Dismissed

Xx ( Minor ) v. State of U.P. and Another

Allahabad HC24 Nov 2022CRLR/1000/2022

Case brief

AI extract

What is this about?

High Court dismissed a criminal revision challenging the Juvenile Justice Board and Sessions Judge's orders refusing bail to a 16-year-old juvenile accused of throwing an iron rod at an infant causing death. The Court held that the gravity of the offence, nature of crime, and social investigation report justified detention to ensure her welfare and public sense of justice.

What did the court decide?

Rejected the revision petition and confirmed the order of the Juvenile Justice Board declining bail to the juvenile.

Xx ( Minor ) Vs State of U.P. and Another — Child Custody and Guardianship | Allahabad HC (2022)

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A.F.R.

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Court No. - 91

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Case :- CRIMINAL REVISION No. - 1000 of 2022

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Revisionist :- Xx ( Minor ) Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Imran Ullah,Vineet Vikram Counsel for Opposite Party :- G.A.,Akhilesh Singh

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Hon'ble Mrs. Jyotsna Sharma,J.

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Heard Sri Imran Ullah, learned Senior Counsel for the revisionist, Sri Girish Vishwakarma, Advocate holding brief of Sri Akhilesh Singh, learned counsel for the respondent no.2 and Sri O.P. Mishra, learned A.G.A. for the State.

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2. Perused the record.

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This criminal revision has been filed challenging the order dated 15.12.2021 passed by the Juvenile Justice Board, Allahabad and the order dated 12.01.2022 passed by the learned Sessions Judge, Allahabad in Criminal Appeal No.153 of 2022 by which the order of the Juvenile Justice Board declining bail to the juvenile was affirmed in a matter arising out of Case Crime No.90 of 2021, under sections- 147, 148, 323, 504, 506, 307, 302 I.P.C. , Police Station- Sarai Inayat, DistrictPrayagraj.

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The prosecution case is that on 10.03.2021 Rizwan Ahmad, his wife Sabiha Fatima, his daughter Bushra Fatima and three others came holding iron rods and other weapons and attacked Sappan Devi and her infant daughter in the backdrop of their exerting pressure on the complainant side for giving favourable statements in a criminal case relating to cow slaughter, which was pending against the accused side. All the accused persons named in the F.I.R. attacked the complainant side in which Sappan Devi sustained head injuries, her infant daughter who was lying on a cot was thrown on the ground and was hit by an iron rod on her head and she died before she could be given medical treatment; she sustained fracture in head and could not survive. The F.I.R. of the incident was lodged on the same day within a span of few hours; the medical examination of Sappan Devi showed several lacerated wound on occipital region and was advised X-ray. As per papers on record, Sappan Devi lost consciousness, she had to be admitted and she remained admitted at Shakuntala Multispeciality Hospital as an indoor patient from 11.03.2021 to 17.03.2021. After completion of

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investigation, charge-sheet was submitted under sections 302, 307, 504, 506, 323, 147 and 148 I.P.C.

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It is contended on behalf of the revisionist that there is another side of the story; infact on the basis of application moved under section 156(3) Cr.P.C., an F.I.R. got registered from the side of the revisionist to the effect that the revisionist was intercepted when she was going to her field and was dragged inside a field and was put to sexual assault on 10.03.2021 by Sunil Kushwaha (husband of Sappan Devi) and Raja Kushwaha (devar of Sappan Devi); the F.I.R. being Case Crime No.336 of 2021, under section 450, 376D, 323, 504 I.P.C. and section- ¾ POCSO Act was lodged on 19.09.2021, which also mentioned name of Sappan Devi, who allegedly kept reviling them; the victim (the instant revisionist) in this F.I.R. sustained several injuries; she was medically examined; the real facts were different as evident from this cross F.I.R. lodged by the revisionist/juvenile side; the court besides ignoring the broader principles of law as applicable in the matters of bail to a juvenile and the mandate of Section-12(1) of the Juvenile Justice Act, 2015, ignored other material facts and circumstances of the case; bail has been declined by bringing the case within the proviso to Section-12(1) of the Juvenile Justice Act, 2015 in an arbitrary manner; all the other adult members of the family against whom the complainant threw allegations of attacking Sappan Devi and her infant child have been granted bail; in this view of the matter, a girl about 16 years of age should not be detained just because she is minor. It is also said that the comments and suggestions of District Probation Officer in social investigation report do not match the inquiry done by him, hence it cannot be relied upon and cannot be interpreted in such a manner so as to decline bail to her.

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These facts are not disputed that the juvenile was found to be aged about 16 years and 3 months on the date of occurrence and that she is detained in an observation/juvenile protection home since more than a year now and all the adult members of her family who were allegedly involved in this case, have been granted bail on 16.08.2022 in Criminal Misc. Bail Application No.26962 of 2021 connected with 26219 of 2021 and 28338 of 2021.

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Sri Girish Vishwakarma, Advocate holding brief of Sri Akhilesh Singh, learned counsel for the respondent no.2 and Sri O.P. Mishra, learned A.G.A. for the State forcefully opposed this criminal revision on several grounds which shall be referred at appropriate places.

