# Amit Kumar @ Raja Revisionist v. State of U.P. & Anr

- **Citation:** (2020) 9 ILRA 995
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-15
- **Case number:** Criminal Revision No. 2388 of 2019
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-kumar-raja-revisionist-v-state-of-u-p-anr-46090
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 401 r/w Section
397 & Indian Penal Code, 1860-Sections
147, 148,149, 323, 504, 506, 304, 308application-claim to be juvenile-four adult
accused
granted
bail
while
the
revisionist/juvenile were disentitled to
bail-the adult offenders whose case is at
par with the revisionist/juvenile, being
found entitled to bail, there is absolutely
no justification to fetter the revisionist's
liberty merely because he is a child in
conflict with law-it would be a great
travesty of justice that the revisionist is
liable to suffer institutional incarceration
in a situation where an adult at par is
entitled to the liberty of bail.(Para 2 to 11)

B. The proviso in Section 12(1) is a special
provision designed to ensure bail to a
juvenile. If an adult accused and a child
have the same role and the adult accused is
found entitled to bail, and holding the
juvenile in institutional incarceration,would
work hostile discrimination against the
revisionist/juvenile.(Para 7 to 11)

The revision is allowed. (E-6)

List of cases cited: -

## Text

9 All. Amit Kumar @ Raja Vs. State of U.P. & Anr.
995
would be adjusted against the said
sentence. The bail bonds and surety bonds
of accused-revisionist are discharged.

20. It was argued by learned counsel
for
the
accused-revisionist
that
the
revisionist-accused has now turned 67
years of age and, therefore, it would be
very painful for him to go to jail and serve
out the remaining sentence at this far
distant point of time, therefore, in view of
the judgment of Apex Court in the case of
State of Rajasthan Vs. Jagdish Prasad,
2009 Law Suit (SC) 694, this Court deems
it proper to grant him three months time
from
today
to
approach
appropriate
Government annexing a certified copy of
this order to seek remission under Section
433(d) Cr.P.C., if so advised.

21. If the revisionist files any such
application for grant of remission by the
Government before the Trial Court with its
receipt then the Trial Court shall await the
outcome of the said application which shall
be informed by the revisionist to the Trial
Court also immediately. If he is granted
remission by the Government, the Trial
Court shall abide by it, failing which the
accused-revisionist shall be taken into
custody after expiry of the period of 3
months from today, to serve out the
remaining sentence.

23. Office is directed to send a copy of
this order to the Trial Court immediately
for compliance
----------
(2020)09ILR A995
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.06.2020

BEFORE

THE HON'BLE J.J.MUNIR, J.
Criminal Revision No. 2388 of 2019

Amit Kumar @ Raja ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Uttam Singh, Sri Dharm Jeet Singh, Sri
Hari Bans Singh

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

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 401 r/w Section
397 & Indian Penal Code, 1860-Sections
147, 148,149, 323, 504, 506, 304, 308application-claim to be juvenile-four adult
accused
granted
bail
while
the
revisionist/juvenile were disentitled to
bail-the adult offenders whose case is at
par with the revisionist/juvenile, being
found entitled to bail, there is absolutely
no justification to fetter the revisionist's
liberty merely because he is a child in
conflict with law-it would be a great
travesty of justice that the revisionist is
liable to suffer institutional incarceration
in a situation where an adult at par is
entitled to the liberty of bail.(Para 2 to 11)

B. The proviso in Section 12(1) is a special
provision designed to ensure bail to a
juvenile. If an adult accused and a child
have the same role and the adult accused is
found entitled to bail, and holding the
juvenile in institutional incarceration,would
work hostile discrimination against the
revisionist/juvenile.(Para 7 to 11)

The revision is allowed. (E-6)

List of cases cited: -

1. Dharmendra (Juvenile) Vs St. of U.P. & ors.,
(2018) 7 ADJ 864

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

1. Supplementary affidavit filed today
in Court is taken on record.
996 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This Revision is directed against an
order of Sri Pramod Kumar Srivastava-II,
the then Additional Sessions Judge, Court
no.1, Ballia, dated 18.05.2019 passed in
Criminal Appeal no.23 of 2019, dismissing
the said appeal and affirming an order of
the Juvenile Justice Board, Ballia, dated
12.04.2019, rejecting the revisionist's bail
plea in Misc. Case no.10 of 2019, arising
out of Case Crime no.515 of 2018, under
Sections 147, 148, 149, 323, 504, 506, 304,
308 IPC, P.S. Kotawali, District Ballia.

