aforementioned provision shows that it has been mandated upon the Court to release a person who is apparently a juvenile on bail with or without surety, howsoever heinous the crime may be and whatever the legal or other restrictions containing in the Cr.P.C. or any other law may be. The only restriction is that if there appears reasonable grounds for believing that his release is likely to bring him into association with any moral, physical or psychological danger or his release would defeat the ends of justice, he shall not be so released. "

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The Hon'ble Apex Court in paragraph 2 of the judgment in Kamal Vs. State of Haryana, 2004 (13) SCC 526 has held thus:

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"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

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The Hon'ble Apex Court in paragraph-2 of the judgment in Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, has observed as under:-

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"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year

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the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

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In the instant case, co-accused Vipin Pandey & Dinesh Bind have been granted bail by this Court. It does not appear to bear any justification that the revisionist may be denied his liberty by testing his case with reference to the disentitling condition mentioned in the proviso to sub-section (1) of Section 12 of the Act. In the case of Dharmendra (Juvenile) vs. State of U.P. and others, [2018 (7) ADJ 864], the High Court was pleased to observe as under:

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"10. The matter can be looked at from another vantage. In case the revisionist were an adult and stood charged of the offence that he faces with a weak circumstantial evidence of last seen and confession to the police, in all probability, it would have entitled him to bail pending trial. If on the kind of evidence forthcoming an adult would be entitled to bail, denying bail to a child in conflict with law may be denying the juvenile/ child in conflict with law the equal protection of laws guaranteed under Article 14 of the Constitution.

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11. The rule in Section 12(1) of the Act is in favour of bail always to a juvenile/ child in conflict with law except when the case falls into one or the other categories denial contemplated by the proviso. It is not the rule about bail in Section 12 of the Act that in case a child in conflict with law is brought before the Board or Court, his case is not to be seen on merits prima facie about his complicity at all for the purpose granting him bail; and all that has been done is to see if his case falls is one or the other exceptions, where he can be denied bail. The rule in Section 12 sanctioning bail universally to every child in conflict with law presupposes that there is a prima facie case against him in the assessment of the Board or the Court based on the evidence placed at that stage. It is where a case against a child in conflict with law is prima facie made out that the rule in Section 12(1) of the Act that sanctions bail as a rule, except the three categories contemplated by the proviso comes into play. It is certainly not the rule, and, in the opinion of the Court cannot be so, that a case on materials and evidence collected not being made out against a child at all, his case has to be tested on the three parameters where bail may be denied presuming that a prima facie case is constructively there. Thus, it

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would always have to be seen whether a case prima facie on merits against a child in conflict with law is there on the basis of material produced by the prosecution against him. If it is found that a prima facie case on the basis of material produced by the prosecution is there that would have led to a denial of a bail to an adult offender, in that case also the Rule in Section 12(1) of the Act mandates that bail is to be granted to a juvenile/ child in conflict with law except where his case falls into any of the three disentitling categories contemplated by the proviso .

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12. In the opinion of this Court, therefore, the perception that merits of the case on the basis of prima facie evidence is absolutely irrelevant to a juvenile's bail plea under the Act would not be in conformity with the law. The catena of decisions that speak about merits of the case or the charge against a juvenile being irrelevant, proceed on facts and not an assumption that a case on merits is made out, and, not where the case is not at all made out prima facie. It is not that a child alleged to be in conflict with law against whom there is not iota of evidence to connect him to the crime would still have bail denied to him because his case may be placed in or the other disentitling categories under the proviso to Section 12(1) of the Act. If this kind of a construction were to be adopted it might expose the provisions of Section 12(1) of the Act to challenge on ground of violating the guarantee of equal protection of laws enshrined in Article 14 of the Constitution. It is an enduring principle that a construction that lends a statute to challenge about its constitutionality should be eschewed and one that saves and upholds its vires is to be adopted. In this context the guidance of their Lordships of the Hon'ble Supreme Court in Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 may be referred to:-

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"51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged

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that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of 'litera legis'. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution."

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Thus, it remains largely undisputed that the applicant - was a juvenile on the date of occurrence; does not appear to be prone to criminal proclivity or criminal psychology, in light of the observations of the D.P.O; does not have a criminal history; has been in confinement for an unduly long period of time, in as much as the trial has not concluded within time frame contemplated by the Act. Even otherwise, there does not appear to exist any factor or circumstance mentioned in section 12 of the Act as may disentitle the applicant to grant of bail, at this stage.

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In view of the above, it appears that the findings recorded by the learned Court below are in conflict with the settled principle in law, for the purpose of grant of bail and are erroneous and contrary to the law laid down by this court. Consequently, those orders cannot be sustained. The order dated 08.06.2020 passed by Special Judge(POCSO)-01, Ghazipur, and the dated 19.05.2020 passed by the Juvenile Justice Board, Ghazipur are hereby set aside.

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In view of the observations made above, the present criminal revision is allowed . Let the revisionist/applicant Kanchan Sonkar involved in the aforesaid case crime be released on bail through his natural guardian/ mother, upon his mother furnishing personal bond with two sureties each of like amount, to the satisfaction of the court concerned with the following conditions:

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(i) That the natural guardian will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the father will ensure that the juvenile will not repeat the offence.

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(ii) The revisionist through his natural guardian will report to the District Probation Officer on the first Wednesday of every calendar month commencing with the first Wednesday of February, 2021 and if during any

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calendar month the first Wednesday falls on a holiday, then on the next following working day.

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(iii) 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, Ghazipur on such periodical basis as the Juvenile Justice Board may determine.

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(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or the certified copy issued by the Registry of the High Court, Allahabad.

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(v) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

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(vi) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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However, considering the peculiar facts and circumstances of the case, the court below is directed to make every possible endeavour to conclude the trial of the aforesaid case within a period of four months from today without granting unnecessary adjournments to either of the parties.

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Order Date :- 1.12.2020/SKD

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Kanchan Sonkar (Minor) v. State of U.P. and Another

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Kanchan Sonkar (Minor) v. State of U.P. and Another

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