# Shubham @ Kalua Revisionist v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-14
- **Case number:** Criminal Revision No. 1161 of 2020
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shubham-kalua-revisionist-v-state-of-u-p-anr-45400
- **Pages:** 7

## Headnote

308 INDIAN LAW REPORTS ALLAHABAD SERIES
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
397/401
-
Indian Penal Code, 1860-Section 376 &
Juvenile Justice (Care and Protection of
Children) Act, 2000-application-release
of juvenile-revisionist was a juvenile
aged 14 years 6 months on the date of
occurrence and during pendency of the
appeal
he
became
major-revisionist
completed around one year six months
of sentence out of the maximum three
years
institutional
incarceration
permissible for a juvenile, u/s 15(1)(g)
of the Act, 2000-Juvenile justice Board
and
appellate
court
has
erred
in
considering the facts and the true
import of section 12 of the Act,-at the
time of incident the juvenile was clearly
below the age of 15 years and does not
fall into the special category of the
juvenile between the age of 16-18Social Investigation Report does not
show him to be a desperado or misfit for
the
society-the
two
courts
below
disentitled the juvenile to be released on
account of his case falling under each of
the three exceptions of the Section
12(1) of the Act, for which no reason has
been indicated.(Para 3 to 23)

The application is allowed. (E-6)

List of Cases Cited:-

## Text

11 All. Shubham @ Kalua Vs. State of U.P. & Anr.
307
other hand Section 109 may be attracted
even if the abettor is not present when the
offence abetted is committed provided that
he has instigated the commission of the
offence or has engaged one or more
persons in a conspiracy to commit an
offence and pursuant to that conspiracy
some act or illegal omission takes place or
has intentionally aided the commission of
an offence by an act or illegal omission.

24. Turning to charge under Section
120B I.P.C., criminal conspiracy postulates
an agreement between two or more persons
to do or cause to be done an illegal act or
an act which is not illegal, by illegal means.
It differs from the other offences in that
mere agreement is made an offence even if
no step is taken to carry out the agreement.
A conspiracy from its very nature is
generally hatched in secret. It is, therefore,
extremely rare that direct evidence in proof
of conspiracy can be forthcoming. But like
other offences criminal conspiracy can be
proved by circumstantial evidence. Indeed,
in most cases proof of conspiracy is largely
inferential though the inference must be
founded
on
solid
facts,
surrounding
circumstances
and
antecedent
and
subsequent conduct, amongst other factors,
constituting
relevant
material.
The
agreement or understanding may be proved
by necessary implication to do an unlawful
act by unlawful means.

25. Having considered the scope and
ambit of the offence under Section 120B
I.P.C. and applying it on the allegations/
facts, it is categorically alleged that the
accused persons conspired to dupe the bank
by
illegal
means
based
on
forged,
manufactured documents and financial
statements, alleged to have been prepared
by the revisionist. The allegations have to
be proved during trial. The Court while
framing the charge is required to prima
facie assess that the allegations and the
evidence links the accused to the offence.

26. It is settled principle of law that the
Court in exercise of its inherent power under
Section 482 Cr.P.C. would not enter into the
merits of the evidence in support of the charge.
At this stage, only a prima facie opinion is to
be formed whether the ingredients of the
offence alleged against the revisionist is made
out from the material placed on record. The
accused/auditor cannot be absolved of the
offence of conspiracy with the other coaccused of giving an opinion based on
manufactured documents to dupe the bank. It
is a matter to be seen and examined during
trial.

27. Learned counsel for the revisionist
failed to point out any illegality, irregularity or
jurisdictional error in the order impugned.

