PRATYUSH KUMAR, J. - (1.) BY way of the instant revision, juvenile Sanjay @ Sanju has challenged the judgement and order dated 17th November, 2014 passed by Sri Ali Zameen, Sessions Judge, Fatehpur in Criminal Appeal No.69 of 2014 (Sanjay @ Sanju Vs. State of U.P.).
(2.) BRIEFLY stated the present controversy arose out of the proceedings of Case Crime No.368 of 2013 under section 302 I.P.C. Police Station Bindaki, District Fatehpur, when the Juvenile Justice Board, Fatehpur had rejected the request for bail made on behalf of the revisionist on the ground that social investigation report submitted by the probation officer revealed that the juvenile had love affair with Vandana, daughter of the deceased, which was opposed by the deceased for which she was murdered by the revisionist. According to the probation officer, considering the educational background, motive of the crime, the juvenile did not appear to be entitled to be released on bail because he was not amenable to the parental control. There were reasons to believe that, in case, he was enlarged on bail, he might be exposed to be moral, physical and psychological danger. In case, he was released on bail, development of his personality would be adversely affected.
(3.) THIS order was challenged in the aforementioned appeal. After detailed discussion, the learned Sessions Judge came to the opinion that juvenile used to misbehave with the daughter of the deceased, when she objected, the juvenile murdered her. The learned Sessions Judge also noticed this fact that alleged act of the juvenile had negative impact on the society. Thereafter, he referred two judgments of this Court wherein it was observed that while exercising jurisdiction under section 12 of The Juvenile Justice (Care and Protection of Children) Act, 2000, not only the welfare of the juvenile is to be seen but conduct of the juvenile in commission of the crime should be seen whether the juvenile suffers from depravity against which the society has a right to be protected. Feeling aggrieved, the validity of the impugned judgement and order has been challenged before this Court on the ground that report of the probation officer regarding conduct and behaviour of the revisionist in college and neighbourhood has been completely ignored. The juvenile has been detained for more than one an a half years in observation home. At the time of the alleged incident, he was aged about 17 years, five months, 15 days. He is a student. His confinement in observation home will ruin his life. The impugned order is against the provisions and spirit of the Juvenile Justice (Care and Protection of Children) Act, 2000. In support of the ground raised hereinabove, the learned counsel for the revisionist has taken me through the impugned judgement and order passed by the Sessions Judge. According to him social investigation report cannot be used against the revisionist from which juvenile is entitled for release. It is only for the State to prove that the case of the juvenile squarely falls within the prohibited limit prescribed by section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000. In support of his argument, learned counsel for the revisionist has referred the following cases: - 1. Ashu Vs. State of U.P.,2014 1 UPCriR 613. Para 4 of the judgement has been referred to substantiate the argument advanced on behalf of the revisionists. Relevant para is quoted hereinbelow: - "4. The accused revisionist has been declared juvenile by the Juvenile Justice Board. The provisions of Section 12 of the said Act are mandatory in nature and the gravity of the offence is not a relevant consideration in the case of a juvenile. There is also no reliable material on record to show that release of the revisionist on bail would defeat the ends of justice and his release would expose him to moral danger. In these circumstances, the Board was not justified in rejecting the bail application of the of the revisionist. The appellate Court has also not considered the provision of Section 12 of the said Act in proper perspective. Thus, both the impugned orders are not sustainable and are liable to be set aside." 2. Umesh Vs. State of U.P. and another, 2011 75 AllCriC 66. Observation made in para 8 has been relied on by the revisionist which reads as under: - "8. The aforesaid provision provides that a juvenile accused has to be released on bail unless there are 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. There is no evidence on record to bring the case of the revisionist within the expections provided in section 12 of the Act. There are nothing on record to show that the revisionist would come in association with any known criminal or his release would expose him to moral, physical or psychological danger. There is also nothing on record to show that the release of the revisionist on bail would defeat the ends of justice. The gravity of the offence is not a relevant consideration for grant of bail, as held by this Court in Shiv Kumar alias Sadhu v. State of U.P., Adult co -accused have already been granted bail by the High Court on the ground of cross -case. 3. Amit Kumar Vs. State of U.P.,2010 71 AllCriC 209. Learned counsel for the revisionists has referred this case to fortify his argument, even gravity of the crime would not dis -entitle the juvenile of his release on bail except only when prohibited ground has been successfully established against the request for release. Paras 6 to 9 of the judgement are relevant for the present purpose. They are quoted as below: - "6. A perusal of section 12 of the Act reveals that a juvenile is entitled to bail notwithstanding gravity of the crime. His bail can be refused only when there are reasonable grounds for believing that his 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. 