- (1.) B. L. Yadav, J. The present application under Section 439 of the Code of Criminal Procedure, 1973 (for short the Code) has been filed by the appli cant, who is a minor (aged less than 16 years), and incarcerated in jail for an offence under Section 307/326, I. P. C. , P. S. Baraia, District Ballia.
(2.) THE factual matrix of the prosecution case is that on 28th February, 1989, at about 6 p. m. one Shyam Nath Chowdhry was sitting at the house of Goverdhan Misra in village Jageva, when Jawahar Lal and Hare Ram Chow dhry (the present applicant) arrived there, the former is alleged to have caught hold of Shyam Nath Chowdhry, while latter (the applicant) is alleged to have caused injury to Shyam Nath with a DAB. THE true copies of F. I. R. and injury report are Annexure-A and Annexure-B respectively to the affidavit accompanying the application with the prayer for bail. Sri G. P. Dixit, learned counsel for the applicant urged that the applicant was born on 16-7-73 and the entries in the High School Certificate and Scholar's Register indicate that he was less than sixteen years of age. The occurrence took place on 28-2-89, to be exact, his age on the date of occurrence was 15 years 7 months 15 days. He was entitled to the benefit of Section 2 (4) read with Section 29 of U. P. Children Act, 1951, (for short the Act ). Apart from that what is more important is that the children less than 16 years of age, women, infirm or sick are entitled to social justice as one of the ideals and aspirations promised under the Preamble of the Constitution. He was also entitled to the fundamental rights enshrined under Articles 21 and 15 (3) and the concept and benefits of Welfare State provided under Article 38, and bene fits of Article 39 (e) and (f) as substituted by the Constitution (Forty-Second Ameadment) Act, 1976, and the public policy. In para materia to First Proviso to Section 437 of the Code, there was added a Proviso to Section 497 of the Criminal Procedure Code, 1898, (for short the old Code) by the Criminal Law Amendment Act No. 18 of 1923 under the public policy of the then Govern ment. This Proviso was retained in the present Code as First Proviso which may be interpreted in view of the settled principles of interpretation. As the Constitution is the fundamental law of the country. First Proviso to Section 437 of the Code may be interpreted keeping in view these Constitutional man dates as the same was not interpreted with these considerations, the Division Bench decision of this Court in Pramod Kumar Manglik v. Smt. Sadhna Rani, 1989 Alld Weekly Cases 403, requires reconsideration by a larger bench. The applicant deserves to be enlarged on bail. Sri S. K. Mishra, learned counsel for the complainant and the learned Additional Public Prosecutor for tbe State, refuted the arguments for the applicant. A counter-affidavit annexing therewith an extract of kutumb register prepared under Rule 2 of U. P. Panchayat Raj Rules, indicating that the appli cant was more than 16 years of age, has been filed. It was urged that the applicant was not entitled to benefit ol Sections 2 (4) read with Section 29 of the Act, and was neither entitled to the principles of bocial justice, or the Welfare State, nor to the benefits of fundamental rights under Article 21 or to the benefits of Article 38, 39 (e) and (f ). The Division Bench case ol' Pramod Kumar Mangalik v. Smt. Sadliana Rani (supra), was correctly decided. The applicant was not entitled to bail.
(3.) HAVING heard the learned counsel for the parties, the bhort points fall for consideration are whether the Division Bench case of Pramod Kumar Mangalik v. Smt. Sadhana Rani, (supra), waii correctly decided keeping in view the Constitutional aspirations and goal of social justice as promised in the Preamble of the Constitution and the fundamental rights under Article 21 read with Article 15 (3) of the Constitution and the principles of Welfare State and the benefits under Article 39 (e) and (i) of the Constitution ; whether he was entitled to benefit of Sections 2 (4) and 29 of the Act, and whether the true copies of extracts of certificates Bled by the applicant can be relied upon or they can be disbelieved as the complainant has filed the extract of kutumb register which indicates a different date of birth. Before adverting to the other points, the Preamble of our Constitu tion and the concept of social justice may be noticed along with Article 21 read with Articles 15 (3) and 38 and 39 (e) and (f ). The relevant part of the Pream ble of our Constitution is set out below : "we THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRA TIC REPUBLIC and to secure to all its citizens, JUSTICE, social, economic and political. ";