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In Idrish (Minor) vs. State of U.P. and Others, 2018 (3) JIC

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287 , it was held as below:-

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"No doubt that the seriousness of the offence is a factor to be taken into consideration even in the case of a juvenile, and, that brings in some prima facie proof appearing against the juvenile of the commission of the offence also, which otherwise is not the rule to grant bail to a juvenile. But to judge that one may have to see what evidence appears against the juvenile. The jurisdiction to consider the existence of a prima facie case would somewhere come from the last ground in the proviso to Section 12(1) of the Act, 2015, on which bail may be denied, that is, if it is found that release of the child would defeat the ends of justice. Perhaps, virtually, and, in fact, the factor that would play the most important role in judging the ground based on "the ends of justice being defeated" would refer somewhat to the merits of the case. Else, the merits of the case are irrelevant while judging the bail plea of a juvenile."

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This Court in Criminal Revision No.1195 of 2022 ('X' Minor vs. State of U.P.) decided on 12.10.2022 took a view that the gravity of the offence as well as the merits of the matter may be of ample significance when the Court has to form an opinion whether case is one falling within the exceptions as envisaged under the proviso to Section- 12(1) of the Juvenile Justice Act, 2015.

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In para-8 of the above judgement, it was held as below:-

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8. Ordinarily, the merits of the matter may not be unduly important where the Courts are inclined to give benefit of bail as envisaged in Section 12(1) of the Juvenile Justice Act. This is not to say that once a person is found a juvenile, it is mandatory to grant him bail and that gravity and the merits of matter shall have no relevance. In my view, the nature of the crime and factors connected thereto never went into oblivion and this particular aspect has been usefully illuminated by the Courts time and again. I am of the view that in fact nature of the offence and merits of the matter may assume ample significance when the Court has to form an opinion about the ends of justice. It may be noted that the phrase 'ends of justice', cannot exist in a vacuum. Unarguably and undeniably, the Courts are under obligation to address the concerns of both the sides and strike a delicate balance between competing and often conflicting demands of justice of the two sides. When viewing the matters of bail from this particular angle of deciphering the ends of justice, not only the nature of crime, but also the manner of commission thereof, methodology applied, the mental state, the extent of involvement, the evidence available shall be the factors to reckon with.

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In para-11 and para-15 of the same judgement, it was observed that:-

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11. The vastness of the ends of justice may pull within its sphere facts and circumstances, which may otherwise seem quite irrelevant and not so important at first glance for the purpose of the applicability of proviso to Section 12 of the Juvenile Justice Act. It may be reiterated that the

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provisions of the Juvenile Justice Act though largely enacted with a reformative theories in mind, do not obliterate streaks of retributive justice in them and this aspect of the scheme of the Act cannot be glossed over. In the end, the Court may have to depend on its own judicial discretion and objective assessment of the things while still going strictly according to the provisions of law as to bail and also keeping in mind that the Act has intertwined approach reformatory as well as retributive. At this stage, it may be noted that the interest of the child finds mention under the head 'Principle of best interest' as described in Chapter II, Section 3 (iv) of the Juvenile Justice Act, 2015. And this principle also underlines all the matters to be dealt with under the provisions of the Act including matters of bail. And undeniably and unarguably keeping in mind the reformative goals of the Act, the bail can definitely be denied, where there are circumstances to arrive at a conclusion that bail should be declined because of the fact that juvenile shall not get such conducive atmosphere as may be needed for his own welfare and betterment, if released to his family or parents.

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15. This thing should be kept in mind that aim and object of the Act is to ensure proper care, protection, development treatment and social reintegration of child, in difficult circumstances by adopting child friendly procedures. Under the 'Act' the moment child alleged to be in conflict with law is apprehended (not arrested), he is to be placed under the charge of the child welfare police officer (not merely a police officer) and is not be lodged in police lockup or jail and if required may be sent to 'observation home'.

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Further, it may very importantly be noticed that even while the Board chooses to exercise its power of bail under Section 12(1) of the Juvenile Justice Act, 2015, it may place such child under the supervision of probation officer and may not release him on surety bonds. That is even while releasing him, the juvenile may not be granted full liberty of bail instead he may be kept under supervision of District Probation Officer though not in observation home. Provisions of bail under the Juvenile Justice Act, 2015 are fundamentally different from those under Cr.P.C. In my view, in certain circumstances, the protective custody in observation home may be better than any other custody or release.

