# Kuldeep(Minor) Revisionist (In Jail) v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 850
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-09-13
- **Case number:** Criminal Revision No. 1451 of 2017
- **Bench:** Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuldeep-minor-revisionist-in-jail-v-state-of-u-p-anr-45317
- **Pages:** 7

## Headnote

Law-Code
of
Criminal
Procedure,1973-Section
397/401
&
Indian Penal Code,1860-Sections 302,
411, 394, 34, 120-B- grant of bail to
juvenile-rejection of bail by lower courtHowever, Section 12(1) provides for bail
to a child in conflict with law-juvenile
justice Act is meant for minors who are
innocent law breakers-accused-juvenile
granted bail on his father furnishing a
personal bond with two sureties.(Para 11
to 22)

B. Section 12(1) of juvenile justice act
provides for If release is likely to bring
that person into association with any
known criminal or be exposed to any
moral, physical or psychological danger
or the person's release would defeat the
ends of justice. Board shall record the
reasons for denying bail.(Para 11)

Criminal Revision allowed.(E-6)

List of Cases Cited:

## Text

850 INDIAN LAW REPORTS ALLAHABAD SERIES
decisions including the decision given in
the case of Om Prakash Vs. State of
Rajsthan (Supra) relied upon by the
revisionist and it has been observed that it
is a settled proposition of law that if the
Matriculation or equivalent certificates are
available and there is no other material to
prove the correctness, the date of birth
mentioned in the Matriculation Certificate
has to be treated as a conclusive proof of
the date of birth of the accused.

9. This Court is of the view that
in the situation of present case, there was
no necessity for medical examination of
the accused as the inquiry was confined to
the provisions of J.J. Act and Rules. In
Ashwani Kumar Saxena (supra) the
inquiry was conducted even there was
High School Certificate on record. The
Apex Court has deprecated the procedure
adopted as in the present case by the Court
below . In the facts and circumstances of
the present case, the law cited by learned
Counsel for the revisionist do not help
him.

10. In view of discussions made
above, this Court comes to the conclusion
that the learned Appellate Court has dealt
with the question of juvenility as per the
procedure laid down in the J.J. Act and
Rules and has rightly relied upon the date
of birth mentioned in the High School
Certificate, according to which the accused
Asif Saifi is minor. I find no justifiable
ground for making any interference in the
impugned order.

11. Hence, this revision fails and
is hereby dismissed. "

(9) In view of above, the trial court
has committed manifest error in disposing
of the application of the revisionist without
holding an inquiry as stated above, so the
revision is liable to be allowed.

(10) Accordingly, the revision is
allowed.
Order
impugned
dated
13.09.2018 passed by Fourth Additional
Session
Judge,
Sultanpur
passed
in
Session Trial No.433 of 2014 (State
Versus Kamruddin and others) by which
application for declaration of juvenile has
been rejected by him arising from Case
Crime No.255 of 2014, under Sections
302/34, 120B of I.P.C. and 3/25 Arms Act
relating to Police Station - Dostpur,
District - Sultanpur is set aside and the
matter is remanded back to the trial court
to decide the matter afresh in the lite of
observation made above and conduct an
inquiry under Section 7A of the Act, 2000
after giving opportunity of hearing to the
revisionist.

(11) Since the matter is old one, it is
expected
that
the
inquiry
shall
be
conducted without granting unnecessary
adjournment to either of the parties.
----------
(2020)02ILR A850

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2019

BEFORE
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Revision No. 1451 of 2017

Kuldeep(Minor) ...Revisionist (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Umesh Yadav, Sri Awadhesh Kumar, Sri
Babu Lal Ram, Sri Nayab Ahmad Khan, Sri
Ravindra Sharma

