# Akash @ Nirmal Mishra Revisionist(In Observation Home) v. State of U.P. & Anr

- **Citation:** (2020) 10 ILRA 123
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-05
- **Case number:** Criminal Revision No. 1944 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akash-nirmal-mishra-revisionist-in-observation-home-v-state-of-u-p-anr-45127
- **Pages:** 5

## Headnote

Children ) Act, 2015- Section 12- Bail of
Juvenile- Relevant considerations for-
Last disentitling clause- " defeat the ends
of justice"- About the factum of the
incident, there is reasonable assurance at
this stage, short of the charge being
tested at the trial- It is true that the
merits of the case or prima facie tenability
of the charge, like an adult, is not entirely
decisive to the fate of the bail plea- It is
not altogether irrelevant-The gravity of
124 INDIAN LAW REPORTS ALLAHABAD SERIES
the charge, manner of its perpetration,
circumstances in which the offence is
alleged to have been committed, its
immediate and not so immediate impact
on the society at large and the locality, in
particular, besides its impact on the
aggrieved family, are all matters to be
taken into reckoning while judging a
juvenile's bail plea. All these factors are
relevant under the last disentitling clause
postulated under the proviso to Section
12 (1) of the Act, which says that release
of the juvenile would "defeat the ends of
justice"- Proviso has been thoughtfully
introduced by the legislature to arm the
Court with a right to overcome an
otherwise absolute right to bail, where in
the totality of the circumstances , release
on bail would adversely impact the law
and order and the equilibrium of an
ordered society.

While deciding the bail plea of a juvenile the
merits of the case are relevant under the last
disentitling Clause of Section 12(1) of the Act
which says that release of the juvenile would
"Defeat the ends of justice". The gravity of the
offence and its impact on the society would be
relevant and a juvenile would not be entitled to
be released on bail when the offence is grave or
heinous and where his release on bail would
adversely impact the law and order and the
equilibrium of an ordered society. (Para 8,9)

Criminal Revision rejected. (E-3)

Case law/ Judgements relied/ cited:-

## Text

10 All. Akash @ Nirmal Mishra Vs. State of U.P. & Anr.
123

18. This Court is of opinion that in
relation to the last of the three dis-entitling
features, the present case is an apt
illustration of a very valid distinction
between the case of co-accused, Vikash
Yadav (minor) and the revisionist here. In
the case of Vikash Yadav (minor), the child
in conflict with the law was aged 13 years 9
months and 16 days on the date of
occurrence, whereas in the present case, he
is hardly two and a half month short of
majority. More than that, the child in
conflict in Vikash Yadav (minor) (supra)
was found to be a disabled child with 57%
physical disability. These factors, in the
opinion of this Court, would work to
illustrate the point that in cases of juvenile
justice, the rule of parity in bail matters
would not operate the way it does, in cases
under Section 437 or 439 Cr.P.C.

19. In the result, this Court does not
find any good ground to interfere with the
impugned orders. This revision fail and is
dismissed.

20. It is, however, clarified that
anything said in this matter will not affect
the rights of parties on merits and the
Juvenile Justice Board or the Children's
Court trying the offence, would be free to
reach its conclusions at the trial, based on
the evidence led, unaffected by anything
said here.

21. However, looking to the period of
detention of the revisionist, it is directed
that trial pending before the concerned
court be concluded expeditiously and
preferably within three months from the
date of receipt of a copy of this order, in
accordance with Section 309 Cr.P.C. and in
view of principle laid down in the judgment
of the Hon'ble Supreme Court in the case of
Vinod Kumar v. State of Punjab reported
in 2015 (3) SCC 220, if there is no legal
impediment.

22. It is made clear that in case the
witnesses are not appearing, the concerned
court shall initiate necessary coercive
measures for ensuring their presence.

23. Let a copy of the order be
certified to the court concerned for strict
compliance to the Board or the Court
concerned, through the learned Sessions
Judge, Deoria by the Joint Registrar
(Compliance).
----------
(2020)10ILR A123
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.10.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Revision No. 1944 of 2019

Akash @ Nirmal Mishra
 ...Revisionist(In Observation Home)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Babu Lal Ram, Sri Phool Singh Yadav

Counsel for the Opposite Parties:
A.G.A.