28. In view thereof, I find no reason to
interfere with the impugned order.

29. The application, being devoid of
merit, is accordingly dismissed.
----------
(2020)11ILR A307
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.10.2020

BEFORE
THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 1161 of 2020

Shubham @ Kalua ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ajay Singh, Sri Amarendra Nath Singh

Counsel for the Opposite Parties:
308 INDIAN LAW REPORTS ALLAHABAD SERIES
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
397/401
-
Indian Penal Code, 1860-Section 376 &
Juvenile Justice (Care and Protection of
Children) Act, 2000-application-release
of juvenile-revisionist was a juvenile
aged 14 years 6 months on the date of
occurrence and during pendency of the
appeal
he
became
major-revisionist
completed around one year six months
of sentence out of the maximum three
years
institutional
incarceration
permissible for a juvenile, u/s 15(1)(g)
of the Act, 2000-Juvenile justice Board
and
appellate
court
has
erred
in
considering the facts and the true
import of section 12 of the Act,-at the
time of incident the juvenile was clearly
below the age of 15 years and does not
fall into the special category of the
juvenile between the age of 16-18Social Investigation Report does not
show him to be a desperado or misfit for
the
society-the
two
courts
below
disentitled the juvenile to be released on
account of his case falling under each of
the three exceptions of the Section
12(1) of the Act, for which no reason has
been indicated.(Para 3 to 23)

The application is allowed. (E-6)

List of Cases Cited:-

1. Kamal Vs St. of Haryana, (2004) 13 SCC
526

2. Takht Singh Vs St. of M.P., (2001) 10 SCC
463,

3. Shiv Kumar @ Sadhu Vs St. of U.P. (2010)
68 ACC 616 LB

4. Dataram Singh Vs St. of U.P. & anr ,(2018)
3 SCC 22

(Delivered by Hon'ble Shamim Ahmed, J.)

Order on Memo of Revision

1. Heard Sri Amarendra Nath Singh,
learned senior counsel assisted by Sri Ajay
Singh, learned counsel for the revisionist as
well as learned A.G.A. appearing for the
State and perused the record.

2. Admit.

3. Notice has already been received by
learned AGA on behalf of State and notice
has already been served upon opposite party
no.2.

4. Summon the lower court record.

5. Put up on 8.12.2020 in the additional
cause list before appropriate Bench for
hearing of the case.

Order on Bail Application

6. Heard learned counsel for the
applicant/revisionist as well as learned AGA
appearing for the State and perused the
record.

7. The present criminal revision has
been filed by the revisionist under Section
53 of the Juvenile Justice (Care and
Protection of Children) Act, 2000 read with
Section 397/401 IPC (in short ''the Act')
against the judgement and order dated
12.3.2020 passed by Additional Sessions
Judge/Fast
Track
Court-1,
Ghaziabad
dismissing Criminal Appeal No. 158 of
2013 (Juvenile Justice Board Ghaziabad vs
State of UP) filed under Section 52 of the
Act and affirming an order of Juvenile
Justice Board, Ghaziabad dated 25.7.2013
passed in Case Crime No.222 of 2002,
under Section 376 IPC, PS Pilakhua
District Ghaziabad by which the revisionist
was directed to be kept in the special home
separately for a period of three years.
11 All. Shubham @ Kalua Vs. State of U.P. & Anr.
309

8. The prosecution case, as per the
F.I.R lodged by the informant, is that on
12.7.2002 at about 3 p.m. his daughter Lata
aged about 7-8 years was taken by the
revisionist Shubham @ Kalua on the
pretext of watching TV where the loud
voice was coming from his house. When
the informant along with Suman w/o
Narendra, Gullu, Dayawati reached the
spot, the accused Kalua ran away from the
spot and the victim informed them that the
revisionist has done wrong act with her.

