Allowed

Abhishek Paswan v. State of Up and Another

Allahabad HC21 Feb 2022CRLR/747/2021

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision to release a juvenile revisionist on bail. The court reversed lower orders denying bail, holding that since a similarly circumstanced adult co-accused was granted bail, the juvenile, having served half the mandatory maximum sentence, should also be released subject to conditions.

What did the court decide?

Impugned judgment and orders refusing bail are set aside; revisionist is released on bail with conditions including supervision by a probation officer.

Abhishek Paswan Vs State of Up and Another — Bail and Remand | Allahabad HC (2022)

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Court No. - 93

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Case :- CRIMINAL REVISION No. - 747 of 2021

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Revisionist :- Abhishek Paswan Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ashwani Kumar Pathak,Adya Prasad Tewari,Bhriguram Ji,Naushad Alam,Shashi Shekhar Maurya Counsel for Opposite Party :- G.A.,Arvind Prabodh Dubey

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Hon'ble Shamim Ahmed,J.

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This revision is directed against the judgment and order dated 22.1.2021 passed by Additional Sessions Judge/Special Judge POCSO Act, Court No.1, Gorakhpur dismissing Criminal Appeal No.108 of 2020 (Abhishek Paswan versus State of UP) filed under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ‘the Act’) and affirming the order dated 8.12.2020 passed by Juvenile Justice Board, Gorakhpur refusing the bail plea to the revisionist in Case Crime No.572 of 2020 under Section 147, 148, 323, 325, 504, 506, 308, 302/34 IPC P.S. Jhagha District Gorakhpur.

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Heard Sri Adya Prasad Tewari, learned counsel for the revisionist as well as learned A.G.A. for the State and perused the record.

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The prosecution case, as per the version of the FIR, is that on 26.8.2020 at around 7 a.m. in the morning Rambhu Paswan, Shambhu Paswan and Angoor Paswan, Sandeep Paswan, Andeep Paswan and Vishal Paswan abused the informant and beaten him up with kicks, fists, lathi and danda on account of old enmity. When the son of the informant namely Anirudh Paswan, Ram Parojan and Babloo tried to intervene, he was also beaten up by them, due to which he sustained multiple injuries.

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Learned counsel for the revisionist submits that the revisionist is innocent and he has been falsely implicated in the present case. He further submits that the revisionist is not

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named in the FIR and his name has surfaced in the statement of the complainant under Section 161 CrPC. He next submits that the revisionist has no previous criminal history as mentioned in para 18 of the affidavit filed in support of the present revision.

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Learned counsel for the revisionist further submits that the revisionist is juvenile and there is no apprehension of reasoned ground for believing that the release of the revisionist is likely to bring him in association with any known criminals or expose him to mental, physical or psychological danger or his release would defeat the ends of justice. He further submits that except this the revisionist has no previous criminal history. The father of the revisionist is giving his undertaking that after release of the revisionist on bail, he will keep him under his custody and look after him properly. Further, the revisionist undertakes that he will not tamper the evidence and he will always cooperate the trial proceedings. There was no report regarding any previous antecedents of family or background of the revisionist. There is no chance of revisionist’s re-indulgence to bring him into association with known criminals.

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Learned counsel for the revisionist further submits that it is not in dispute that the revisionist is a juvenile as he has already been declared juvenile by Juvenile Justice Board, Gorakhpur vide order dated 5.11.2020. The revisionist was a juvenile aged 17 years, 9 months an 6 days on the date of occurrence. He is in jail since 14.9.2020 in connection with the present crime and has completed more than half of the sentence out of the maximum three years institutional incarceration permissible for a juvenile, under Section 18(1)(g) of the Act. It is submitted with much emphasis that co-accused Deepak Prajapati, who is similarly circumstanced as the revisionist, has been admitted to bail by this Court vide order dated 27.11.2020 passed in Criminal Appeal No.85 of 2020. It is argued that the revisionist being a minor, cannot be held in institutional incarceration any further once co-accused, similarly circumstanced and also minor, has been admitted to bail. Further, another co-accused Vishal who is named in the FIR was granted bail by this Court vide order dated

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24.11.2020 in Criminal Appeal No.89 of 2020. Other co-accused named in the FIR namely Rambhu Paswan Angoor Paswan and Sandeep Paswan were also granted bail. Further submission is that the case of the revisionist is not on worse footing than that of the co-accused, therefore on principles of parity also the revisionist be released on bail.

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Learned counsel for the revisionist further submits that thereafter the revisionist applied for bail before the Juvenile Justice Board, Gorakhpur upon which a report from the District Probation Officer was called for. The bail application was rejected vide order dated 8.12.2020, being aggrieved, the revisionist preferred an appeal under Section 101 of the Act, which was also dismissed vide order dated 22.1.2021. Hence the present criminal revision has been filed before this Hon’ble Court mainly on the following amongst other grounds:

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(i) That the bail application of the revisionist was rejected by the court below in a very cursory and arbitrary manner.

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(ii) That the revisionist, who is juvenile, is wholly innocent and has been falsely implicated by the first informant in the present case.

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(iii) That the courts below have not appreciated the report of the District Probation Officer in its right perspective.

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(iv) That the impugned judgment and orders passed by the learned courts below are apparently illegal, contrary to law and based on erroneous assumption of facts and law.

