Court No. - 38
Case :- CRIMINAL REVISION No. - 3787 of 2018 Revisionist :- Rohit @ Abhishek Kumar Paswan Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Rajesh Kumar Mall,Dharmendra Kumar,Vinod Kumar Shukla Counsel for Opposite Party :- G.A.
Hon'ble Virendra Kumar Srivastava,J.
Supplementary affidavit filed by the learned counsel for the revisionist, which is taken on record.
This revision has been preferred by the revisionist Rohit @ Abhishek Kumar (Juvenile) through his guardian/mother Rambha Devi against the the judgment and order dated 19.7.2018 in Crl. Appeal No.29 of 2018 passed by the Additional Session Judge, Court No.5, Kushi Nagar, whereby the appeal preferred against the order dated 30.5.2018 in case crime no.211 of 2018, under sections 302 and 506 I.P.C, P.S Kasya, District Kushinagar passed by Juvenile Justice Board, Kushi Nagar (Board) has been dismissed.
Heard Sri Dharmendra Kumar, learned counsel for the revisionist and learned A.G.A for opposite party No.1. No one is present on behalf of opposite party No.2 in spite of service of notice.
The brief facts of this case are that on 3.4.2018 the opposite party No.2 Sunil Paswan lodged the first information report with the allegation that his younger brother Manil Paswan had gone for job on 2.4.2014 but did not return at his home. Upon search his dead body was found on 3.4.2018 in the bush of Ram Autar's farm. It was further mentioned in the first information report that the opposite party No.2 had doubt and suspicion on Dukhi Paswan and his son Rohit Paswan (revisionist) who would have caused the murder of his brother Manil Paswan due to property dispute. After registration of the first information report, the investigation was carried on by the investigating officer and charge sheet under sections 302 and 506 I.P.C was filed.
The revisionist was declared juvenile but application filed for his bail was rejected by the Board and the appeal preferred against the said order was also dismissed by the aforesaid impugned judgement and order.
Learned counsel for the revisionist has submitted that the revisionist is juvenile and has falsely been implicated in the present case. He has been charge sheeted along with his father who is the only accused with him. He has no criminal history. There is no evidence against him. No specific role has been assigned against him. If he is released on bail, he will not misuse the liberty of bail. He is languishing in jail since 11.4.2018. Co-accused ie father of revisionist has already been enlarged on bail. The order dated 30.5.2018 passed by the Board as well as the order dated 19.7.2018 in Crl. Appeal No.29 of 2018 passed by the Additional District and Session Judge, Court No.5, Kushi Nagar, are against the provision of law which are liable to be set aside.
Learned A.G.A has vehemently opposed the prayer made by the learned counsel for the revisionist and submitted that if the revisionist is released on bail, he will join in the company of habitual criminal,hence he is not entitled for bail.
The Juvenile Justice (Care and Protection) Act, 2015 (Act) has been enacted with object to reform and protect the future career of children below the age of 18 years. The main purpose of this Act is to keep the juvenile out of company and society of habitual criminals and to keep them in place of safety. The parameter and guidelines for assessment of plea of bail of a juvenile has been provided in Section 12 of the Act which is as under:-
"When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is 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 1[or placed under the supervision of a Probation Officer or under the care of any fit institution of fit person] but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him 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.
When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."
Thus it is clear that the provision for release to a juvenile has overriding effect to any provision contained in Code of Criminal Procedure, 1973 or in any other law for the time being in force. According to this provision, a duty has been cost to grant bail to a juvenile unless there is a reasonable ground for plea that the release is likely to bring the juvenile into association with any known criminal or exposed the said juvenile to moral, physical or psychological danger or that his release would defeat the end of justice.
Plea of bail raised by juvenile cannot be rejected in a mechanical manner. While considering the parameter provided in Section 12 of the Act, nature of offence, role played by the juvenile in committing the offence, his family background, his association with known or unknown criminals or bad elements of society, number of person named in the occurrence and future carrier of juvenile should also be taken into consideration by Juvenile Justice Board or court concerned in addition to the other factors.
In this case the revisionist and his father were named only on the account of doubt and no eye witness of the occurrence has been named in the first information report. In the first information report no unknown or known criminal has been named. Admittedly the revisionist was juvenile at the time of occurrence and he is in custody since 11.4.2018. Record further shows that he had passed High School Examination in 2016. No material is available on record whereby it can be presumed that the revisionist was in association of any criminal or bad elements.
From perusal of impugned judgement and order passed by the appellate Court as well as passed by the Board, it transpires that both the Courts below have passed the impugned judgement 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 this case. The impugned judgment and orders are liable to be set aside.
Consequently, the revision succeeds and is allowed. Both the impugned judgement and orders dated 30.5.2018 passed by Juvenile Justice Board, Kushinagar as well as the order dated 19.7.2018 in Crl. Appeal No.29 of 2018 passed by the Additional District and Session Judge, Court No.5, Kushi Nagar, are hereby set aside.
Let the revisionist Rohit @Abhishek Kumar Paswan (Juvenile) through his natural guardian/mother Rambha Devi be released on bail in the aforesaid criminal case and be given into custody of his natural guardian mother Rambha Devi on furnishing a personal bond with two solvent sureties of his relatives each in like amount to the satisfaction of Juvenile Justice Board, Kushi Nagar on the following conditions.
(i) That, Rambha Devi/ natural guardian of the revisionist will furnish an undertaking that upon release on bail, the juvenile will not be permitted to go into contact or association with any known or unknown criminal or exposed to any moral or physical danger and will not indulge in any criminal activity and he will make best effort for improvement of juvenile's carrier.
(ii) That the revisionist and his aforesaid mother/ natural guardian shall remain present before the trial court on each date fixed, either personally or through his counsel.
Order Date :- 29.4.2019 G.S