Allowed

Anuj Thru. Her Mother Manisha v. State of U.P. Thru. Prin. Secy. Home, Lko. and Another

Allahabad HC17 Apr 2023/452/2022

Case brief

AI extract

What is this about?

The High Court, in a Criminal Revision, set aside orders refusing bail to an adult revisionist misidentified as a juvenile. Criticizing lower courts for rejecting bail solely due to the offence's gravity, the Court held that bail under the JJ Act, 2015 must be declined only on statutory grounds like association with criminals, with no objective evidence found in this case.

What did the court decide?

Impugned judgments and orders refusing bail were set aside and reversed; bail application allowed with bond and sureties.

Anuj Thru. Her Mother Manisha Vs State of… — Child Custody and Guardianship | Allahabad HC (2023)

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Court No. - 15

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Case :- CRIMINAL REVISION No. - 452 of 2022

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Revisionist :- Anuj Thru. Her Mother Manisha Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another Counsel for Revisionist :- Neetu Patel,Alok Kumar Srivastava,Sunil Mohan Counsel for Opposite Party :- G.A.

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Hon'ble Ajai Kumar Srivastava-I,J.

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1. Heard Sri Alok Srivastava, learned counsel for the revisionist and Sri Balram Singh, learned A.G.A. for the State and perused the record.

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2. The instant Criminal Revision is preferred against the impugned judgment and order dated 25.04.2022 passed by learned Additional Sessions Judge, Court No. Special Judge POCSO Act, Court No.14, Hardoi passed in Criminal Appeal No.13 of 2022, arising out of Case Crime No.0414 of 2021, under Sections 302 & 201 I.P.C. and Section 7 Criminal Law Amendment Act, Police StationLonar, District- Hardoi as well as order dated 17.02.2022 passed by Juvenile Justice Board, Hardoi arising out of Case Crime No.0414 of 2021, under Sections 302 & 201 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station- Lonar, District- Hardoi.

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3. It has been submitted by learned counsel for the revisionist that the innocent revisionist has falsely been implicated in the present case. The revisionist hails from a family who have no criminal history. His further submission is that both the courts below have been

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swayed by the alleged seriousness of the offence, whereas for the purposes of enlarging the revisionist on bail under proviso to Section 12(1) of The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as Act of 2015) is significant, which has been overlooked by the court below, therefore, impugned judgment and orders are not sustainable in the eyes of law. He has also submitted that no adverse report against the present revisionist has been given by the District Probation Officer concerned and whatever has been mentioned in the social investigation report against the present revisionist, is not based on any cogent material. He has further submitted that revisionist is confined in the Children Reformatory Home since 10.11.2021 in connection with the present crime. Only three years' institutional incarceration is permissible for a juvenile, under Section 18(1)(g) Act of 2015.

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4. Per contra, learned A.G.A. submits that the revisionist, though a juvenile in conflict with law, is a budding criminal. He is involved in an offence which has serious adverse societal impact. His further submission is that upon his release, there is every likelihood that he will come into association with known criminals, that would lead to the revisionist facing physical, psychological and moral danger. However, he could not dispute the fact that the there is nothing on record to suggest that the case of the revisionist falls into any of the three dis-entitling reasons postulated under the proviso to Section 12(1) of the Act of 2015.

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5. This Court has keenly considered the rival submissions and perused the records.

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6. The revisionist was declared a juvenile by the Juvenile Justice Board in the aforesaid case. The revisionist is aged more than sixteen years on the date of occurrence and this fact remains undisputed.

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7. It is trite that the use of the word 'shall' in subsection (1) of Section 12 of the Act of 2015 is of great significance. The use of the word 'shall' raises a presumption that the particular provision is imperative, but this prima facie inference may be rebutted by other considerations such as the object and scope of the enactment and the consequences flowing from such construction. The word 'shall' has been construed as ordinarily mandatory, but is sometimes not so interpreted if the context or intention otherwise demands.

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8. Provisions of Section 12 of the Act of 2015 manifest that ordinarily, the Juvenile Justice Board is under obligation to release the juvenile on bail with or without surety. The juvenile shall not be released in certain circumstances as the latter part of the section also uses the word 'shall' imposing certain mandatory conditions prohibiting the release of the juvenile by the Juvenile Justice Board. If there are any reasonable grounds for believing; (a) that the release is likely to bring him into association with any known criminal; (b) that release is likely to expose him to moral, physical, or psychological danger and (c) that release of the juvenile is in conflict with law and would defeat the ends of justice.

