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2019 Supreme(All) 605
HIGH COURT OF JUDICATURE AT ALLAHABAD
PRADEEP KUMAR SRIVASTAVA, J.
Nitin Kumar @ Tushar (Juvenile) - Appellant
Vs.
State Of U.P. - Respondent
Criminal Appeal No. 3490 of 2019
Decided on : 09-05-2019
Advocate Appeared:
Anurag Shukla, Adv.
The main legal point established in the judgment is that bail to the juvenile is mandatory and can only be refused in the interest of the juvenile, when releasing the juvenile will bring him into association with known criminals, expose him to danger, or defeat the ends of justice. The seriousness of the alleged offence cannot be the sole criteria for rejecting bail for a juvenile.
Headnote:
Juvenile Justice Act - Bail Application - Section 147, 148, 302, 506 I.P.C. - Section 12, 15, 18(3) of Juvenile Justice Act - Section 12 of Juvenile Justice Act, 2015 provides for bail criteria for juveniles. Section 15 deals with the transfer of a juvenile to the Children Court for trial as an adult. Section 18(3) allows the JJ Board to transfer the trial of the case to the Children Court if there is a need for trial of the child as an adult. The court emphasized that bail to the juvenile is mandatory and can only be refused in the interest of the juvenile, when releasing the juvenile will bring him into association with known criminals, expose him to danger, or defeat the ends of justice. The court highlighted that the seriousness of the alleged offence cannot be the sole criteria for rejecting bail for a juvenile. The court found apparent illegality in the impugned order and set it aside, allowing the bail application of the juvenile.
Fact of the Case:
Juvenile Nitin Kumar @ Tushar filed an appeal challenging the rejection of his bail application by the Special Judge (POCSO) Act/Additional Sessions Judge. The appellant was declared a juvenile and sought bail on the basis of being falsely implicated in the case due to enmity. The court found that the impugned order was illegal and set it aside, allowing the bail application of the juvenile.
Finding of the Court:
The court found apparent illegality in the impugned order and set it aside, allowing the bail application of the juvenile.
Issues: The issues revolved around the rejection of the juvenile's bail application, the criteria for granting bail to juveniles under the Juvenile Justice Act, and the legality of the impugned order.
Ratio Decidendi: The court emphasized that bail to the juvenile is mandatory and can only be refused in the interest of the juvenile, when releasing the juvenile will bring him into association with known criminals, expose him to danger, or defeat the ends of justice. The court highlighted that the seriousness of the alleged offence cannot be the sole criteria for rejecting bail for a juvenile.
Final Decision: The impugned order dated 11.04.2019 passed by the Special Judge (POCSO) Act/Additional Sessions Judge, Court no. 11, Kanpur Nagar in Bail Application No. 710 of 2019 is set aside. Consequently the bail application of juvenile is allowed. The juvenile, accused-appellant namely Nitin Kumar @ Tushar be released on bail and he be given in the custody of his father guardian namely Shiv Kumar on his filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian father Shiv Kumar shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. He will also give an undertaking that on being so released on bail, the accused-appellant namely juvenile Nitin Kumar @ Tushar will not however indulge in commission of any crime and he will ensure his presence during trial before the court whenever so required by the court below.
PRADEEP KUMAR SRIVASTAVA, J.
1. Heard Shri Anurag Shukla, learned counsel for the appellant, Shri L.D. Rajbhar, learned AGA for the State and perused the record.
2. Admit
3. Notice need not be given to the learned AGA as he has already received the same on behalf of the State.
4. This appeal has been filed by juvenile Nitin Kumar @ Tushar against the order dated 11.04.2019 passed by the Special Judge (POCSO) Act/Additional Sessions Judge, Court no. 11, Kanpur Nagar in Bail Application No. 710 of 2019, arising out of Crime No. 113 of 2017, under section 147, 148, 302, 506 I.P.C., P.S. Raipurwa, District - Kanpur Nagar by which the bail application of the juvenile has been rejected by the learned court below.
5. Facts relating to the present appeal are that, in respect of a criminal incident dated 30.07.2017 at 10 p.m. a FIR was lodged against the accused persons in which the name of the juvenile has not been mentioned. It has been submitted by the learned counsel for the accused-appellant that informant in his statement under section 161 Cr.P.C. has stated that instead of writing the name of juvenile, name of one Jitendra has wrongly been mentioned. Aggrieved by the rejection order, the juvenile has filed this appeal challenging the impugned order on the basis that his name was not mentioned in the FIR and in the statement of informant it has come that Chotu assaulted his son by Rapi (weapon/cutting tool usually used by cobbler) and she has stated that the other accused persons were exhorting him. The FIR was ante time and it was stated by the two eye witnesses and the informant that the role of the juvenile was that he was exhorting the co-accused Chotu at the time of incident. Learned counsel for the appellant has submitted that the appellant was falsely implicated in the case because of enmity. He further submitted that nothing incriminating has been recovered from the possession of the appellant and there is no criminal history. As per High School certificate he was born on 10.04.2001 and the Juvenile Justice Board, Kanpur has declared him to be juvenile, therefore, the impugned order is illegal and perverse and against the spirit of Juvenile Justice Act and is liable to be set aside and the juvenile is entitled for bail.
6. The order of the Juvenile Justice Board dated 28.11.2018 has been attached alongwith appeal and from the perusal of the order it is clear that the appellant has been declared juvenile and his date of birth was determined to be 10.04.2001 as per High School certificate and at the time of incident he was 16 years 3 months and 20 days in age and below 18 years. It is why as per the provisions of section 18 (3) of the Juvenile Justice Act his case was transferred to the children court for his trial as adult.
7. Learned A.G.A. has vehemently opposed and has contended that the learned trial court has rightly rejected the bail application on the basis of sufficient evidence available on record against the appellant.
8. Section 12 of Juvenile Justice Act, 2015 by the amended Act the criteria for bail under section 12 of the Juvenile Justice Act has not been changed and provision has been made under Section 12 of the Act that when any person accused of a bailable or a non-bailable offence and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution except when
1. if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or
2. that it will expose him to moral, physical or psychological danger, or
3. that his release would defeat the ends of justice.
9. It has been held by the supreme court in Dr. Subramaniam Swamy vs Raju, (2014) 86 AllCriC 637 that a juvenile has to be released on bail unless the court has a reasonable ground to believe that his r
