# Parvez Revisionist v. State of U.P. and Anr Opp. Parties

- **Citation:** (2014) 1 ILRA 171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-31
- **Bench:** Het Singh Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parvez-revisionist-v-state-of-u-p-and-anr-opp-parties-42751
- **Pages:** 7

## Headnote

A.G.A.

Juvenile
Justice(Care
&
Protection
of
children)
Act
2000-Section-53-Revisionagainst order by appellant court-rejecting
prayer for bail-offence under section 376
IPC-at the time of occurrence revisionist
was minor-trail commenced like regular
criminal-plea of juvenile taken on highly
belated stage-revisionist already in jail for
more than 5 years-very ambit of act itself
rehabilitory in nature-u/s 15 of act board
being satisfied an enquiry-the accused was
minor-ought to have send special home for
period of 3 years only-held-judge passed
lop-sided order confining order of refusal of
bail-both order set-a-side-considering more
than 5 years detention-be released from
custody by forthwith.

Held: Para-17-
one
more
point
that
surfaces
for
consideration is that the very scheme of
the Act 2000 is rehabilitatory in nature and
not adversarial. Children Act has been
enacted to protect young children from the
consequences of their criminal acts on the
footing that their mind at that age could
not be said to be mature for imputing
mens rea as in the case of an adult. It is for
this reason that a juvenile would undergo
inquiry by the Board which is not in the
form of regular trial irrespective of the
gravity of the offence. As per Section 15 of
the Act 2000 where a Board after having
satisfied on inquiry that a juvenile has
committed
an
offence,
then
notwithstanding anything to the contrary
of any other law for the time being in
force, may, if it so thinks fit, make an order
at the most directing the juvenile to be
sent to a Special Home for a period of
three years only. In the case in hand, the
revisionist has been in detention since
06.1.2009. As mentioned earlier, he has
already undergone a period of more than
the maximum period for which a juvenile
may be confined to a special home. Thus,
at the time of rejection of the bail by the
Sessions Judge in appeal, his detention
was illegal.

Case Law discussed:
2011(13) SCC 211; 2011(13) SCC 744.

## Text

1 All] Parvez Vs. State of U.P. & Anr.
171
as res judicata on all points which might
and ought to have been raised by the
defendant. Section 11, C.P.C. 1908 also
uses the same words ''might' and ''ought'
in its explanation-iv. Same view has been
taken by the Supreme Court in Raj
Lakshmi Dasi and Ors. v. Banamali Sen
and Ors, AIR 1953 SC 33.

9. Accordingly, the courts below
rightly held that earlier ex parte judgment
declaring Munshi Raza and others to be
bhoomidhars in possession of the disputed
land operated as res judicata. Petitioner did
not file any application for setting aside the
said judgment and decree of 1968.

10. Accordingly, I do not find any
error in the impugned order. Writ Petition
is therefore dismissed.
--------

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2014

BEFORE
THE HON'BLE HET SINGH YADAV, J.

Criminal Revision 3679 of 2013

Parvez... Revisionist
Versus
State of U.P. and Anr.... Opp. Parties

Counsel for the Petitioner:
Sri Sushil Kumar Pandey

Counsel for the Respondents:
A.G.A.

Juvenile
Justice(Care
&
Protection
of
children)
Act
2000-Section-53-Revisionagainst order by appellant court-rejecting
prayer for bail-offence under section 376
IPC-at the time of occurrence revisionist
was minor-trail commenced like regular
criminal-plea of juvenile taken on highly
belated stage-revisionist already in jail for
more than 5 years-very ambit of act itself
rehabilitory in nature-u/s 15 of act board
being satisfied an enquiry-the accused was
minor-ought to have send special home for
period of 3 years only-held-judge passed
lop-sided order confining order of refusal of
bail-both order set-a-side-considering more
than 5 years detention-be released from
custody by forthwith.

Held: Para-17-
one
more
point
that
surfaces
for
consideration is that the very scheme of
the Act 2000 is rehabilitatory in nature and
not adversarial. Children Act has been
enacted to protect young children from the
consequences of their criminal acts on the
footing that their mind at that age could
not be said to be mature for imputing
mens rea as in the case of an adult. It is for
this reason that a juvenile would undergo
inquiry by the Board which is not in the
form of regular trial irrespective of the
gravity of the offence. As per Section 15 of
the Act 2000 where a Board after having
satisfied on inquiry that a juvenile has
committed
an
offence,
then
notwithstanding anything to the contrary
of any other law for the time being in
force, may, if it so thinks fit, make an order
at the most directing the juvenile to be
sent to a Special Home for a period of
three years only. In the case in hand, the
revisionist has been in detention since
06.1.2009. As mentioned earlier, he has
already undergone a period of more than
the maximum period for which a juvenile
may be confined to a special home. Thus,
at the time of rejection of the bail by the
Sessions Judge in appeal, his detention
was illegal.