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(v) That there was absolutely no material on record to hold that the release of the Juvenile would likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice, yet the courts below have illegally, arbitrary and on surmises refused the bail of juvenile.

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(vi) That the courts have erred in law in not considering the true import of Section 12 of the Act, 2015 and thus, the impugned

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orders passed by the courts below suffer from manifest error of law apparent on the face of record.

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(vii) That the courts below have acted quite illegally and with material irregularity in not properly considering the case of juvenile in proper and correct perspective which makes the impugned orders passed by the courts below non est and bad in law.

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(viii) That bare perusal of the impugned orders demonstrate that the same have been passed on flimsy grounds which have occasioned gross miscarriage of justice.

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Several other submissions in order to demonstrate the falsity of the allegations made against the revisionist have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the revisionist that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

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Learned counsel for the revisionist has further argued that the revisionist has already undergone half of the imprisonment/institutional incarceration and has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

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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

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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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Learned counsel for the revisionist has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment 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 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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Despite service of notice upon opposite party no.2, no one has appeared on his behalf nor any counter affidavit has been filed.

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Learned AGA has opposed the revisionist's case with the submission that the release of the revisionist on bail would bring him into association of some known criminals, besides, exposing him to moral, physical and psychological danger. It is submitted that his release would defeat the ends of justice, considering that he is involved in a heinous offence.

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This Court has carefully considered the rival submissions of the parties and perused the impugned orders. The juvenile is clearly below 18 years of age and does not fall into that special category of a juvenile between the age of 16 and 18 years whose case may be viewed differently, in case, they are found to be of a mature mind and persons well understanding the consequences of their actions. The provisions relating to bail for

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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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This Court has, in particular, looked into the role of the various accused and finds that the aforesaid co-accused who has already been granted bail by this Court, and the revisionist have identical role. Once the aforesaid co-accused has been admitted to bail, who is adult, there seems no justification to additionally test the case of the revisionist with reference to the requirements of the proviso to sub Section (1) of Section 12 of the Act. In this connection, I had occasion to consider the question about the right of a juvenile to be released on bail where a similarly circumstanced adult offender had been extended that liberty. 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 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

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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 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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This Court in the case of Shiv Kumar alias Sadhu Vs. State of U.P. 2010 (68) ACC 616(LB) was pleased to observe that the gravity of the offence is not relevant consideration for refusing grant of bail to the juvenile.

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In the present case there appears to be no distinguishing feature from the case of the said co-accused, who is adult offender circumstanced identically as the revisionist. There is no justification to hold the revisionist not entitled to the liberty of bail. It is also taken note of by this Court that the revisionist has by now done more than half of institutional incarceration. The maximum period for which a juvenile can be incarcerated in whatever form of detention, is three years, going by the provisions of Section 18(1)(g) of the Act. Both the courts below have passed the impugned judgment and orders in cursory manner without placing due reliance on the report submitted by the District Probation Officer as well as facts and circumstances of the case. This Court, thus, finds that the impugned orders cannot be sustained and are liable to be set aside and reversed.

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After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts

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and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and in view of the larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh vs. State of UP and another, (2018) 3 SCC 22 and the view taken by the Hon’ble Court in the cases of Kamal Vs. State of Haryana (supra), Takht Singh Vs. State of Madhya Pradesh (supra), Dharmendra (Juvenile) vs. State of U.P. and others (supra), Japani Sahoo vs. Chandra Sekhar Mohanty (supra) and Shiv Kumar alias Sadhu Vs. State of U.P. (supra), this Court is of the view that the present criminal revision may be allowed and the revisionist may be released on bail.

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In the result, this revision succeeds and is allowed. The impugned judgment and order dated 22.1.2021 passed by Additional Sessions Judge/Special Judge POCSO Act, Court No.1, Gorakhpur passed in Criminal Appeal No.108 of 2020 and the order dated 8.12.2020 passed by Juvenile Justice Board, Gorakhpur refusing the bail plea to the revisionist in Case Crime No.572 of 2020 under Section 147, 148, 323, 325, 504, 506, 308, 302/34 IPC P.S. Jhagha District Gorakhpur, are hereby set aside and reversed . The bail application of the revisionist stands allowed.

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Let the revisionist, Abhishek Paswan through his natural guardian Munna Paswan be released on bail in Case Crime No. 572 of 2020 under Section 147, 148, 323, 325, 504, 506, 308, 302/34 IPC P.S. Jhagha District Gorakhpur upon his natural guardian furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Gorakhpur subject to the following conditions:

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(i) That the natural guardian of the revisionist will furnish an undertaking that upon release on bail the juvenile will not be

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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 natural guardian will ensure that the juvenile will not repeat the offence.

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(ii) The revisionist and his natural guardian will report to the District Probation Officer on the first Wednesday of every calendar month commencing with the first Wednesday of April, 2022 and if during any 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 concerned 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 :- 21.2.2022

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Digitally signed by SALIM PRAVEJ Date: 2022.03.02 17:47:30 IST Reason: Location: High Court of Judicature at Allahabad

Abhishek Paswan v. State of Up and Another

Case brief

What is this about?

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Abhishek Paswan v. State of Up and Another

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