Counsel for the Opposite Parties:
A.G.A.
2 All. Kuldeep (Minor) Vs. State of U.P. & Anr.
851
A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section
397/401
&
Indian Penal Code,1860-Sections 302,
411, 394, 34, 120-B- grant of bail to
juvenile-rejection of bail by lower courtHowever, Section 12(1) provides for bail
to a child in conflict with law-juvenile
justice Act is meant for minors who are
innocent law breakers-accused-juvenile
granted bail on his father furnishing a
personal bond with two sureties.(Para 11
to 22)

B. Section 12(1) of juvenile justice act
provides for If release is likely to bring
that person into association with any
known criminal or be exposed to any
moral, physical or psychological danger
or the person's release would defeat the
ends of justice. Board shall record the
reasons for denying bail.(Para 11)

Criminal Revision allowed.(E-6)

List of Cases Cited:

1. Sanjay Chaurasia Vs. St. Of U.P.(2006)
Cr.L.J. 2957

2.
A.Juvenile
Vs.
St.
Of
Orissa,(2009
)Cr.L.J.,2002

3. Sunil Kumar Sambhudayal Gupta Vs. St. Of
Mah. (2011) 72 ACC 699

4. Amit Kumar Vs. St. Of U.P. (2010) 3 J.I.C.
768 (All)

(Delivered by Hon'ble Narendra Kumar
Johari, J).)

1. The instant Revision has been
filed on behalf of Revisionist-Kuldeep
(minor) S/o Gautam through his uncle
Subhash Chandra S/o Jiv Rakkhan, against
the order dated 16.03.2017 passed by
Additional Sessions Judge, Court No.1,
Jaunpur in Criminal Appeal No.37 of 2017
(Kuldeep Vs. State), arising out of Case
Crime No.664 of 2016, under Section 302,
411, 394, 34, 120-B I.P.C., Police StationKheta Sarai, District-Jaunpur.

2. Heard learned counsel for the
revisionist, learned A.G.A. for the State
and perused the record.

3. Opposite party no.2 has been
served personally, but he did not turn up
before this Court.

4. The fact of the case in brief is that
complainant-Ram Teerath has lodged the
F.I.R. on 19.09.2016 at about 11.30 a.m.
stating that his maternal brother-Lalji is a
teacher in Delhi. At present, Lalji along
with his mother-Bhagirathi and son-Rinku
is residing at Delhi. His wife-Sudama Devi
is alone residing in her house at
Lakhmapur. Lalji telephonically called
complainant and said that he could not talk
to his wife, as mobile-phone of his wifeSudama Devi is switched off for last 2-3
days. He further directed him to go his
residence and arrange talks with his wife.
On the request of Lalji, complainant along
with Gautam, son of Jiv Rakkhan went at
the residence of Sudama Devi, he found
that room was locked. He watched through
window, then he saw that Sudama Devi
was lying on the bed in dead condition.
There was cut mark on her neck. There
was dispute of Sudama Devi regarding the
agricultural
land
and
pathway
with
Vishram, Sochan, Mahendra, Surendra,
Revindra
and
Virendra
Kumar,
all
residents of the same village. Resultantly,
they all have murdered Sudama Devi. He
created doubt on Ravindra and Virendra
Kumar, residents of Lakhmapur also.

5.

On
the
aforesaid
F.I.R.,
investigation
was
started.
During
investigation, the name of Gautam Kumar,
his
wife-Chandrama
Devi
and
son-
852 INDIAN LAW REPORTS ALLAHABAD SERIES
Kuldeep came into light for committal of
murder and Police recovered mobilephone, ornaments of deceased from them.
The
weapon-knife
has
also
been
recovered. Accordingly, they have been
arrested by the police.

6. Revisionist approached Juvenile
Justice Board stating that at the time of
incident
he
was
minor.
Principal
Magistrate Juvenile Justice Board vide
order dated 05.01.2017 declared him
minor as on 19.09.2016 i.e. on date of
occurrence, his age was 16 years 2 months
9
days.
Revisionist
further
moved
application for granting bail which was
rejected by Principal Magistrate, Juvenile
Justice Board, Jaunpur on 09.02.2017.
Against the said rejection order, revisionist
approached Session Court by way of
Criminal Appeal No.37 of 2017. Lower
appellate court heard the appeal on merits
and rejected the same vide order dated
16.03.2017. Against the said rejection
order, the instant revision has been filed.

