Maroof v. State Of Uttar Pradesh & Others

1. Supplementary-affidavit filed today, is taken on record. Heard learned counsel for the revisionist and the learned A.G.A. for the State.

2. The brief facts as emanate from record reveal that a first information was lodged at case crime No. 181 of 2013 under Section 376 (d), 120-B, I.P.C. and Section 5(g), 6 POCSO Act, Police Station Kotwali district Shamili on 10.6.2013, wherein the revisionist (juvenile) was one of the accused. The matter was investigated and a charge-sheet was filed. During the course of the proceedings, the revisionist claimed himself to be a juvenile by moving an application before the Juvenile Justice Board, Muzaffar Nagar (in short referred to as the Board). The Board, after due consideration, allowed the application so moved, vide order dated 14.4.2014 and thereafter, he moved an application for bail before the Board. The Board after considering the application for bail, rejected the same vide order dated 25.4.2014, holding that in case the juvenile is released on bail, it may bring him into association with any known criminal or expose him to moral, physical or psychological danger and his release on bail will defeat the ends of justice. Thereafter, Criminal Appeal No. 71 of 2014 was preferred before the Sessions Judge, Muzaffar Nagar, wherein the appellate Court confirmed the finding of the Board and dismissed the appeal vide order dated 19.5.2014. Consequently, this revision.

3. Learned counsel for the revisionist submits that in this case the Courts below completely overlooked and misread the contents of the report of the District Probation officer while making observation about the well being of the minor (juvenile), that his release would adversely effect the moral, physical or psychological interest, thus, defeating the ends of justice.

4. Learned counsel for the private respondent opposed the prayer for bail and submitted that the applicant was involved in a heinous crime and concurrent findings have been returned by the Board and the lower appellate Court which need no interference by this Court.

5. In view of above rival submissions the moot point involved in this revision for adjudication relates to the fact as to whether the bail to the delinquent juvenile in conflict with law will have to be considered on the strength of the merits of the case, or on gravity of offence or on the parameters as laid down under Section 12 of the Act.

6. Before dealing with the matter, it would be appropriate to take into account Section 12 of the Act which is extracted hereinunder:

"12. Bail of juvenile.--(1) 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 or 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.

(2) When such person having been arrested is not released on bail under sub-section (1) by the officer-in-charge 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.

(3) 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."

7. The above law as contained under sub-section (1) of Section 12 of the Act categorizes a situation when bail to a delinquent juvenile can be refused.

8. In so far as the mandate of the aforesaid Section 12 of the Act relating to the grant of bail to a delinquent juvenile is concerned,......the only exception given for rejecting a bail stipulates to the extent that he shall not be so released if there appears 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.

9. In view of the mandate aforesaid, it is obvious that if the aforesaid conditions are existing and there is reasonable likelihood of minor coming into association with any known criminal or he is likely to be exposed to moral, physical or psychological danger or his release would defeat the ends of justice, then the bail to the delinquent juvenile in conflict with law will not be allowed.

10. Even as per settled position of law, the merits/gravity of the offence will not be the sole guiding factor for disposal of the bail application of the delinquent juvenile in conflict with law. It is true that the First Information Report has been lodged against the revisionist under Sections 376(d) I.P.C. and Section 5(g) POCSO Act, but gravity of the offence loses significance in view of the paragraph No. 5 of the affidavit filed in support of the supplementary-affidavit to the instant revision, wherein, it has been specifically stated that the father of the juvenile is willing to reform his child. This positively indicates that he is ready to take custody of his son with a will to improve his life.

11. However, it has been opined by the District Probation Officer that if the delinquent juvenile is released on bail, possibility of the delinquent juvenile falling into company with the known criminal or there being physical, moral or psychological danger to the safety of the delinquent juvenile cannot be ruled out. But there is total absence of any supporting material regarding above observation. As to how such specific opinion has been formed by the District Probation Officer without there being any supporting material giving rise to the possibility of the minor falling into company with the known criminal or there being physical, moral or psychological danger to the safety of the minor or to defeat the ends of justice. In view of above backdrop of the facts, it can be conveniently observed that the bail application of the minor cannot be opposed simplicitor on the ground of gravity of the offence particularly when parents/guardian of the delinquent juvenile in conflict with law are ready to do reformative act on their part for upliftment of their child. Consequently, the rider/exception contained under Section 12(1) is not applicable on account of want of supporting material.

12. So far as the report of the District Probation Officer is concerned, I pored over the same. It indicates that the parents of the juvenile exercise lesser supervision over the juvenile and in absence of proper care and in the event of his release on bail, there is possibility of juvenile falling into association with the known criminal or anti social elements. However, the observation so made is not supported by any relevant material on record and mere hypothetical equation will not, ipso facto, term bald finding into certainty and this finding cannot be acted upon by this Court, as such. Any finding recorded by the District Probation Officer is supposed to contain at least some supportive relevant and cogent material so that the Court may take notice of the same and may analyze the material so placed on record as to whether the juvenile, if released on bail, will reasonably fall into company with known criminal and would be adverse to his physical, moral and psychological interest and upliftment. Therefore, the report of the District Probation Officer, Muzaffar Nagar, is liable to be discarded for the reasons aforesaid.