Juvenile Justice ( Care and Protection of
Children ) Act, 2015- Section 12- Bail of
Juvenile- Relevant considerations for-
Last disentitling clause- " defeat the ends
of justice"- About the factum of the
incident, there is reasonable assurance at
this stage, short of the charge being
tested at the trial- It is true that the
merits of the case or prima facie tenability
of the charge, like an adult, is not entirely
decisive to the fate of the bail plea- It is
not altogether irrelevant-The gravity of
124 INDIAN LAW REPORTS ALLAHABAD SERIES
the charge, manner of its perpetration,
circumstances in which the offence is
alleged to have been committed, its
immediate and not so immediate impact
on the society at large and the locality, in
particular, besides its impact on the
aggrieved family, are all matters to be
taken into reckoning while judging a
juvenile's bail plea. All these factors are
relevant under the last disentitling clause
postulated under the proviso to Section
12 (1) of the Act, which says that release
of the juvenile would "defeat the ends of
justice"- Proviso has been thoughtfully
introduced by the legislature to arm the
Court with a right to overcome an
otherwise absolute right to bail, where in
the totality of the circumstances , release
on bail would adversely impact the law
and order and the equilibrium of an
ordered society.

While deciding the bail plea of a juvenile the
merits of the case are relevant under the last
disentitling Clause of Section 12(1) of the Act
which says that release of the juvenile would
"Defeat the ends of justice". The gravity of the
offence and its impact on the society would be
relevant and a juvenile would not be entitled to
be released on bail when the offence is grave or
heinous and where his release on bail would
adversely impact the law and order and the
equilibrium of an ordered society. (Para 8,9)

Criminal Revision rejected. (E-3)

Case law/ Judgements relied/ cited:-

1. Crl. Revision No. 915 of 2017, Sumit Kumar
Vs St. of U.P & anr. dec. on 13.04.2018.

2. Vinod Kumar Vs St. Of Punj.

(Delivered by Hon'ble J.J. Munir, J.)

1. This revision is directed against an
order of Smt. Pooja Singh, Special Judge
(POCSO)/ XIth Additional Sessions Judge,
Kanpur Nagar dated 30.03.2019 dismissing
Criminal Appeal No.30 of 2019 and
affirming an order of the Juvenile Justice
Board, Kanpur Nagar dated 16.02.2019
refusing bail to the revisionist in Case
Crime No.530 of 2018, under Section 376
IPC and Section 3/4 of the POCSO Act,
Police Station Panki, District Kanpur
Nagar.

2. Notice was issued to opposite party
no.2 by this Court vide order dated
14.05.2019. According to the office report
dated 31.07.2019, notice has been received
back after personal service, detailed in the
report, placed at Flag-A. A perusal of the
said
report
shows
that
the
Chief
Metropolitan Magistrate, Kanpur Nagar has
indicated
through
his
memo
dated
26.06.2019 that the notice issued by this
Court has been personally served by Head
Constable no.787 on opposite party no.2.
Service upon opposite party no.2 is,
therefore, held sufficient. No on appears on
behalf of the said opposite party.

3. Heard Sri P.S. Yadav, learned
Counsel for the revisionist and the learned
A.G.A. appearing on behalf of the State.

4. A perusal of the First Information
Report dated 16.11.2018 shows that it has
been lodged by opposite party no.2, Smt.
Mohini wife of Akhilesh on 16.11.2018 at
00:31 hours regarding an occurrence dated
15.11.2018, that befell the victim at 6
o'clock in the evening. It is said in the FIR
that the informant's minor daughter (for
short, ''the prosecutrix') aged about six
years was playing along with other children
of the locality when the revisionist, who is
also a resident of the same locality,
ravished the prosecutrix. It is mentioned in
the FIR that the informant had come to the
Station along with a relative of hers, whom
she has named in the FIR as also the minor
prosecutrix, asking the police to register a
case and to take necessary action. It
10 All. Akash @ Nirmal Mishra Vs. State of U.P. & Anr.
125
appears that Case Crime no.530 of 2018,
under Section 376 IPC and Section 3/4 of
the POCSO Act, Police Station Panki,
District Kanpur Nagar, was registered on
the basis of the aforesaid information.