Case Law discussed:
2011(13) SCC 211; 2011(13) SCC 744.

(Delivered by Hon'ble Het Singh Yadav, J.)

1. This criminal revision under
section 53 of the Juvenile Justice (Care
and Protection of Children) Act, 2000 (in
short 'the Act 2000') has been preferred
172 INDIAN LAW REPORTS ALLAHABAD SERIES
against the order dated 6.12.2013 passed
by the learned Sessions Judge, Muzaffar
Nagar in Criminal Appeal No. 101 of
2013 ( Gayyur Khan Vs. State of U.P.)
arising out of rejection of bail prayer of
juvenile, Parvez @ Parvez Khan.

2. Heard Sri Sushil Kumar Pandey,
learned counsel for the revisionist and
learned A.G.A. for the State at prolix
length.

3. The facts which are relevant and
necessary for the disposal of the revision,
briefly stated, are that on Jan. 04, 2009, first
informant lodged F.I.R. alleging therein that
the revisionist had sexually assaulted his
minor daughter aged about 4 years. Pursuant
thereto, case was registered at crime no.
05/2009 under section 376 I.P.C. against the
revisionist at P.S. Adarshmandi, Distt.-
Muzaffarnagar(now
Distt.-Shamli).
The
revisionist was arrested on Jan. 05, 2009 and
was confined in jail .He was dealt with the
criminal justice system as applicable for
adults. The revisionist's father however, for
the first time on Feb.17, 2010 raised claim of
his being juvenile before the court of Addl.
Sessions Judge, Muzaffarnagar where the
trial was pending by invoking provision of
section 7-A of the Act 2000. The trial court
made an enquiry as per rules applicable and
after inordinate delay recorded finding on
Sept.07, 2013 that the revisionist was a
juvenile on the date of commission of
offence, his age being 16 years 8 months and
2 days. The trial court accordingly, processed
the matter for transfer of the case to the
Juvenile Justice Board, Muzaffarnagar (in
short 'the board') for enquiry and for passing
appropriate order.

4. The revisionist's father moved an
application before the Board under
Section 12 of the Act 2000 seeking his
release on bail which was rejected by the
Board on 21.10.2013 substantially on the
ground of gravity of offence which is
alleged to have been committed.

5. It would appear that an appeal
was preferred under Section 52 of the Act
2000 which was dismissed by the learned
Sessions Judge observing that juvenile in
conflict with law kidnapped a female
child aged about 4 years and raped her as
a result of which she received injuries on
her private part, further observing that this
indicated his criminal proclivities. It was
further observed that he, as a juvenile,
was smitten with libido-psyche and could
go to any extent to gratify his lust, that his
family members had no commanding
control over him and that in such a view,
if the appellant was set at liberty on bail,
it would not only be an instance of
miscarriage of justice but would push the
appellant
in
further
moral
and
psychological degradation. The appellate
court also held the view that the
juvenile/appellant being above 16 years of
age, was conscious of his illegal criminal
activity and by this reckoning, his case
fell in more than one clauses of Exception
as is provided under Section 12 of the
Act.

6.

The
quintessence
of
the
arguments advanced across the bar by Sri
Pandey is that the very scheme of the Act
2000 is rehabilitatory in nature and not
adversarial, that the bail to a juvenile in
conflict with law is a rule and rejection is
an exception that the bail prayer of a
juvenile can only be refused on the
grounds mentioned in Section 12 of the
Act 2000 itself and no other grounds and
that in this case, the Board as well as the
learned Sessions Judge in the appeal
preferred under Section 52 of the Act
1 All] Parvez Vs. State of U.P. & Anr.
173
2000 have refused bail to the revisionist
only on the ground of gravity of the
offence alleged to have been committed.
He further argued that the general law of
bail applicable to the adults cannot be
imported
for
application
while
considering the bail prayer of a juvenile.
By this reckoning, it is reasoned, refusing
bail to the juvenile by the Board and the
learned Sessions Judge are out of ambit of
Section 12 of the Act 2000.