13. The Board, completely overlooked this particular aspect of the case, while rejecting the bail application. Even learned Sessions Judge while deciding Criminal Appeal No. 71 of 2014 was very much influenced by the gravity of the offence and did not take into account the fact that the parents of the minor are willing to reform their child and there is nothing on record which may reflect that the mandate as laid down under sub-section (1) of Section 12 of the Act will be violated, in case the delinquent minor is released on bail. In absence of any such clear cut finding based upon sufficient supporting material that the release of the delinquent juvenile will be in violation of the conditions contained under Section 12(1) of the Act, it would not be proper to give primacy to gravity of the offence alone. The pertinent point is whether the release would bring the minor into association with any known criminal or will put him into physical, psychological or moral danger or it would defeat the ends of justice. In that perspective, it was incumbent upon the learned Sessions Judge, to have taken into consideration the aforesaid mandate as contained under sub-section (1) of Section 12 of the Act. Even the report of the District Probation Officer admittedly lacks any relevant and supporting material, which may, indicate any reasonable possibility that in case juvenile is released on bail the ends of justice would be defeated.

14. Learned counsel for the revisionist submits that the natural guardian/father Jameera @ Jamir Hasan on behalf of the delinquent minor undertakes to exercise complete control over the delinquent and will not bring him into association with any know criminal or will not put him in such situation that will put the minor into physical, mental or psychological danger and the delinquent will not repeat the offence alleged against him and he would be reformed.

15. In the case of Re-A Juvenile Vs. State of Orissa, (2009) CLT 366 (Suppl Crl) : (2009) CriLJ 2002 [LQ/OriHC/2008/1098] : (2009) 1 OLR 494 [LQ/OriHC/2008/1098] : (2009) OLR 366 (Suppl Crl) , it has been held:

"7. A close reading of the aforementioned provision shows that it has been mandated upon the Court to release a person who is apparently a juvenile on bail with or without surety, howsoever heinous the crime may be and whatever the legal or other restrictions containing in the Cr.P.C. or any other law may be. The only restriction is that if there appear reasonable grounds for believing that his release is likely to bring him into association with any known criminal or expose him to any moral, physical or psychological danger or his release would defeat the ends of justice, he shall not be so released."

16. In the case Sanjay Chaurasia (In Jail) Vs. State of Uttar Pradesh and Vimal Kumar Saini, (2006) CriLJ 2957 [LQ/AllHC/2006/1012] , it has been laid down by this Court as under:

"10. In case of the refusal of the bail, some reasonable grounds for believing above-mentioned exceptions must be brought before the Courts concerned by the prosecution but in the present case, no such ground for believing any of the above-mentioned exceptions has been brought by the prosecution before the Juvenile Justice Board and Appellate Court. The Appellate Court dismissed the appeal only on the presumption that due to commission of this offence, the father and other relatives of other kidnapped boy had developed enmity with the revisionist, that is why in case of his release, the physical and mental life of the revisionist will be in danger and his release will defeat the ends of justice but substantial to this presumption no material has been brought before the Appellate Court and the same has not been discussed and only on the basis of the presumption, Juvenile Justice Board has refused the Bail of the revisionist which is in the present case is unjustified and against the spirit of the Act."

17. In the case of Ravi-Ul-Islam Vs. State (NCT), (2007) CriLJ 612 [LQ/GujHC/2006/716] : (2006) 129 DLT 595 , it has been held as under:

"6. Looking at the Social Investigation Report, it is difficult to come to the conclusion that the release of the juvenile would bring him into association of any known criminal or expose him to any physical or moral danger or his release would defeat the ends of justice. Accordingly, in view of the specific provisions of Section 12 of the said Act, the petitioner would be clearly entitled to be released on bail."

18. At the cost of repetition it can be summarized that there is no adverse report or material that minor cannot be improved under guardianship of his father. Even the report of the District Probation Officer, Muzaffar Nagar, is not supported by any material as to how minor will fall in company of bad elements if released on bail. The observation of the District Probation Officer in absence of any supporting material becomes bald and vague. Consequently, the same is to be ignored in a situation when father of the delinquent juvenile promises to work for improvement of his son.

19. In view of the above, the prayer for bail made on behalf of the delinquent minor is liable to be allowed.

20. Consequently, the orders impugned dated 25.4.2014 and 2.5.2014 passed by the Juvenile Justice Board, Muzaffar Nagar on the bail application of the delinquent juvenile and the impugned judgment and order dated 19.5.2014 passed by the learned Sessions Judge, Muzaffar Nagar in Criminal Appeal No. 71 of 2014 are hereby set aside and the prayer made for grant of bail to the delinquent juvenile through his father who is natural guardian Jameera @ Jamir Hasan son of Azimuddin is allowed.

21. Let the revisionist Maroof through his natural guardian/father be released on bail in Case Crime No. 181 of 2013 under Sections 376(d), 120-B, I.P.C. and Section 5(g), 6 POCSO Act, Police Station Kotwali district Shamli on his father Jameera @ Jamir Hasan furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Muzaffar Nagar with an undertaking that in case the delinquent juvenile is released on bail and is given in his custody he will not create any situation which will bring the delinquent juvenile into association with any known criminal or expose to him moral, physical and psychological danger or any situation when the delinquent juvenile may repeat the offence in question and he will work for improvement of the delinquent juvenile.

22. Accordingly, the instant revision is allowed. Let a copy of this order be certified to the Juvenile Justice Board, Muzaffar Nagar, at the earliest.