5. The revisionist moved the Juvenile
Justice Board asking them to declare him a
child in conflict with law. The Juvenile
Justice
Board
by
their
order
dated
08.01.2019 adjudged the revisionist a child
in conflict with law aged 14 years, 3
months and 15 days on the date of
occurrence. The revisionist then asked to be
released on bail by an application made
under Section 12 of the Juvenile Justice
(Care and Protection of Children) Act, 2015
(for short, ''the Act'). The bail application
came to be rejected by the Juvenile Justice
Board. The revisionist assailed that order in
Appeal carried to the learned Sessions
Judge. The revisionist's Appeal has since
come to be dismissed by means of the
impugned order. Assailing both the orders
denying bail, the instant Revision has been
brought.

6. It is argued by Sri P.S. Yadav,
learned Counsel for the revisionist that the
revisionist is a child in conflict with law,
who is below the age of 16 years. His case
regarding bail, therefore, has to be
considered strictly on the parameters of
Section 12(1) of the Act. He emphasizes
that regarding bail plea of a juvenile of the
revisionist's age, there can be no reference
about the merits of the prosecution case or
the gravity of the offence. All that is
required to be seen is whether given his
right to be released on bail, is he disentitled
under any of the three exceptions to the
rule of bail postulated under Section 12(1)
of the Act. Mr. Yadav submits that there is
nothing on record to show that the
revisionist's case falls under any of the
three disentitling exceptions. He urges that
the Courts below have not properly
evaluated the social investigation report,
which alone could furnish relevant material
to form an opinion whether the revisionist
ought to be enlarged on bail pending trial.
Learned Counsel for the revisionist has
placed reliance on a decision of this Court
in Criminal Revision no.915 of 2017,
Sumit Kumar vs. State of U.P. and
another, decided on 13.04.2018 in support
of his submission, noted above.

7. Learned A.G.A. on the other hand
urges that it is a heinous crime, where a six
years old child has been ravished by the
revisionist. In case, the revisionist were
released on bail, it would lead to ends of
justice being defeated.

8. This Court has considered the rival
submissions and perused the record. It may
be true that the Courts below have not
undertaken a careful exercise by evaluating
the
social
investigation
report
while
forming their opinion on the first of the two
disentitling parameters under the proviso to
Section 12(1) of the Act, that is to say, the
prospect of release bringing the child in
conflict into association with some known
criminal or exposing him to moral, physical
or psychological danger. But, that does not
end the matter. It is a case where the
revisionist, though below the age of 16, has
ravished a very young prosecutrix, who is
just six years old. About the factum of the
incident, there is reasonable assurance at
this stage, short of the charge being tested
at the trial. The prosecution is consistent in
the FIR lodged by the prosecutrix's mother,
the statement of the prosecutrix and her
mother, recorded by the police, under
Section 161 Cr.P.C. and the statement of
the prosecutrix, under Section 164 Cr.P.C.
before the Magistrate.
126 INDIAN LAW REPORTS ALLAHABAD SERIES

9. This Court has also noticed that the
police appear to have recorded the young
prosecutrix's statement in some or the other
form of electronic record, be it a video or
an audio recording, possibly in the presence
of her mother. All these remarks may not be
understood as the Court's intendment to
express any opinion on the merits of the
charge. All that this Court wishes to say is
that for the present, the Court seized as it is
of the bail matter, there is a reasonable
assurance about the charge being prima
facie credible. It is true that the merits of
the case or prima facie tenability of the
charge, like an adult, is not entirely
decisive to the fate of the bail plea. At the
same time, it is not altogether irrelevant.
The gravity of the charge, manner of its
perpetration, circumstances in which the
offence is alleged to have been committed,
its immediate and not so immediate impact
on the society at large and the locality, in
particular, besides its impact on the
aggrieved family, are all matters to be taken
into reckoning while judging a juvenile's
bail plea. All these factors are relevant
under the last disentitling clause postulated
under the proviso to Section 12(1) of the
Act, which says that release of the juvenile
would ''defeat the ends of justice'. After all
''defeat the ends of justice' is not a word of
art. It has been thoughtfully introduced by
the legislature to arm the Court with a right
to overcome an otherwise absolute right to
bail,
where
in
the
totality
of
the
circumstances, release on bail would
adversely impact the law and order and the
equilibrium of an ordered society.

10. The case in hand shows that the
revisionist by his action, if true, has put the
society and its surroundings on alarm. His
actions have led to a situation, where prima
facie no child of tender years, and more
than that the parents or the guardians of a
young child, would feel safe during their
daily routine, when there is nothing
otherwise to call extra caution. In the
opinion of this Court, it is a case where
release of the child in conflict with law
would lead to ends of justice being
defeated.