7. The next limb of argument
advanced across the bar by Sri Pandey is
that the learned Sessions Judge while
dismissing
the
appeal
has
made
observations
and
derogatory
remarks
against the revisionist without any material
and prima facie evidence on record, are
fraught with deleterious impact on the
inquiry being conducted by the Board on
the charges levelled upon the revisionist. He
laid much emphasis that the Board as well
as the learned Sessions Judge have failed to
consider the peculiar aspect of this case that
the revisionist has been languishing in jail
since 06.1.2009, and thus, he has already
spent a period of more than 3 years in
incarceration. As per Section 15 of the Act
2000, the Board if satisfied on inquiry that
the juvenile has committed an offence, then,
notwithstanding anything to the contrary
contained in any other law for the time
being in force, if it is so thinks fit, it can
make an order directing the juvenile to be
sent to the Special Home for a maximum
period of three years. Thus, the revisionist at
the time of moving bail application before
the Board had already suffered incarceration
for 4 years 9 months and 15 days in jail
which is more than the maximum period for
which a juvenile may be confined in special
home. This bespeaks, it is vociferously
submitted, the Board and the learned
Sessions Judge had rejected the bail prayer
of the revisionist in whimsical and wanton
manner even de-hors the rules and
procedure of the Act 2000.

8. Learned A.G.A. very fairly
conceded to the facts that the revisionist
who has been declared juvenile in conflict
with law, has already undergone excess
period of detention maximum awardable
to a juvenile in conflict with law by the
Board after concluding the inquiry as
envisaged under Section 15 of the Act
2000.

9. I have given my careful
consideration to the submissions made
across the bar as above by learned counsel
of either sides and have also been taken
through the materials on record.

10. In this case, it would appear,
initially
the
revisionist
was
being
prosecuted under the general criminal law
applicable to the adults. His father raised
the claim of juvenility before the trial
court. The trial court made an inquiry and
ultimately, pronounced him a juvenile,
invoking the procedure provided under
Section 7-A of the Act 2000 as
aforementioned . The the case of
revisionist was referred to the Board for
conducting
inquiry
and
passing
appropriate order in accordance with the
provisions of the Act 2000. When the
revisionist was brought before the Board,
his father moved the application under
Section 12 of the Act 2000 seeking his
release on bail. His bail application was
rejected by the Board and the appeal
preferred under Section 52 of the Act
2000 was also rejected by the learned
Sessions Judge. Hence this revision.

11. Before delving into the propriety
of the bail rejection orders passed by the
174 INDIAN LAW REPORTS ALLAHABAD SERIES
Board as well as by the lower appellate
court, it is expedient to have a look at the
bail provisions provided under Section 12
of the Act 2000 which reads thus:-

"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 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 subsection (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 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."

12- On critical analysis of the above
section it may be summarised as under:

(i) Gravity of offence is immaterial
for considering bail prayer of juvenile.

(ii) Bail provisions contained in the
Code of Criminal Procedure, 1973 or in
any other law for the time being in force,
as applicable in case of adults, shall have
no application.

(iii) Release of a juvenile on bail is a
rule, and refusal is an exception.

(iv) Bail to a juvenile can be refused
only on the grounds as mentioned in the
section itself and not on any other ground
out of ambit and scope of the section.

(v) The grounds of refusal of bail as
provided in the section shall not be
readily inferred but there must be some
material and/or evidence on record to
substantiate the refusal.

(vi) The bail provisions contained in
Act-2000 have an overriding effect over
the general criminal justice system
applicable to the adult.

11. A juvenile shall not be released
on bail, if there appear reasonable
grounds for believing that (i) the release is
likely to bring him into association with
any known criminal or; (ii) expose him to
moral, physical and psychological danger
or; (iii) his release would defeat the ends
of justice. The Board has refused bail to
the revisionist on the ground that he has
committed rape upon a minor girl aged
about 4 years further observing that his
release is likely to bring him into
association with any known criminal and
his release is likely to expose him to
moral, physical and psychological danger
and further that his release would defeat
the ends of justice. I have very closely
scrutinised the order and there is not a
whisper in the order as to on what basis
there appear reasonable grounds for
1 All] Parvez Vs. State of U.P. & Anr.
175
believing that his release is likely to bring
him into association with any known
criminal or expose him to moral, physical
and psychological danger and that his
release would defeat the ends of justice.
Thus, the ground mentioned in the bail
rejection order of the Board are based on
guess work and hypothetical consideration.