9. It is submitted by learned counsel
for the revisionist that the revisionist is
innocent and he has been falsely implicated
in the present case. There is no iota of
evidence on record to show that the
revisionist has committed any such offence
as alleged in the FIR and the revisionist
was
never
medically
examined
to
determine the genuineness of the alleged
incident. It is next submitted that PW-4 Dr.
Sushma Yadav who has conducted the
medical examination of the victim has
clearly opined that there is no spermatozoa
found inside or around the vagina and
injured private part. Thus, the prosecution
case is not supported by the medical
evidence. Further, PW-5 Suman has also
not supported the prosecution case and has
stated that on the alleged date of incident
she had never heard any screaming sound
of the victim nor she was found in
unconscious state. The prosecution has not
examined the important witness Smt.
Dayawati deliberately whose presence was
noted at the time of lodging the FIR. It is
further submitted that the revisionist was
below 15 years at the time of alleged
incident and has been falsely implicated
just to pressurize his family members to
marry the alleged victim as the family of
the revisionist holds good financial position
in the society. It is lastly contended that due
to heavy pendency of the cases before this
Court the revision is not likely to be heard
in near future.

10. Learned counsel for the revisionist
further submits that it is not in dispute that
the revisionist was a juvenile aged 14 years
and 6 months on the date of occurrence and
during pendency of the appeal he became
major. The revisionist is in jail since
12.3.2020 and has spent around 7 months
in jail. He has already remained in jail for a
period of about 9 months during trial. Thus,
the revisionist has completed around one
year and six months of the sentence out of
the maximum three years institutional
incarceration permissible for a juvenile,
under Section 15(1)(g) of the Act, 2000.

11. Several other submissions in order
to demonstrate the falsity of the allegations
made against the revisionist have also been
placed forth before the Court. The
circumstances which, according to the
counsel, led to the false implication of the
accused have also been touched upon at
length. It has been assured on behalf of the
revisionist that he is ready to cooperate
with the process of law and shall faithfully
make himself available before the court
whenever required and is also ready to
accept all the conditions which the Court
may deem fit to impose upon him. It has
also been pointed out that in the wake of
heavy pendency of cases in the Court, there
is no likelihood of any early conclusion and
hearing of this revision.

12. Learned counsel for the revisionist
further submits that in the present case, the
Juvenile Justice Board, Ghaziabad vide
order dated 25.7.2013 has directed to send
the revisionist in special home for three
years. Being aggrieved, the revisionist has
preferred an appeal which was also
310 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed vide order dated 12.3.2020.
Hence the present criminal revision has
been filed before this Hon'ble Court mainly
on the following amongst other grounds:

(i) That the appellate court has
erred in not considering the fact that the
medical examination of the revisionist has
never been conducted to determine the
incident which took place and ignored the
same in a very mechanical manner.

(ii) That the prosecution has not
examined
the
important
witness
deliberately,
Smt.
Dayawati
and
the
learned appellate court has passed the
impugned order illegally without taking
into consideration this fact.

(iii) That PW-4 Dr. Sushma
Yadav in her opinion as well as medical
examination has clearly stated that there is
no spermatozoa found on the hymen as per
the pathological report and she has also
stated that the findings of rape may not be
occurred meaning thereby it is not
necessary that the rape took place and
further she has stated that the injury may
be caused out of accident by falling of the
girl. It is clear that no definite opinion of
rape was made and the learned court below
has ignored this fact while passing the
impugned order and failed to consider the
statements and evidence on record and as
such the same is liable to be set aside by
this Hon'ble Court.

(iv) That the ;learned Sessions
Judge Court and Juvenile Justice Board
have failed to appreciate that prosecution
witness No.5 Smt. Suman has clearly stated
in her statements that on the date of alleged
incident at about 3 p.m she did not hear
any voice of screaming and neither Lata
was found unconscious nor any such
incident took place like prosecution story.

(v) That the learned trial court
has erred inasmuch as it has failed to
appreciate that the house of the revisionist
is away from the house of the alleged
victim and in such circumstances it is
highly improbable that the voice of
screaming was not audible to the informant
and others.

(vi) That there was absolutely no
material on record to hold that the release
of the revisionist would likely to bring him
into association with any known criminal
or expose him to moral, physical or
psychological danger or his release would
defeat the ends of justice, yet the courts
below have illegally, arbitrary and on
surmises passed the impugned orders.