11. In the result, this Court does not
find any good ground to interfere with the
impugned orders. This revision fails and is
dismissed.

12. It is, however, clarified that
anything said in this matter will not affect
the rights of parties on merits and the
Juvenile Justice Board or the Children's
Court trying the offence, would be free to
reach its conclusions at the trial, based on
the evidence led, unaffected by anything
said here.

13. However, looking to the period of
detention of the revisionist, it is directed
that trial pending before the concerned
Court be concluded expeditiously and
preferably within two months from the date
of receipt of a copy of this order, in
accordance with Section 309 Cr.P.C. and in
view of principle laid down in the judgment
of the Hon'ble Supreme Court in the case of
Vinod Kumar v. State of Punjab
reported in 2015 (3) SCC 220, if there is
no legal impediment.

14. It is made clear that in case the
witnesses are not appearing, the concerned
Court shall initiate necessary coercive
measures for ensuring their presence.

15. Let a copy of the order be
certified for strict compliance to the Board
or the Court concerned, through the learned
Sessions Judge, Kanpur Nagar by the Joint
Registrar
(Compliance).
10 All. Khushabuddin Ali Vs. State of U.P. & Anr.
127
----------
(2020)10ILR A127
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.10.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Revision No. 4921 of 2019

Khushabuddin Ali ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Atul Nayak, Sri Rajesh Kumar Mall, Sri
Ravi Kumar Srivastava

Counsel for the Opposite Parties:
A.G.A.

Juvenile Justice ( Care and Protection of
Children ) Act, 2015- Section 12- Bail of
Juvenile- The regime about a universal
rule of bail to the juvenile and then
subjecting it to the three disentitling
conditions under the proviso to Section 12
(1) of the Act has application in a case
where a juvenile is not entitled to bail on
the merits of the case- It does not mean
that in a case where a juvenile on the
merits of the case is entitled to bail, his
bail plea must still pass muster u/s 12 (1)
of the Act.

Where a juvenile is entitled to bail on the merits
of the case, there is no need for testing his case
on the rigors of the three disentitling provisions
u/s 12 (1) of the Act.

Juvenile Justice ( Care and Protection of
Children ) Act, 2015- A perusal of the FIR,
the statement under Section 161 Cr.PC.
and that under Section 164 Cr.P.C casts a
grave shadow of doubt on the prosecution
story. In the event, the revisionist were an
adult, in all probability, he would have
been entitled to bail on merits - Nothing
in the social investigation report that the
revisionist, if released on bail, would come
in association with any known criminal or
would be exposed to any moral, physical
or
psychological
danger.
In
the
circumstances, there is no basis to infer
that the release of the revisionist on bail
would lead to ends of justice being
defeated.

Since on the merits of the case the story of the
prosecution
is
doubtful
and
the
social
investigation report is in
favour of the
revisionist, hence revisionist is entitled to bail.
(Para 10, 13, 14)

Revision accordingly allowed.(E-3)

(Delivered by Hon'ble J.J. Munir, J.)

1. This Revision, under Section 102
of the Juvenile Justice (Care and Protection
of Children) Act, 2015 (for short, ''the Act')
is directed against a judgment and order
passed by Mr. Lakshmi Kant Shukla,
learned
Special
Judge
POCSO
Act,
Kushinagar at Padrauna dated 07.11.2019
dismissing Criminal Appeal no.57 of 2019
and affirming an order passed by the
Juvenile Justice Board, Kushinagar at
Padrauna, dated 11.09.2019, refusing bail
to the revisionist in Case Crime no.315 of
2019, under Sections 363, 366, 376, 506
IPC and Section 3/4 of the POCSO Act,
Police Station Kotwali Padrauna, District
Kushinagar.

2. Notice was issued to opposite party
no.2 vide order dated 20.12.2019. A perusal
of the office report dated 27.02.2020 shows
that service upon opposite party no.2 has
been effected through his daughter. Service
report is on record marked with Flag - A.
The service report submitted by the Chief
Judicial
Magistrate,
Kushinagar
at
Padrauna, dated 22.01.2020 shows that
opposite party no.2 has been served
through his daughter, Sukanya Yadav.