Allowed

X Minor v. State of U.P. and Another

Allahabad HC13 Dec 2022CRLR/390/2022

Case brief

AI extract

What is this about?

This criminal revision by a minor contesting the rejection of his bail petition regarding a murder case under IPC 302 and SC/ST (POA) Act was allowed. The Allahabad High Court set aside the appellate and JJ Board orders, noting the lack of substantive evidence and discharge of the juvenile. Bail was granted subject to conditions including studying and reporting to the Probation Officer.

What did the court decide?

The impugned orders declining bail were set aside and the revisionist (minor) was released on bail with personal bond, two solvent sureties, and specific conditions regarding social supervision, study

X Minor Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2022)

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Court No. - 91

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Case :- CRIMINAL REVISION No. - 390 of 2022

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Revisionist :- X Minor Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Uma Nath Pandey,Sunil Kumar Counsel for Opposite Party :- G.A.,Ashish Kumar Pandey

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Hon'ble Mrs. Jyotsna Sharma,J.

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Heard Sri Sunil Kumar, learned counsel for the revisionist, Sri Ashish Kumar Pandey, learned counsel for opposite party no. 2 and Sri O.P.Mirshra, learned AGA for the State and perused the record.

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This criminal revision has been filed for setting aside the judgment and order dated 12.10.2021 passed by Principal Magistrate Juvenile Justice Board, Ghaziabad and order dated 15.11.2021 passed by Special Judge (POCSO Act)/ Additional Sessions Judge, Ghaziabad in Criminal Appeal No.98 of 2021 affirming the order of J. J. Board declining bail to the juvenile in case crime no.447 of 2021, under Sections 302 and 201 I.P.C. and 3(2) 5 of the Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, P.S.Teelamodh, District Ghaziabad.

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As per the prosecution case, an F.I.R. was lodged by father of the deceased stating that his son Bharat Bhushan alias Shaiki was handed over to Saurabh Tyagi, Director of Nasha Mukti Kendra Snehi Foundation, Defence Colony, Bhopura, Ghaziabad, (NGO) on 18.07.2021. A few days thereafter on 23.07.2021 father of the deceased went to the NGO, Defence Colony, Bhopura, Ghaziabad to visit his son. He came to know from a person named Rahul that his son had gone somewhere else without informing any person. The informant along with some of his relatives went on search for him. Not finding about his whereabouts, he lodged a missing report on 28.07.2021. Meanwhile the person Rahul confidentially informed him that his son was beaten by co-accused Saurabh Tyagi and the present juvenile in the night of 21.07.2021 and thereafter they carried him in a vehicle. Since then neither the deceased nor Saurabh Tyagi returned to that Nasha Mukti Kendra, Ghaziabad. It is alleged in the F.I.R. that one of the acquaintance of the informant namely Rajkumar informed him that he witnessed that Saurabh Tyagi and the present juvenile were taking away his son to an unknown place and at that time he was soaked up in blood. On the basis of this F.I.R., case crime no.0447 of 2021, under Sections 302 and 201 I.P.C. was registered. During investigation on the pointing out of co-accused Saurabh Tyagi some blood stained garment, a spade and pieces of deadbody of the deceased were recovered. After completing investigation a chargesheet was submitted against Saurabh Tyagi and the present juvenile.

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On behalf of the minor it is alleged that besides ignoring broader principles of law as applicable in the matters of bail to the juvenile and mandate of Section 12 (1) of the J.J.Act, 2015, the merits of the case have altogether been ignored by the courts below. This fact was not considered that there has not been any credible evidence showing his involvement in the crime. Only evidence, which has come, is naming the person in the F.I.R. on the basis of information received from two persons namely Rahul and Rajkumar. No statements under Section 161 Cr.P.C. of the

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aforesaid witnesses were recorded by the Investigating Officer.

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It is further argued that there is nothing in the social investigation report conducted by the D.P.O. so as to reveal any negative or adverse fact against him so as to bring the case within four corners of proviso to Section 12 (1) of the J.J.Act, 2015.

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It has been argued on behalf of the informant that in fact the blood stained danda was recovered on the pointing out of the present juvenile. It has further been argued on behalf of the prosecution that in the confessional statement of one of the accused namely Himanshu, the revisionist has been imputed of allegation of having hand in disposal of the deadbody. To counter this argument it is stated on behalf of revisionist that co-accused Himanshu @ Hannu has been granted bail by another Bench of this Court in Criminal Appeal No.4706 of 2021 vide order dated 07.12.2021.

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I went through the orders of J.J.Board as well as the appellate court. In the concluding part of the order of the J.J.Board it appears that bail has been declined on the basis of nature of the allegations only and it has been concluded that the matter comes within the restrictive confines of proviso to Section 12(1) of the J.J.Act, 2015. Similarly the appellate court, after going through the nature of the evidence which has been collected during the investigation, has relied on the social investigation report and thereafter concurred with the views of the J.J.Board.

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I minutely perused both the orders. In my view, there has not been any substantive material before the courts below to conclude that his release will defeat ends of justice or shall bring him in association with any known criminal and shall expose him to any moral, physical or psychological danger.

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In my view, before provision of Section 12(1) or its proviso are made applicable, the procecution is burdened with a responsibility to satisfy the court as to prima facie involvement of the juvenile in the case particularly when the nature of the case is heinous. No motive of any kind has been offerred by the prosecution. As far as the evidence is concerned, the only piece of evidences, which have been collected, is relating to naming of the accused in the F.I.R. on the basis of some information given by two witnesses who were never examined by the I.O. This fact is not disputed that the juvenile is in detention since 15.08.2021 i.e. for more than one year and three months now. Social investigation report has mentioned that his studies have been abruptly disrupted because of his detention in this case.

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In view of the above, especially, in view of the period of incarceration already undergone, the revision is allowed. The judgment and order dated 12.10.2021 passed by Principal Magistrate Juvenile Justice Board, Ghaziabad and order dated 15.11.2021 passed by Special Judge (POCSO Act)/ Additional Sessions Judge, Ghaziabad are hereby set aside.

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Let the revisionist, minor "X' through his natural guardian Gaurav Tyagi, resident of D-1/341, Gali No.4, Ashok Nagar, Shahadara Delhi, be released on bail in Case Crime No.447 of 2021, under Sections 302 and 201 I.P.C. and 3(2) 5 of the Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, P.S.Teelamodh, District Ghaziabad

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upon his guardian Gaurav Tyagi furnishing a personal bond with two solvent sureties of his relatives, each in the like amount to the satisfaction of the Juvenile Justice Board, Ghaziabad subject to the following conditions:

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(i) the natural guardian Gaurav Tyagi 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 guardian will ensure that the juvenile will not indulge in any criminal activity;

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(ii) natural guardian will further furnish an undertaking to the effect that the juvenile will pursue his study at the appropriate level which he would be encouraged to do.

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(iii) juvenile accompanied by his natural guardian, will report to the Probation Officer on the first working day of every calendar month commencing with the month of January, 2023. The D.P.O. shall maintain a diary recording their attendance.

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(iv) The District Probation Officer will keep strict vigil on the activities of the juvenile and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Ghazaibad.

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It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court/J.J.Board shall be absolutely free to arrive at its independent conclusions on the basis of evidence led, uninfluenced by any finding or observation whatsoever in this order.

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Order Date :- 13.12.2022

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Asha

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Digitally signed by ASHA Date: 2022.12.14 16:34:10 IST Reason: Location: High Court of Judicature at Allahabad

X Minor v. State of U.P. and Another

Case brief

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X Minor v. State of U.P. and Another

Case brief

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