Ayush Srivastava @ Kushal Thru. His Father Praveen Kumar Vs State of U.P. Thru. Prin. Secy. Home Deptt. and 3 Others

Neutral Citation No. - 2024:AHC-LKO:56938

Court No. - 11

Case :- CRIMINAL REVISION No. - 581 of 2023 Revisionist :- Ayush Srivastava @ Kushal Thru. His Father Praveen Kumar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. And 3 Others

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Counsel for Revisionist :- Rakesh Dwivedi,Vijayendra Prakash Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Abdul Moin,J.

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Heard learned counsel appearing for the revisionist and learned Additional Government Advocate for the State and perused the record.

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By means of the instant revision filed under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the Act, 2015) the revisionist has challenged the validity of the orders dated 16.02.2023 passed by Juvenile Justice Board, Unnao rejecting his application for release on bail and the order dated 15.04.2023 passed by the Special Judge (POCSO Act), Unnao dismissing Criminal Appeal No.13 of 2023 filed by the revisionist against the order rejecting his bail application.

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At the very outset, learned A.G.A. states that in pursuance to order of this Court dated 12.08.2024 he has received instructions from the SHO, Police Station Achhal Ganj, District Unnao dated 19.08.2024 that the revisionist has been charged of offences on the basis of "last seen".

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The aforesaid statement is recorded.

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The FIR under Section 302, 394, 201, 411, 34 IPC Police Station Achhalganj, District Unnao was filed against the revisionist and two others persons. The incident pertains to three persons having booked a taxi and thereafter having absconded with the said taxi and having murdered the driver of

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the vehicle. The revisionist being a juvenile after being charged of the said offences is said to be in juvenile home since 29.05.2022.

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The report of the District Probation Officer dated 13.02.2023, a copy of which is annexure SA-2 to the supplementary affidavit dated 03.07.2024 indicates that neither the revisionist nor his family members have got any previous criminal antecedents or criminal history and that the uncle of the juvenile is ready to keep the juvenile in his custody and has assured that he would not permit the juvenile to interact with any criminal elements.

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It is contended that learned Juvenile Justice Board vide order dated 29.05.2022, a copy of which is filed alongwith the revision, has rejected the bail application. Being aggrieved the appeal which was fled by the juvenile has also been rejected by learned appellate court vide judgement and order dated 16.02.2023.

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Placing reliance on recent judgement of Hon'ble Supreme Court in the case of Juvenile In Conflict With Law V vs State of Rajasthan and another passed in Criminal Appeal arising out of Special Leave Petition (Crl) No. 9566 of 2024 decided on 14.08.2024 the contention is that the provision to Sub-Section (1) of Section 12 of the Act 2015 has been considered by Hon'ble Supreme Court wherein Hon'ble Supreme Court has held that a Court while denying bail has to give a finding that the proviso to Section 12(1) of the Act 2015 is applicable to the facts of the case and without recording the said finding bail could not have been denied to juvenile in conflict with law.

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It is contended that Hon'ble Supreme Court has also considered the psychological assessment report of the juvenile

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concerned wherein Hon'ble Supreme Court has indicated that against the column of "worry list of child" it is mentioned that there is "no worry" and as such it was a fit case for grant of bail to the juvenile, as such the matter has neither been considered by the juvenile justice board nor by the appellant court while rejecting the bail application.

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On the other hand, learned A.G.A. has supported the order impugned on the ground that considering the seriousness of allegations as levelled against the revisionist the learned board and learned appellate court has correctly rejected the bail.

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Having heard learned counsel for the parties and having perused the record it emerges that the revisionist has been charged of offences on the basis of "last seen". He is said to be in juvenile home since 29.05.2022. Perusal of order of learned juvenile justice board would indicate that learned board as failed to consider the provisions of Section 12 of the Act 2015 while rejecting the application for bail rather the board has gone to the extent that in serious cases the juvenile would not be entitled for bail. Likewise learned appellate court while rejecting the appeal filed by the juvenile has also not considered the provisions of Section 12 of the Act 2015.

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Hon'ble Supreme Court in the case of Juvenile In Conflict With Law V (supra) has held as under:

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"5. In the entire process, the appellant has completed one year of custody. Section 12 of the JJ Act reads thus:

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"Section 12: Bail to a person who is apparently a child alleged to be in conflict with law.

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

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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 persons 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 sub-section (1) by the officerin-charge of the police station, such officer shall cause the person to be kept only in an observation home [or a place of safety, as the case may be] 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 subsection(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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6. From the phraseology used in sub-section 1 of Section 12, a juvenile in conflict with law has to be necessarily released on bail with or without surety or placed under supervision of a probation officer or under the care of any fit person unless proviso is applicable.

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7. We have perused all the orders passed earlier by the JJ Board, Special Court and High Court and specially the order dated 11th December, 2023 passed by the JJ Board. There is no finding recorded that the proviso to sub-Section 1 of Section 12 is applicable to the facts of the case. Without recording the said

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finding, bail could not have been denied to juvenile in conflict with law.

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8. Our attention is invited to Psychological Assessment Report of the Juvenile. The report records that the juvenile does not belong to high risk category and against the column "worry list of child" it is mentioned that there was "no worry". The report is signed by a qualified Clinical Psychologist.

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9. Though none of the courts at no stage have recorded a finding that in the facts of the case, the proviso to sub-Section 1 of Section 12 was applicable, the juvenile in conflict with law has been denied bail for last one year.

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10. Hence, the impugned orders are set aside. The appeal is accordingly allowed.

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11. We direct that the juvenile in conflict with law shall be released on bail without surety. However, the jurisdictional Juvenile Justice Board shall issue appropriate directions to the jurisdictional Probation Officer to keep the juvenile under supervision and to submit periodical reports to the Board about the conduct of the Juvenile."

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From perusal of judgement of Hon'ble Supreme Court it emerges that Hon'ble Supreme Court has held that from the phraseology used in Section 12(1) of the Act, 2015 a juvenile in conflict with law has to be necessarily released on bail with or without surety or placed under supervision of a probation officer or under the care of any fit person unless proviso is applicable. The proviso to Section 12(1) of the Act, 2015 would also indicate that the juvenile shall not be released if there appears to be reasonable grounds that release is likely to bring that person into association with any known or unknown criminal or expose the said person to moral, physical or psychological dangers.

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In this regard it would be suffice to refer to the report of District Probation Officer, Kanpur Nagar wherein he has

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indicated that there is no possibility of the juvenile coming into contact with any known or unknown criminal and that the uncle of the revisionist is ready to keep the juvenile in his custody and has assured that he would not permit the juvenile to interact with any criminal elements.

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Perusal of the orders passed by the learned Board as well as the learned appellate court would indicate that both have failed to consider the proviso of Section 12(1) of the Act, 2015.

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Keeping in view the aforesaid discussion, the revision is allowed. The orders impugned dated 16.02.2023 and 15.04.2023, copies of which are part of revision, are set aside.

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Let the revisionist- Ayush Srivastava @ Kushal - involved in aforesaid case be released on bail on upon his 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 concerned subject to the following conditions:-

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(i) 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 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. The D.P.O. shall maintain a diary recording their

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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 concerned.

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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 :- 21.8.2024 J. K. Dinkar

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

Ayush Srivastava @ Kushal Thru. His Father Praveen Kumar v. State of U.P. Thru. Prin. Secy. Home Deptt. and 3 Others

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Ayush Srivastava @ Kushal Thru. His Father Praveen Kumar v. State of U.P. Thru. Prin. Secy. Home Deptt. and 3 Others

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