7. Learned counsel for the revisionist
has
submitted
that
the
mother
of
revisionist-Smt. Chandrama Devi was
released on bail on 08.02.2017 and his
father Gautam was also released on bail on
28.02.2017 in Case Crime No.664 of 2016.
The present revision has been filed
through uncle of minor revisionist on
24.04.2017.

8. Learned counsel for the revisionist
has further submitted that revisionist has
falsely been implicated in the present case.
He has no other previous criminal history.
He has not been named in F.I.R. also.
There was no motive to commit offence.
The mobile-phone as shown recovered
from the possession of revisionist has been
planted falsely with connivance with real
culprit.
During
the
course
of
the
proceedings, Gautam Kumar, father of
revisionist
has
given
affidavit
on
22.04.2019 stating that if his son be
released on bail, he will supervise him and
will
provide
better
atmosphere
and
education him and he will assure that his
son will not misuse the liberty on bail and
he will not be involved in any criminal
activities. Revisionist has been kept in
observation home since 04.10.2016. The
case of revisionist is still pending in
Juvenile Justice Board.

9. Learned counsel for the revisionist
has
also
submitted
that
Principal
Magistrate, Family Court considered the
nature of offence and mentioned that there
exists reasonable grounds to believe that
there is likelihood of minor coming into
association
with
criminals.
The
observation of learned Principal Judge,
Family Court is baseless. There is nothing
on record which may indicate any
reasonable grounds for so belief. Learned
appellate court has rejected the appeal on
the ground that the parents of revisionist
are accused in the case, if revisionist be
released on bail he will fall in their
association. The observation of learned
appellate court is also erroneous and
against the principles of law. The orders of
both the courts are based upon the
surmises and conjectures.

10. Per contra, learned A.G.A. has
contended that considering the nature of
the offence, the revision is liable to be
dismissed. It has also been argued that the
parent of revisionist have committed a
heinous offence in which juvenile was also
involved. If juvenile will be released on
bail he will remain with his parent, then in
that case their son (revisionist) will
inclined towards criminal mentality. The
2 All. Kuldeep (Minor) Vs. State of U.P. & Anr.
853
order passed by the Juvenile Justice Board
in declining the bail and also the order
passed by appellate court upholding the
order of Principal Magistrate, Juvenile
Justice Board are based on materials on
record.

11. Before dealing with the matter, it
would be appropriate to take into account
Section 12 of Juvenile Justice (Care and
Protection of Children) Act, 2015 which is
reproduced as under:-

"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 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-in-charge 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 fulfill 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."

12. According to the provisions of
Section
12
(1),
the
wording
used
"notwithstanding anything contained in the
Code of Criminal Procedure or in any other
law for the time being in force" is non-obstante
clause which has been used by legislation,
therefore, the delinquent juvenile may be
released on bail irrespective of the provisions
of Code of Criminal Procedure. The exception
of such release has been mentioned in proviso
of Section 12 (1) i.e. if there appears
reasonable grounds for believing that release is
likely to bring the juvenile into association of
known criminals or expose the said juvenile to
moral, physical or psychological danger or the
person's release would defeat ends of justice.