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9. From a bare reading of the provisions of Section 12 of the Act of 2015, it appears that the intention of the legislature is to grant bail to the juvenile irrespective of the nature or gravity of the offence alleged to have been committed by the juvenile, and bail can be declined only in such cases where there are reasonable grounds to believe that the release is likely to bring the juvenile into association of any known criminal or expose him to moral, physical, or psychological danger, or that his release would defeat the ends of justice. The gravity of the offence is not a relevant consideration for declining the bail to the juvenile. A juvenile can be denied the concession of bail if any of the three contingencies specified under Section 12(1) of the Act of 2015 is available. A similar view has been taken in cases of Manoj Singh v. State of Rajasthan¹ , Lal Chand v. State of Rajasthan² , Prakash v. State of Rajasthan³ , Udaibhan Singh @ Bablu Singh v. State of Rajasthan⁴ , Shiv Kumar @ Sadhu v. State of U.P.⁵ , Maroof v. State of U.P.⁶ .

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10. The term 'known criminal' has not been defined in "the Juvenile Justice Act" or Rules framed thereunder. It is a well-settled rule of interpretation that in the absence of any statutory definition of any term used in any particular statute the same must be assigned meaning as in commonly understood in the context of such statute as

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1 2004 (2) RCC 995

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2 2006 (1) RCC 167

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3 2006 (2) RCR (Cri.) 530

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4 2005 (4) Crimes 649

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5 2010 (68) ACC 616 (LB)

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6 2015 (6) ADJ 203

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held by Supreme Court in Appasaheb v. State of Maharashtra⁷ , in para 11 as under:

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"11......It is well settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understand to have a particular meaning in it, then the words are to be construed as having that particular meaning. [See: Union of India v. Garware Nylons Ltd., (1996) 10 SCC 413: AIR 1996 SC 3509 and Chemical and Fibers of India v. Union of India, (1997) 2 SCC 664: AIR 1997 SC 558]..."

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11. In Nand Kishore (in JC) v. State⁸ , Delhi High Court, while considering the first condition of proviso of Section 12 of the Act of 2015, observed that "as regards the first exception, before it can be invoked to deny bail to a juvenile there must be a reasonable ground for believing that his release is likely to bring him into association with any known criminal. The expression known criminal is not without significance when the liberty of a juvenile is sought to be curtailed by employing the exception, the exception must be construed strictly. Therefore, before this exception is invoked, the prosecution must identify the 'known criminal', and then the court must have reasonable grounds to believe that the juvenile if released would associate with this 'known criminal'. It cannot be generally observed that the release of the juvenile would bring him into association with criminals without

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7 (2007) 9 SCC 721

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8 (2006) 4 RCR (Cri.) 754

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identifying the criminals and without returning a prima facie finding with regard to the nexus between the juvenile and such criminal."

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12. Similar view has been taken in Manmohan Singh

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v. State of Punjab⁹ , wherein, it was observed as under:

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"7....The reasonable grounds for believing that his release is likely to bring 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, should be based upon some material/evidence available on the record. It is not a matter of subjective satisfaction but while declining bail to the juvenile on the said ground, there must be objective assessment of the reasonable grounds that the release of the juvenile is likely to bring him in 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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8. In Sanjay Kumar's case (supra) it has been held by the Allahabad High Court that every juvenile whatever offence he is charged with, shall be released on bail but he may, however, be refused bail if there appears reasonable ground for believing that the release is likely to bring him into association with the any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice and that the existence of such ground should not be mere guess work of court but it should be substantiated by some evidence on record."

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9 (2004) 136 P & H 497

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13. Section 26 of the IPC defines the expression "Reason to believe". It means a person is said to have a "reason to believe" a thing, if he has sufficient cause to believe such thing but not otherwise. In view of Section 26 of I.P.C., if there is sufficient cause to believe, reason to believe exists. The expression "reason to believe" excludes a mere suspicion. The word 'believe' is very much a stronger word than 'suspect'.

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14. Section 13(1)(ii) of the Act of 2015 provides that the Probation Officer shall submit a social investigation report within two weeks from when a child is apprehended or brought to the Board, containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making the inquiry. The "social investigation report" which has been defined in Rule 2(xvii) of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, means the report of a child containing detailed information pertaining to the circumstances of the child, the situation of the child on economic, social, psycho-social and other relevant factors, and the recommendation thereon. This report becomes important for the inquiry to be done by the Board while passing such orders in relation to such a child as it deems fit under Sections 17 and 18 of this Act. The purpose behind this provision is to enable the Juvenile Justice Board to get a glimpse of the social circumstances of the child before any order regarding bail or of any other nature is passed.