3. It appears that there are general
allegations of assault against unknown
offenders in the FIR lodged by Neeraj Dixit
on 18.12.2018. He has said in the FIR that
in the night of 17/18.12.2018 at about 12 O'
clock, 6 - 7 persons armed with sticks
(danda, hockey stick and rod) came over to
his
shop
and
inquired
about
his
whereabouts.
The
informant's
uncle,
Guddan Tiwari informed those unwelcome
visitors that the revisionist was away.
Thereupon, the assailants hurling abuses,
beat up his uncle and struck him employing
the weapons they were carrying. Upon call
for rescue, the neighbouring shop keepers
intervened and dissipated the assault.
Guddan Tiwari was taken to Hospital,
where he succumbed to his injuries. It
transpires that in the statement of the
informant under Section 161 Cr.P.C.
recorded soon after the FIR also, no one
was named. However, in the statement that
was recorded under Section 161 Cr.P.C. 15
days later, the name of the revisionist and
the other co-accused, numbering a total of
seven, was disclosed.

4. It is pointed out by the learned
Counsel for the revisionist that amongst the
seven assailants who have been brought in
through the supplementary statement of the
informant, recorded under Section 161
Cr.P.C. four are adults, whereas three of
them
are
juveniles,
including
the
revisionist. The revisionist was a child aged
13 years 5 months and 2 days on the date of
occurrence. This fact has not been disputed
by the learned A.G.A. It is further pointed
out by the learned Counsel for the
revisionist that all the four adult-accused,
that is to say, Shiv Gupta, Amit Giri @
Golu, Vikas Kumar @ Vikki Rathaur and
Amit Kumar Pawar have been admitted to
bail by this Court vide orders dated
28.03.2019, 13.03.2019 and 21.02.2019
passed in Criminal Misc. Bail Applications
nos.12554 of 2019, 10259 of 2019 and
7564 of 2019 respectively.

5. The submission of the learned
Counsel for the revisionist is that once on
identical facts accused, who are adults,
have been granted bail, it would be travesty
of
justice
to
hold
in
institutional
incarceration, the accused who are children
in conflict with law, with no different
allegations than those against the adult
accused. He submits that incarceration for
the revisionist who is a juvenile while the
adult accused have been granted bail,
would also be discriminatory.

6. Learned A.G.A. has supported the
orders impugned, but does not dispute the
fact that the adult accused have been
granted bail by this Court on their bail
applications under Section 439 Cr.P.C.

7. This Court has keenly considered
the rival submissions. Apart from other
things that are specific to the case of the
revisionist and the special rights that he has
in relation to bail unless his case falls in
one or the other exceptions envisaged
under the proviso to sub-Section (1) of
Section 12 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (for
9 All. Amit Kumar @ Raja Vs. State of U.P. & Anr.
997
short, the Act), there is a plea of
discrimination urged on his behalf. The
submission of the learned Counsel for the
revisionist is that holding the juvenile in
institutional incarceration whereas the adult
accused, against whom there are identical
allegations, have been admitted to bail,
would work hostile discrimination against
the revisionist. This requires
serious
consideration. Section 12 of the Act is
extracted below:

"Section 12- Bail to a person who
is apparently a child alleged to be in
conflict with law

(1) When any person, who is
apparently a child and is alleged to have
committed a bailable or non-bailable
offence, is apprehended or detained by the
police or appears or 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 or placed
under the supervision of a probation officer
or under the care of any fit person:

Provided that such person shall
not be so released if there appears
reasonable grounds for believing that the
release is likely to bring that person into
association with any known criminal or
expose the said person to moral, physical or
psychological danger or the person's release
would defeat the ends of justice, and the
Board shall record the reasons for denying
the bail and circumstances that led to such
a decision.

(2) When such person having
been apprehended is not released on bail
under subsection (1) by the officer-incharge of the police station, such officer
shall cause the person to be kept only in an
observation home in such manner as may
be prescribed until the person can be
brought before a Board.

(3) When such person is not
released on bail under sub-section (1) by
the Board, it shall make an order sending
him to an observation home or a place of
safety, as the case may be, for such period
during the pendency of the inquiry
regarding the person, as may be specified
in the order.

(4) When a child in conflict with
law is unable to fulfil the conditions of bail
order within seven days of the bail order,
such child shall be produced before the
Board for modification of the conditions of
bail."

8. The proviso to sub-Section (1) of
Section 12 is a special provision designed
to ensure bail to a juvenile or a child in
conflict with law where an identically
circumstanced adult is not entitled. The
purpose of the aforesaid proviso is not to
circumscribe
a
child's
liberty
with
additional clogs which a similarly situate
adult accused would not subject to. In other
words, if an adult accused and a child have
the same role and the adult accused is
found entitled to bail, the proviso to subSection (1) of Section 12 of the Act, cannot
be read in a manner so as to disentitle the
child to the liberty of bail. If the provision
was to be construed in the manner that a
child would have added hurdles to
overcome in order to win his liberty of bail,
it might expose the provision to attack
about its constitutionality on the ground of
invidious discrimination.