(vii) That the courts have erred in
law in not considering the true import of
Section 12 of the Act, 2000 and thus, the
impugned orders passed by the courts
below suffer from manifest error of law
apparent on the face of record.

(viii) That the courts below have
acted quite illegally and with material
irregularity in not properly considering the
case of revisionist in proper and correct
perspective which makes the impugned
orders passed by the courts below non est
and bad in law.

(ix) That bare perusal of the
impugned orders demonstrate that the same
have been passed on flimsy grounds which
have occasioned gross miscarriage of
justice.

13. Learned counsel for the revisionist
has pointed out that the revisionist has by
now done substantial period of institutional
incarceration. The maximum period for
which a juvenile can be incarcerated in
whatever form of detention, is three years,
going by the provisions of Section 15(1)(g)
of the Act, 2000 and Section 18(1)(g) of the
Act, 2015. In support of his contention,
learned counsel for the revisionist has
placed reliance of Hon'ble Apex Court
11 All. Shubham @ Kalua Vs. State of U.P. & Anr.
311
judgment in the case of Kamal Vs. State of
Haryana, 2004 (13) SCC 526 and
submitted that the Hon'ble Apex Court was
pleased to observe in paragraph no. 2 of the
judgment as under :-

"2. This is a case in which the
appellant has been convicted u/s 304-B of
the India Penal Code and sentenced to
imprisonment for 7 years. It appears that
so far the appellant has undergone
imprisonment for about 2 years and four
months. The High Court declined to grant
bail pending disposal of the appeal before
it. We are of the view that the bail should
have been granted by the High Court,
especially having regard to the fact that the
appellant has already served a substantial
period
of
the
sentence.
In
the
circumstances, we direct that the bail be
granted to the appellant on conditions as
may be imposed by the District and
Sessions Judge, Faridabad."

14. Learned counsel for the revisionist
has also placed reliance of Hon'ble Apex
Court judgment in the case of Takht Singh
Vs. State of Madhya Pradesh, 2001 (10)
SCC 463, and submitted that the Hon'ble
Apex Court was pleased to observe in
paragraph no. 2 of the judgment as under:-

"2. The appellants have been
convicted under Section 302/149, Indian
Penal Code by the learned Sessions Judge
and have been sentenced to imprisonment for
life. Against the said conviction and sentence
their appeal to the High Court is pending.
Before the High Court application for
suspension of sentence and bail was filed but
the High Court rejected that prayer
indicating therein that the applicants can
renew their prayer for bail after one year.
After the expiry of one year the second
application was filed but the same has been
rejected by the impugned order. It is
submitted that the appellants are already in
jail for over 3 years and 3 months. There is
no possibility of early hearing of the appeal
in the High Court. In the aforesaid
circumstances the applicants be released on
bail to the satisfaction of the learned Chief
Judicial Magistrate, Sehore. The appeal is
disposed of accordingly."

15. Despite service of notice upon
opposite party no.2 and the time being
granted thrice to file counter affidavit, no one
has appeared on his behalf nor any counter
affidavit has been filed. It appears that the
opposite party no.2 is not interested to contest
the case.

16. Learned AGA has filed counter
affidavit and has opposed the revisionist's
case with the submission that the release of
the revisionist on bail would bring him into
association of some known criminals,
besides, exposing him to moral, physical and
psychological danger. It is submitted that his
release would defeat the ends of justice,
considering that he is involved in a heinous
offence.

17. This Court has carefully considered
the rival submissions of the parties and
perused the impugned orders. The juvenile is
clearly below 15 years of age at the time of
incident and does not fall into that special
category of a juvenile between the age of 16
and 18 years whose case may be viewed
differently, in case, they are found to be of a
mature mind and persons well understanding
the consequences of their actions. The
provisions relating to bail for a juvenile are
carried in Section 12 of the Act, 2000 which
reads as under:

"12. Bail of juvenile.-(1) When
any person accused of bailable or non-
312 INDIAN LAW REPORTS ALLAHABAD SERIES
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 [or placed under the supervision of a
probation officer or under the care of any
fit institution or fit person] but he has 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
psychosocial danger or that his released
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
the person 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."