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15. 'Form-6' of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, contains a detailed proforma of the social investigation report. The report has three segments; the first segment requires the Probation Officer to give the data or information regarding the close relatives in the family, delinquency records of the family, social and economic status, ethical code of the family, attitude towards religion, the relationship amongst the family members, the relationship with the parents, living conditions, etc. Thereafter, the report requires the Probation Officer to provide the child's history regarding his mental condition, physical condition, habits, interests, personality traits, neighbourhood, neighbours' report, and school, employment, if any, friends, the child being subject to any form of abuse, circumstances of apprehension of the child, mental condition of the child. The most important part of the report is the third part i.e. the result of inquiry where the Probation Officer is required to inform the Board about the emotional factors, physical condition, intelligence, social and economic factors, suggestive cause of the problems, analysis of the case including reasons/contributing factors for the offence, opinion of experts consulted and recommendation regarding rehabilitation by the Probation Officer/Child Welfare Officer. It is incumbent upon the Juvenile Justice Board to take into consideration the social investigation report and make an objective assessment on the reasonable grounds for rejecting the bail application of the juvenile.

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16. Section 3 of the Act of 2015 provides that the Central Government, the State Government, the Board, and other agencies, as the case may be, while implementing the provisions of the Act, shall be guided by the fundamental principles of care and protection of children. Some of the principles are as under:

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"(i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala-fide or criminal intent up to the age of eighteen years.

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(ii) Principle of dignity and worth: All human being shall be treated with equal dignity and rights.

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(iii) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.

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(iv) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.

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(v) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the process pertaining to a child.

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(vi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and through out the judicial process."

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17. From the perusal of the F.I.R. and the overall facts and circumstances of the present case, it is revealed that the revisionist had no criminal history prior to the present case. His family members too have no criminal history.

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There is nothing on record to suggest that the case of the revisionist falls into any of the three dis-entitling reasons postulated under the proviso to Section 12(1) of the Act of 2015.

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18. A perusal of the impugned orders passed by the Juvenile Justice Board and court below show that the both courts below have been swayed by the fact that the nature of offence is heinous and therefore, they have concluded that the case of revisionist falls in the three dis-entitling exceptions postulated under under the proviso to Section 12(1) of the Act of 2015. This Court in the case of Shiv Kumar alias Sadhu vs. State of U.P.¹⁰ has held that the gravity of the offence is not relevant consideration for refusing grant of bail to the juvenile. There is nothing on record which substantiates the aforesaid findings/conclusion of the courts below. The aforesaid finding of the courts below is thus, based on surmises and conjunctures only. Therefore, the impugned orders 25.04.2022 & 17.02.2022 deserve to be set aside.

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19. In view of the overall facts and circumstances of the case and the mandate of the proviso to Section 12(1) of the Act of 2015, this Court is of the considered opinion that there is nothing on record on the basis of which it can be inferred that the revisionist's case is one that falls into any of three exceptions postulated under the proviso to Section 12(1) of the Act of 2015. Therefore, while passing the impugned orders dated 25.04.2022 & 17.02.2022, the Courts below have acted with material irregularity.

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10 2010 (68) ACC 616 (LB)

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20. The instant revision, thus, deserves to succeed for the reasons mentioned herein above.

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21. In the result, the instant criminal revision succeeds and is allowed . The impugned judgment and order dated 25.04.2022 passed by learned Additional Sessions Judge, Court No. Special Judge POCSO Act, Court No.14, Hardoi passed in Criminal Appeal No.13 of 2022, arising out of Case Crime No.0414 of 2021, under Sections 302 & 201 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station- Lonar, District- Hardoi; as well as order dated 17.02.2022 passed by Juvenile Justice Board, Hardoi arising out of Case Crime No.0414 of 2021, under Sections 302 & 201 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station- Lonar, District- Hardoi are hereby, set aside and reversed . The bail application of the revisionist stands allowed .

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22. Let the revisionist, Anuj through his natural guardian/mother be released on bail in the aforesaid case upon his natural guardian/mother furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Hardoi, subject to the following conditions:

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(i) The natural guardian/mother 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 mother will ensure that the juvenile will not repeat the offence.

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(ii) The revisionist and his natural guardian/mother will report to the District Probation Officer on the first Monday of every calendar month, commencing with the first Monday of May, 2023 and if during any calendar month the first Monday falls on a holiday, then on the 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, Hardoi on such periodical basis as the Juvenile Justice Board may determine.

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[A. K. Srivastava-I, J.]

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Order Date :- 17.4.2023 Manoj K.

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Digitally signed by :- MANOJ KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Anuj Thru. Her Mother Manisha v. State of U.P. Thru. Prin. Secy. Home, Lko. and Another

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Anuj Thru. Her Mother Manisha v. State of U.P. Thru. Prin. Secy. Home, Lko. and Another

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