9. I have considered this question in
Dharmendra (Juvenile) vs. State of U.P.
998 INDIAN LAW REPORTS ALLAHABAD SERIES
and others, 2018 (7) ADJ 864, where it is
held:

"10. The matter can be looked at
from
another
vantage.
In
case
the
revisionist were an adult and stood charged
of the offence that he faces with a weak
circumstantial evidence of last seen and
confession to the police, in all probability,
it would have entitled him to bail pending
trial.
If
on
the
kind
of
evidence
forthcoming an adult would be entitled to
bail, denying bail to a child in conflict with
law may be denying the juvenile/ child in
conflict with law the equal protection of
laws guaranteed under Article 14 of the
Constitution.

11. The rule in Section 12(1) of
the Act is in favour of bail always to a
juvenile/ child in conflict with law except
when the case falls into one or the other
categories denial contemplated by the
proviso. It is not the rule about bail in
Section 12 of the Act that in case a child in
conflict with law is brought before the
Board or Court, his case is not to be seen
on merits prima facie about his complicity
at all for the purpose granting him bail; and
all that has been done is to see if his case
falls is one or the other exceptions, where
he can be denied bail. The rule in Section
12 sanctioning bail universally to every
child in conflict with law presupposes that
there is a prima facie case against him in
the assessment of the Board or the Court
based on the evidence placed at that stage.
It is where a case against a child in conflict
with law is prima facie made out that the
rule in Section 12(1) of the Act that
sanctions bail as a rule, except the three
categories contemplated by the proviso
comes into play. It is certainly not the rule,
and, in the opinion of the Court cannot be
so, that a case on materials and evidence
collected not being made out against a child
at all, his case has to be tested on the three
parameters where bail may be denied
presuming that a prima facie case is
constructively there. Thus, it would always
have to be seen whether a case prima facie
on merits against a child in conflict with
law is there on the basis of material
produced by the prosecution against him. If
it is found that a prima facie case on the
basis
of
material
produced
by
the
prosecution is there that would have led to
a denial of a bail to an adult offender, in
that case also the Rule in Section 12(1) of
the Act mandates that bail is to be granted
to a juvenile/ child in conflict with law
except where his case falls into any of the
three disentitling categories contemplated
by the proviso.

12. In the opinion of this Court,
therefore, the perception that merits of the
case on the basis of prima facie evidence is
absolutely irrelevant to a juvenile's bail
plea under the Act would not be in
conformity with the law. The catena of
decisions that speak about merits of the
case or the charge against a juvenile being
irrelevant, proceed on facts and not an
assumption that a case on merits is made
out, and, not where the case is not at all
made out prima facie. It is not that a child
alleged to be in conflict with law against
whom there is not iota of evidence to
connect him to the crime would still have
bail denied to him because his case may be
placed in or the other disentitling categories
under the proviso to Section 12(1) of the
Act. If this kind of a construction were to
be adopted it might expose the provisions
of Section 12(1) of the Act to challenge on
ground of violating the guarantee of equal
protection of laws enshrined in Article 14
of the Constitution. It is an enduring
principle that a construction that lends a
9 All. Amit Kumar @ Raja Vs. State of U.P. & Anr.
999
statute
to
challenge
about
its
constitutionality should be eschewed and
one that saves and upholds its vires is to be
adopted. In this context the guidance of
their Lordships of the Hon'ble Supreme
Court in Japani Sahoo vs. Chandra Sekhar
Mohanty, (2007) 7 SCC 394 may be
referred to:-

"51. The matter can be looked at
from different angle also. Once it is
accepted (and there is no dispute about it)
that it is not within the domain of the
complainant or prosecuting agency to take
cognizance of an offence or to issue
process and the only thing the former can
do is to file a complaint or initiate
proceedings in accordance with law. If that
action of initiation of proceedings has been
taken within the period of limitation, the
complainant is not responsible for any
delay on the part of the Court or Magistrate
in issuing process or taking cognizance of
an offence. Now, if he is sought to be
penalized because of the omission, default
or inaction on the part of the Court or
Magistrate, the provision of law may have
to be tested on the touchstone of Article 14
of the Constitution. It can possibly be urged
that such a provision is totally arbitrary,
irrational and unreasonable. It is settled law
that a Court of Law would interpret a
provision which would help sustaining the
validity of law by applying the doctrine of
reasonable construction rather than making
it vulnerable and unconstitutional by
adopting rule of 'litera legis'. Connecting
the provision of limitation in Section 468 of
the Code with issuing of process or taking
of cognizance by the Court may make it
unsustainable and ultra vires Article 14 of
the Constitution."