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I went through the order of the Juvenile Justice Board. It appears that the Juvenile Justice Board declined bail to the juvenile taking into account the seriousness of the offence and the fact that her release may cause anguish and anger in the public at large and that the social investigation report contained certain negative remarks against her; on the basis of that the Juvenile Justice Board came to the conclusion that it will not at all be appropriate to release her on bail as there is a fair possibility of being caused physical, moral or psychological danger to her. I also went through the order of the appellate court passed in Criminal Appeal No.157 of 2022. The appellate court concurred with the inferences drawn by the Juvenile

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Justice Board; besides taking note of other facts the appellate court took notice of the fact that in preliminary assessment report, conducted under the provisions of Section-15 of the Juvenile Justice Act, 2015, she was found mature enough to understand the consequences of her act and further that there has been a direct allegation against her that she was the one who attacked the infant of merely four months with an iron rod causing fatal injury to him; the appellate court was of the opinion that it was a planned attack in the background of a dispute in which the accused side have been unduly pressurizing the complainant side to favour them in a criminal case; this background of the case adds another flavour to the main incident in which a child was killed and her/his mother was injured in such a manner that she not only lost her consciousness but had to remain admitted to a hospital for atleast a week for the treatment.

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The question arises is how far the facts and circumstances mentioned/observed by the Juvenile Justice Board/Appellate Court may justify refusal of bail. In other words, whether the aforesaid facts may form a edifice to bring this case within the restrictive confines of III part of proviso to Section- 12(1) of the Juvenile Justice Act, 2015 for declining bail? Yet in other words- whether and if yes, to what extent the nature of the offence and merits of the case may be of utility in matters of bail to juvenile considering settled legal position that ordinarily the nature of offence and the merits of a case are not to be seen. Definitely, no separate inquiry is contemplated by the legislature for the purpose of application of this part of law, i.e., III part of proviso to Section-12(1) of the Juvenile Justice Act, 2015. The Court is not supposed to look for any material outside and is to depend obviously on prosecution paper and social investigation report as ordinarily no other material is available. This takes us back to the contours of the case (as reflected from prosecution paper) and individual circumstances of juvenile as reflected from social investigation report. And therefore, we traverse back to reach from where we started. And cannot but agree with the opinion of the court that nature of the case, and the merits thereof remain seminal and are in noway inconsequential, unmeaning or insignificant.

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This is forcefully contended on behalf of revisionist that there is no justification to keep her confined in detention home where all other have been granted bail. This argument is equally vehemently opposed by the respondents on two grounds; firstly , that the parameters for granting of bail to a juvenile are fundamentally different from those applicable in matters of bail to an adult under the provisions of Cr.P.C.; secondly , the benefit (if any) can be drawn when the facts and circumstances are

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more or less at par with the case of others. In this context, it is noticeable that a juvenile of merely 16 years of age chose to have an upper hand in whole of the incident, in contrast with the role which was alleged to be played by other members of the family; this case is not one where younger member of the family just acted in conferment with the acts done by her parents; she took the lead and was the main accused as far as section 302 I.P.C. is concerned. In my view, there is substance in the above argument of the respondents which gives another dimension to the whole episode.

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Another fact, which has been pointed out on behalf of the respondents is that this revision for release from detention has been filed on behalf of her maternal uncle- Mohd. Wais, who admittedly resides in a different village. The appellate court took notice of the fact that the social investigation report did not indicate how a girl of youthful age can properly be taken care of by her maternal uncle. The Court was unable to take decision on this count as details of family members of her maternal uncle were not available in the social investigation report.

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As mentioned earlier, the facts of the case suggest that the incident did not occur on a spur of moment. Instead a tussle between the two sides was going on with regard to pressure being built up by Rizwan Ahmad for giving a statement in their favour. It is mentioned in the F.I.R. that in the above background, at the time when other members of Sappan Devi's family had gone to city, the accused persons found an opportunity and attacked her. There is a clear allegation that Sappan Devi was beaten up in a cruel manner and that her four month old daughter, who was lying on a cot in her house was thrown on the ground and hit by the present juvenile-revisionist on her head by iron rod. The shock and trauma caused to her mother can easily be understood. It is suggested that in case the revisionist is released, the bitterness which has been generated by the incident may put her in physical danger as well. At this juncture, the social investigation report may also be referred. In the social investigation report, the people of the locality expressed a negative opinion about her. In para-35 of the social investigation report, the District Probation Officer has mentioned that the juvenile showed criminal tendencies and that she needed intense counselling and strict supervision to inculcate some positive traits in her. The option available were firstly to release her into family custody; secondly to keep her detained in protective custody. Obviously, she cannot be provided the kind of counselling by a professional experts outside the juvenile home, nor her conduct can be effectively supervised. She needs to be taught the respect for human life. She needs to be kept away from the locality where people do

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not have good opinion about her, for her own welfare, for her own psychological health and for pre-empting any subtle effort to remind her of her own past conduct. In this case, institutional custody seems better than family custody.

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In my view, there is no ground to interfere in the impugned orders. Hence, the revision is liable to be dismissed.

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The criminal revision is accordingly dismissed .

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The court concerned/Board is directed to expedite the hearing and conclude the same at the earliest without getting influenced by any of the observations made in this order.

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Copy of the order be certified to the court concerned immediately.

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Order Date :- 24.11.2022 Saif

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Digitally signed by SHAIKH SAIF ABDIN Date: 2022.12.06 16:45:51 IST Reason: Location: High Court of Judicature at Allahabad

Xx ( Minor ) v. State of U.P. and Another

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Xx ( Minor ) v. State of U.P. and Another

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