7. It was not disputed that the revisionist has no criminal background. He is alleged to have killed his own sister on account of the annoyance that she had herself solemnized marriage with one Lattha alias Upendra Singh against the wishes of her family members. There is no evidence to show that in the event of the release of the revisionist on bail he will come into the association with any known criminal or he will be exposed to moral, physical or psychological danger. Even gravity of the crime is no ground to deny bail to juveniles nor it can be taken as a ground to hold that the release of the juvenile would defeat the ends of justice. The revisionist is not a professional criminal nor has any association with any known or unknown criminal. The offence was committed by him on account of his being highly annoyed from the marriage performed by his sister against the wishes of his and his family members. In this view of the matter, it would not be in the interest of justice to keep such a juvenile in custody. Therefore his release on bail would not in any way defeat the ends of justice. 8. In the case of Vijendra Kumar Mali v. State of U.P., this Court has held: 6. This Court in a number of judgments has categorically held that bail to the juvenile can only be refused if anyone of the grounds existed. So far as the ground of gravity is concerned, it is not covered under the above provisions of the Act. If the bail application of the juvenile was to be considered under the provisions of the Code of Criminal Procedure, there would have been absolutely no necessity for the enactment of the aforesaid Act. The language of section 12 of the Act itself lays down that notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974) or in any other law for the time being in force, the juvenile accused shall be released. Not only this, the Parliament re -considered the entire matter and repealed the old Act of 1986 by introduced the new Act No.56 of 2000, raising the age from 16 to 18 years. This has been done keeping in view the welfare of the child so that even after committing an offence a child may not become a hardened criminal but he may reform himself. 9. And in Akash Rai v. State of U.P. this court again held as under: "...... As per provision of section 12 of the Juvenile Justice (Care and Protection of Children ) Act, 2000 except on the ground mentioned therein bail is mandatory to the Juvenile. It appears from the judgement and order passed by the Session Judge, Mau that the revisionist is Class XIIth Student and according to the report of the District Probation Officer, Ballia he has committed Crime due to company of bad elements. The District Probation Officer's report is based on no evidence and it appears that simply to make a ground that the revisionist may not be released on bail the report has been submitted. There is nothing on record that after release the revisionist would come in association with any known Criminal or exposed him to moral, Physical or Psychological danger or that of his release would defeat ends of justice. Father of revisionist has given an undertaking about the revisionist's welfare and education." 4. Kamlesh Kumar alias Ankush Vs. State of U.P. and another, 2012 2 UPCriR 448. In this case, this Court has rejected the gravity of the offence as a ground for rejection of the request of the juvenile on bail. Para 7 of the judgment contained the reasons which is quoted as below: - "7. These facts are not disputed by the learned A.G.A. but he submits that the offence committed by the revisionist is of grave in nature. The rejection of the bail application of the revisionist by the Courts below by the aforesaid judgment and order is based on the report of the District Probation Officer mentioning therein that there are sufficient grounds for believing that if the revisionist is released on bail he will come into association with any known criminal. Apart from the report of District Probation Officer there is no other material to support this fact. Considering the aforesaid facts and circumstances the impugned judgment and order dated 18.9.2010 passed by the Sessions Judge, Kanpur Nagar and the order dated 20.8.2010 passed by the Juvenile Justice Board are illegal and suffer from perversity and the same are hereby set aside. Keeping in view the welfare of the revisionist with a hope that he may recover himself he is entitled for bail." ;