10. In the facts of the present case,
there is no quarrel that the role of all the
accused is identical. The four adult
accused, to wit, Shiv Gupta, Amit Giri @
Golu, Vikas Kumar @ Vikki Rathaur and
Amit Kumar Pawar have all been admitted
to bail by this Court, a fact about which
there is no quarrel. This Court does not find
any justification to undertake further
inquiry with reference to the proviso to
sub-Section (1) of Section 12 of the Act, to
find out in these circumstances, whether the
revisionist is disentitled to bail under one or
the other category. Even if the revisionist
were disentitled under one or the other
contingencies envisaged in the proviso to
sub-Section (1) of Section 12 of the Act,
the adult offenders, whose case is at par
with the revisionist, being found entitled to
bail, there is absolutely no justification to
fetter the
revisionist's liberty merely
because he is a child in conflict with law. It
would be a great travesty of justice to read
the provision that way and hold that the
revisionist is liable to suffer institutional
incarceration in a situation where an adult
at par is entitled to the liberty of bail.

11. In the result, this revision
succeeds and is allowed. The impugned
order dated 18.05.2019 passed by the
learned Additional Sessions Judge, Court
no.1, Ballia in Criminal Appeal No.23 of
2019 and the order dated 12.04.2019
passed by the Juvenile Justice Board, Ballia
in Misc. Case no.10 of 2019, arising out of
Case Crime no.515 of 2018, under Sections
147, 148, 149, 323, 504, 506, 304, 308 IPC,
P.S. Kotawali, District Ballia, rejecting the
revisionist's bail plea, are hereby set aside
and reversed. The bail application made on
behalf of the revisionist before the Board
through his father stands allowed.

12. Let the revisionist, Amit Kumar
@ Raja through his natural guardian/
father Ikbal Ram @ Ekbar son of late
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
Raghuraj, be released on bail in Case
Crime no.515 of 2018, under Sections 147,
148, 149, 323, 504, 506, 304, 308 IPC, P.S.
Kotawali, District Ballia upon his father
furnishing a personal bond with two
solvent sureties of his relatives each in the
like amount to the satisfaction of the
Juvenile Justice Board, Ballia subject to the
following conditions:

(i) that the natural guardian/
father Ikbal Ram @ Ekbar will furnish an
undertaking that upon release on bail the
juvenile will not be permitted to come into
contact or association with any known
criminal or allowed to be exposed to any
moral, physical or psychological danger
and further that the father will ensure that
the juvenile will not repeat the offence.

(ii) The revisionist and his father
Ikbal Ram @ Ekbar will report to the
District Probation Officer on the first
Monday
of
every
calendar
month
commencing with the first Monday of July,
2020 and if during any calendar month the
first Monday falls on a holiday, then on the
following working day.

(iii)
The
District
Probation
Officer will keep strict vigil on the
activities of the revisionist and regularly
draw up his social investigation report that
would be submitted to the Juvenile Justice
Board, Ballia on such periodical basis as
the Juvenile Justice Board may determine.

(iv) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

(v) The computer generated copy
of such order shall be self attested by the
counsel of the party concerned.

(vi)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2020)09ILR A1000
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.08.2020

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 4186 of 2019

Jitendra Kumar Bind ...Revisionist (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Pavan Kumar Srivastava, Sri Bare Lal,
Sri Ajay Pratap Singh

Counsel for the Opposite Parties:
A.G.A., Sri Pavan Kumar Mishra, Sri Pavan
Kumar Mishra

A. Criminal Law - Bail plea - Juvenile
Justice (Care and Protection of Children)
Act, 2015 - Section 12, 18(1)(g) - Code of
Criminal Procedure - Sections 161, 164 -
The gravity of the offence is not relevant
consideration for refusing grant of bail to
the juvenile (Para 16, 17)

Present bail plea arises out of case u/s 342,
323, 376D, 506 IPC and u/s 5/6 POSCO Act as
well as u/s 3(2) 5 SC/ST Act. It is observed that
the statements under Sections 161 and 164
Cr.P.C. are self-contradictory, which has been
overlooked by both the Courts below and
further the Courts have also not considered the
radiological age of the victim as per the medical
report. (Para 4, 15)

The maximum period for which a juvenile can
be incarcerated in whatever form of detention,