12 .This Court, in a catena of
decisions, has categorically held that there
must be some material and evidence on
record to refuse bail prayer of a juvenile for
believing that his release was likely to bring
him into association with any known
criminal or would expose him to moral,
physical and psychological danger and that
his release would defeat the ends of justice.
The bail to a juvenile cannot be refused on
hypothetical considerations. The Board also
failed to consider that the juvenile had
already undergone a period more than
maximum period for which juvenile may be
confined in special home, even if the Board
is satisfied on inquiry that he has committed
an offence. In this way, the Board has
passed a lop-sided order even ignoring that
the detention of the revisionist at the time
when his bail prayer was refused, was
illegal and in violation of his fundamental
rights conferred under Article 21 of the
Constitution of India. The bail prayer of the
revisionist was refused in the instant case as
if he was an inveterate adult criminal to be
dealt with under the general criminal law.
Thus, the Board refused the bail prayer of
the revisionist in antagonism of the settled
principles governing the bail matters of a
juvenile in conflict with law.

13. In appeal under Section 52 of the
Act 2000, the learned Sessions Judge has
also committed the self-same illegality
while rejecting the appeal and confirming
the bail rejection order passed by the Board.

14. From a perusal of the impugned
order passed by the learned Sessions
Judge, it would transpire that the bail was
declined to the revisionist attended with
the observation that juvenile kidnapped a
female child aged about 4 years and
ravished her as a result of which she
sustained injuries on her private part.
Thus, the learned Sessions Judge, too,
refused the bail to the revisionist treating
the offence as serious and grave crime.
This does not constitute a ground for
rejection of bail as mandated by section
12 of the Act 2000 but constitutes a
ground for rejection of bail in a case
involving an adult under the general
criminal law. It appears that the Sessions
Judge while deciding the appeal has
slurred over the fundamental objects for
which the Act 2000 was enacted possibly
on account of her inability to adapt to a
system which is, however, different from
the general criminal law.

15. In connection with the case in
hand, it would be appropriate to refer to
the observations made by the apex court
in Hari Ram Vs. State of Rajsthan and
another, 2011 (13) SCC 211 which I feel,
are truly attracted in this case :-

"2. The said law which was enacted
to deal with offences committed by
juveniles, in a manner which was meant
to be different from the law applicable to
adults, is yet to be fully appreciated by
those who have been entrusted with the
responsibility of enforcing the same,
possibly on account of their inability to
adapt to a system which, while having the
trappings of the general criminal law, is,
however, different there from.

3. The very scheme of the aforesaid
Act is rehabilitatory in nature and not
176 INDIAN LAW REPORTS ALLAHABAD SERIES
adversarial which the courts are generally
used to. The implementation of the said
law, therefore, requires a complete change
in the mind-set of those who are vested
with the authority of enforcing the same,
without
which
it
will
be
almost
impossible to achieve the objects of the
Juvenile Justice Act, 2000."

16. The observations of the Learned
Sessions Judge that the juvenile has
ravished the modesty of a 4 years girl
child, and that this exhibits his criminal
proclivities and that he, even as a juvenile
has a libido-psyche and can go to any
extent to soothe his lust, are based on
hypothetical grounds without there being
any shred of evidence on record at that
stage. There is not an iota of material or
evidence at the stage of bail on record to
make room for such observation. In my
considered view, the observations made
by the Sessions Judge in the order would
certainly
be
fraught
with
the
consequences which may impinge upon
the inquiry pending against the revisionist
before the Board. The above observations
made by the Sessions Judge, I feel
constrained to say, are based on guess
work and hypothetical consideration.
Moreover,
these
observations
are
whimsical as there is no shred of evidence
on record to support them. The Sessions
Judge while deciding the appeal of a
juvenile in bail matters, had no business
to
pass
such
unwarranted
remarks
stigmatizing a juvenile. It is worth
mentioning here that one of the objects
and reasons for the enactment of the Act
2000 is to minimise the stigma upon the
juvenile
in
keeping
with
his
developmental needs.