13. The Act, namely, Juvenile Justice
(Care and Protection of Children) Act,
2015 being beneficiary and social reforms
oriented legislation, should be given full
effect by all concerned whenever matters
relating
to
juvenile
comes
for
consideration before them. There must be
any
material
or
evidence
reflecting
reasonable
ground
to
believe
that
delinquent juvenile, if released on bail is
likely to fall into association with known
854 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal persons or such liberty may
expose
him
to
moral,
physical
or
psychological danger, or his release would
defeat the ends of justice. In absence of
such reasonable grounds the bail of
juvenile should not be refused. In Sanjay
Chaurasia Vs. State of U.P. 2006 Cr.L.J.
2957 it has been observed that:-

"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. It appears that the impugned order
dated 27.06.2005 passed by the learned
Sessions Judge, Meerut and order dated
28.05.2005 passed by the Juvenile Justice
Board are illegal and set aside."

14. Learned Magistrate by its order
dated 09.02.2017 has rejected the bail of
revisionist mentioning that the offence
committed by juvenile is heinous and nonbailable in nature.

15. In the case of A. Juvenile Vs.
State of Orissa, 2009 Cr.L.J., 2002, it has
been held that:

"(6) 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 appears
reasonable grounds for believing that his
release is likely to bring him into
association with any moral, physical or
psychological danger or his release would
defeat the ends of justice, he shall not be
so released."

16. During enquiry before Juvenile
Justice Board, District Probation Officer,
Jaunpur has submitted his report indicating
that " the social status of juvenile's family
is general." Juvenile has good relation with
their neighbours. There is no criminal
history of juvenile. Elder brother of
juvenile is studying at Delhi. The family of
juvenile is simple. Involvement of juvenile
in offence is doubtful.

17. So far as the reason as indicated
by learned Sessions Judge while rejecting
the appeal that the parent of delinquent
juvenile is also involved in offence as
accused, if the juvenile will be released
under the supervision of his parents, he
will fall in their company which is not
good. So far as the observation of
appellate court is concern. It is also be
kept in mind that although father is
involved as accused in the Crime No.664
of 16, yet the trial has not been concluded.
This fact has not been disputed by learned
A.G.A. It is the cardinal principle of
2 All. Kuldeep (Minor) Vs. State of U.P. & Anr.
855
criminal jurisprudence that unless and
until the offence is proved, every accused
shall be kept in the rank of innocence.

18. In the case of Sunil Kumar
Sambhudayal
Gupta
Vs.
State
of
Maharastra 2011 (72) ACC 699 Hon'ble
Apex Court has held that:-

"Every accused is presumed to
be innocent unless his guilt is proved. The
presumption of innocence is a human
right. Subject to the statutory exceptions,
the said principle forms the basis of
criminal jurisprudence in India. The
nature of the offence, its seriousness and
gravity has to be taken into consideration.

The Appellate Court should bear
in mind the presumption of innocence of
the accused, and further, that the Trial
Court's acquittal bolsters the presumption
of his innocence. Interference with the
decision of the Trail Court in a casual or
cavalier manner where the other view is
possible should be avoided, unless there
are good reasons for such interference."

19. No criminal history of his parent
has been shown, therefore, in my opinion,
the parent of accused will not be treated as
"known criminal." The father is natural
guardian of delinquent juvenile. The report
of District Probation Officer indicates that
the delinquent was also a student of class
11th at the time of occurrence. Their
another son is already taking education in
Delhi. The above fact indicates that the
parent of delinquent intends to provide
education to their children which is for
betterment in their life.

20. A perusal of District Probation
Officer's report goes to show that nothing
has been written against revisionist in
enquiry regarding him as it has been
provided in Section 12 (1) of the Act. The
bail of the delinquent juvenile could be
rejected only on the exigencies or of the
grounds mentioned in above exception.
Similar view has been expressed in Amit
Kumar Vs. State of U.P. reported in
2010 (3) J.I.C. 768 (All) and Naurang
Vs. State of U.P. 2010 (71) A.C.C. 255
(All).