18. A perusal of the said provision
show that bail for a juvenile, particularly,
one who is under the age of 18 years at the
time of incident, is a matter of course and it
is only in the event that his case falls under
one or the other disentitling categories
mentioned in the provision of sub-Section
(1) of Section 12 of the Act that bail may
be refused. The merits of the case against a
juvenile acquire some relevance under the
last clause of the provision of sub-section
(1) of Section 12 that speaks about the ends
of justice being defeated. The other two
disentitling
categories
are
quite
independent and have to be evaluated with
reference to the circumstances of the
juvenile. Those circumstances are to be
gathered from the Social Investigation
Report, the police report and in whatever
other manner relevant facts enter the
record.

19. What is of prime importance in
this case is that the juvenile, who was a
young boy at the time of incident, has no
criminal history. There is nothing said
against the juvenile, appearing from the
Social Investigation Report that may show
him to be a desperado or misfit in the
society. The two courts below have held
the juvenile disentitled to be released on
account of his case falling under each of
the three exceptions enumerated in the
provision of sub section (1) of Section 12,
for which no reason has been indicated.
That finding, in both the orders impugned,
is based on an ipse dixit, in one case of the
judge and in the other of the Board. Even if
it be assumed that the offence was
committed in the manner alleged, it would
be rather strained logic to hold that release
of the revisionist on bail would lead to the
ends of justice being defeated.

20. This Court in the case of Shiv
Kumar alias Sadhu Vs. State of U.P.
2010 (68) ACC 616(LB) was pleased to
observe that the gravity of the offence is
not relevant consideration for refusing
grant of bail to the juvenile.

21. After perusing the record in the
light of the submissions made at the bar
and after taking an overall view of all the
facts and circumstances of this case, the
nature of evidence, the period of detention
already undergone, the unlikelihood of
11 All. Jagarnath Chauhan Vs. State of U.P. & Anr.
313
early hearing of this revision due to heavy
pendency of criminal cases before this
Court and also in the absence of any
convincing
material
to
indicate
the
possibility of tampering with the evidence
and in view of the larger mandate of the
Article 21 of the Constitution of India and
the dictum of Apex Court in the case of
Dataram Singh vs. State of UP and
another, (2018) 3 SCC 22 and the view
taken by the Apex Court in the cases of
Kamal Vs. State of Haryana (supra),
Takht Singh Vs. State of Madhya
Pradesh (supra) and Shiv Kumar alias
Sadhu Vs. State of U.P. (supra)., this
Court is of the view that the revisionist be
be released on bail during the pendency of
the present revision.

22. In the result, the bail application
of the revisionist stands allowed.

23. Let the revisionist, Shubham @
Kalua be released on bail in Case Crime
No. 222 of 2002, under Section 376 IPC
Police Station Pilakhua District Ghaziabad
upon his executing a personal bond with
two solvent sureties of his relatives each in
the like amount to the satisfaction of the
Juvenile Justice Board, Ghaziabad.

24. On acceptance of bail bonds and
personal bonds, the lower court concerned
shall transmit photostat copies thereof to
this Court for being kept on the record.

25. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or the certified copy issued by
the Registry of the High Court, Allahabad.

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

27.

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.

28. It may be observed that in the
event of any breach of the aforesaid
conditions, the court below shall be at
liberty to proceed for the cancellation of
revisionist's bail.

29. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merits
of the case.
----------
(2020)11ILR A313
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Revision No. 1455 of 2020

Jagarnath Chauhan ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ramashray Tripathi

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

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
397/401
&
Indian Penal Code, 1860-Section- 363,366
& Protection of Children From Sexual
Offence(POCSO) Act, 2012-section 7/8determination of the age of the victim-two
different marksheets were produced-the
law is well settled that in case of dubious