17. One more point that surfaces for
consideration is that the very scheme of
the Act 2000 is rehabilitatory in nature
and not adversarial. Children Act has
been enacted to protect young children
from the consequences of their criminal
acts on the footing that their mind at that
age could not be said to be mature for
imputing mens rea as in the case of an
adult. It is for this reason that a juvenile
would undergo inquiry by the Board
which is not in the form of regular trial
irrespective of the gravity of the offence.
As per Section 15 of the Act 2000 where
a Board after having satisfied on inquiry
that a juvenile has committed an offence,
then notwithstanding anything to the
contrary of any other law for the time
being in force, may, if it so thinks fit,
make an order at the most directing the
juvenile to be sent to a Special Home for
a period of three years only. In the case in
hand, the revisionist has been in detention
since 06.1.2009. As mentioned earlier, he
has already undergone a period of more
than the maximum period for which a
juvenile may be confined to a special
home. Thus, at the time of rejection of the
bail by the Sessions Judge in appeal, his
detention was illegal.

18. In the case of Amit Singh Vs.
State of Maharashtra and another, 2011
(13) SCC 744, the apex court held thus:

"The claim of juvenility can be
raised before any court at any stage, even
after the final disposal of the case. Section
20 and 7-A set out the procedure which
the court is required to adopt, when such
claim
of juvenility
is
raised. The
petitioner was a juvenile in terms of the
2000 Act because he had not completed
18 years of age and is entitled to get the
benefit of provisions under Ss. 2(l), 7-A,
20 and 64 of the Act. The petitioner has
already undergone 12 years in jail since
1 All] Laxman Prasad Vs. State of U.P.
177
then, which is more than the maximum
period for which a juvenile may be
confined to a special home. Under these
circumstances, the petitioner is directed to
be released from custody forthwith."

19. The case of the revisionist, in my
opinion, is on a better footing qua the above
cited case. In this case, the offence was
committed
on
4.1.2009
much
after
incorporation of the Act No. 33 of 2006 in the
Act 2000. This brooks no dispute that the
revisionist was a juvenile on the date when
offence was committed. Thus, certainly his
case was to be dealt with under the provisions
of the Act 2000. But unfortunately for him, he
was subjected to trial under the general
criminal law applicable to the adults and was
declared juvenile only on Sept. 7, 2013 after a
period of more then three years from the date
of moving application by his father, under
Section 7-A of the Act 2000. By all
reckoning, this constitutes a serious lapse on
the part of the authorities of criminal
administration of justice. What shocks the
conscience of this Court is that the juvenile
was in detention since 06.1.2009 and thus he
had already undergone a period of more than
three years in detention by the time, his bail
prayer and the appeal against his bail rejection
orders were made. This leaves no manner of
doubt that the Sessions Judge had passed the
lop-sided order in confirming the bail refusal
order rendered by the Juvenile Board,
blissfully oblivious of the fact that the
principles of bail of an adult as per the Code
are not attracted in a case of juvenile, and in
complete antagonism of the settled principles
governing the bail matter of a juvenile as set
forth in Section 12 of the Act 2000.

20. The revision accordingly,
succeeds. The order of the Board dated
21.10.2013 passed in Case Crime No. 5 of
2009, under Section 376 I.P.C., P.S.-
Adarsh Mandi, Shamli, District-Shamli
and the impugned order of the Sessions
Judge, Muzaffarnagar, dated 6.12.2013
passed in Criminal Appeal No. 101 of
2013 are hereby set aside.

21. Since, the revisionist (a juvenile
in
conflict
with
law)
has
already
undergone a period of more than 5 years
in detention/Special Home, which is more
than maximum period for which a
juvenile may be confined to a Special
Home, where a Board is satisfied on
inquiry that he has committed the offence,
it is ordered that the revisionist-Parvez
would be released from the custody
forthwith, if not wanted in any other case.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.01.2014

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Bail (Second) No. 4707 of 2013

Laxman Prasad... Petitioner
Versus
State of U.P..... Respondent

Counsel for the Petitioner:
Sri Jyotindra Misra, Sri Sunil Dixit

Counsel for the Respondent:
Sri Sharad Dixit-AGA, Sri K.N. Mishra

Cr.P.C.-Section
437(i)(ii)-Second
Bailoffence
under
section
302-weapon
recovered as pointed out by applicanthaving criminal history-parity with coaccused-can not be claimed-as the coaccused has no criminal history-apart from
that-the witness are afraid due to twice
conviction of applicant-incident occurred to
create
pressure-for
withdrawl
of
case
relating
to
property-can
not
be
said
apprehension
in
mind
of
prosecution