21. Keeping in view the fact of the
case, arguments advanced by learned
counsel
for
the
parties
and
legal
provisions, I find that in present revision
no ground is available on the record on the
basis of which application of juvenile
could be dismissed. Hence, the revision
deserves to be allowed. The order dated
09.02.2017
passed
by
Principal
Magistrate,
Juvenile
Justice
Board,
Jaunpur and order dated 16.03.2017
passed by Appellate Court are not
sustainable in law. Both the courts below
could not appreciate the legal position
while
rejecting
bail
application
of
delinquent juvenile.

22. Consequently, the revision is
allowed. The aforesaid impugned orders
of Principal Magistrate, Juvenile Justice
Board and Appellate Court are set aside.

23. It is directed that the revisionist
shall be released on bail executing
personal
bond
by
his
natural
guardian/father with two solvent sureties
each in the like amount to the satisfaction
of Principal Magistrate, Juvenile Justice
Board, Jaunpur with the stipulation that on
subsequent dates of hearing, he shall
produce the delinquent juvenile before the
Board during the pendency of the matter.
His guardian/father shall also submit an
undertaking before the Board that he shall
keep proper control and look after the
856 INDIAN LAW REPORTS ALLAHABAD SERIES
juvenile. He will keep away him from the
company of known criminals and will try
to improve his future. In case of default,
the Board would be competent to cancel
the bail of revisionist
after giving
opportunity of hearing to him.
----------
(2020)02ILR A856

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.01.2020

BEFORE
THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Revision No. 2045 of 2017

Smt. Kamla Devi & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Udai Karan Saxena, Sri A.K. Singh
Solanki, Sri Pashali Slolanki

Counsel for the Opposite Parties:
A.G.A., Sri Birendra Singh, Sri Niklank
Kumar Jain, Sri Pardeepta Kr. Shahi, Sri
Pradeep Kumar

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section 397/401 & Indian
Penal Code, 1860-Sections 307,326,504 &
Code of Criminal Procedure,1973-Section
319-accused subsequently impleaded is to be
treated as if he had been an accused when
the court initially took cognizance of the
offence-degree of satisfaction of Court for
summoning the accused ,the test are same as
applicable
for
framing
chargeHence,dismissed.(Para 11 to 14)

B. Power u/s 319 Cr.P.C. can be exercised by
Court against a person in FIR r no
chargesheet is filed by Police against him and
the accused can be summoned only on the
basis of examination-in-chief of witness and
need not wait for cross-examination etc.(Para
11)
Criminal Revision dismissed. (E-6)

List of Cases Cited:-

1. Anil Arya Vs. St. Of U.P. & Ors., Cr.Rev. No.
1216 of 2005

2. Hardeep Singh Vs. St. Of Punjab & Ors.
(2014) 3 SCC 92

3. Dharam Pal & Ors. Vs. St. Of Haryana & Anr.
(2004) 13 SCC 9

(Delivered by Hon'ble Rajendra KumarIV, J).)

1. Heard Sri A.K. Singh Solanki,
learned counsel for revisionists and Sri
Pradeep Kumar, learned counsel Opposite
Party No.2 and learned AGA for State and
perused the material available on record.

2. Revision is directed against the
impugned order dated 11.05.2017, passed
by Additional District and Sessions Judge,
Court No.3, Etah, in Sessions Trial No. 9
of 2016 (Crime No. 630 of 2014) State v.
Sher Bahadur, whereby Trial Court
invoking jurisdiction under Section 319
Cr.P.C. allowed the application paper No.
20(A)
and
summoned
the
accusedrevisionist for facing trial in Crime No.
630 of 2014 under Sections 307, 326 and
504 IPC, Police Station Aliganj, District
Etah.

3. Brief facts giving rise to present
revision are that Informant-Pravendra
Singh submitted a written Tehrir before
the Police Station Aliganj, District Etah
stating that on 22.10.2014 accused-Kamla
Devi provoked other co-accused to open
fire with intention to kill when Shakti
Singh, Bhakti Singh and Sher Bahadur
came there. Accused-Shakti Singh and
Bhakti Singh opened fire on victim