# Shyamu (Juvenile) Revisionist (In Jail) v. State of U.P. & Anr

- **Citation:** (2020) 9 ILRA 1007
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-07
- **Case number:** Criminal Revision No. 4743 of 2019
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyamu-juvenile-revisionist-in-jail-v-state-of-u-p-anr-45901
- **Pages:** 11

## Headnote

A. Criminal Law - Bail plea - Juvenile
Justice (Care and Protection of Children)
Act, 2015 - Section 12, 18(1)(g), 101 -
Indian Penal Code, 1860 - Sections 498-A,
304-B, 323 - Dowry Prohibition Act, 1961:
Section 3/4.

Juvenile Justice Act, 2015 - Section
18(1)(g) - Right of a juvenile to be
released
on
bail
where
a
similarly
circumstanced adult offender had been
extended that liberty - The maximum
period for which a juvenile can be
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
incarcerated
in
whatever
form
of
detention, is three years. In the present case
there appears to be no distinguishing feature
from the case of co-accused Satyapal and
Vijendra, who are adult offenders circumstanced
identically as the revisionist. There is no
justification to hold the revisionist not entitled to
the liberty of bail. The offence on its own terms
may be heinous but the role of the revisionist,
as well as the other accused, is based prima
facie on weak circumstantial evidence. It is also
taken note of by this Court that the revisionist
has by now done more than half of institutional
incarceration. (Para 16, 18)

B. Juvenile Justice Act, 2015 - Section 12 -
Gravity of the offence is not relevant
consideration for refusing grant of bail to
the juvenile - 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 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
S.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. (Para 16, 17)

C. Constitution of India - Article 14 - It is
an enduring principle that a construction
that lends a statute to challenge about its
constitutionality should be eschewed and
one that saves and upholds its vires is to
be adopted - 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

## Text

9 All. Shyamu (Juvenile) Vs. State of U.P. & Anr.
1007
Station Phoolpur District Prayagraj 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, Prayagraj subject to
the following conditions:

(i) That the natural guardian/
father, Radhey Shyam 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,
Radhey Shyam will report to the District
Probation Officer on the first Wednesday of
every calendar month commencing with the
first Wednesday of October, 2020 and if
during any calendar month the first
Wednesday falls on a holiday, then on the
next 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, Prayagraj 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 or the certified copy issued by
the Registry of the 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.

20. However, considering the peculiar
facts and circumstances of the case, the
court below is directed to make every
possible endeavour to conclude the trial of
the aforesaid case within a period of four
months from today without granting
unnecessary adjournments to either of the
parties.
----------
(2020)09ILR A1007
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.08.2020

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 4743 of 2019

Shyamu (Juvenile) ...Revisionist (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ashwini Kumar Awasthi, Sri Atharva
Dixit, Sri Manish Tiwary

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

A. Criminal Law - Bail plea - Juvenile
Justice (Care and Protection of Children)
Act, 2015 - Section 12, 18(1)(g), 101 -
Indian Penal Code, 1860 - Sections 498-A,
304-B, 323 - Dowry Prohibition Act, 1961:
Section 3/4.

Juvenile Justice Act, 2015 - Section
18(1)(g) - Right of a juvenile to be
released
on
bail
where
a
similarly
circumstanced adult offender had been
extended that liberty - The maximum
period for which a juvenile can be
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
incarcerated
in
whatever
form
of
detention, is three years. In the present case
there appears to be no distinguishing feature
from the case of co-accused Satyapal and
Vijendra, who are adult offenders circumstanced
identically as the revisionist. There is no
justification to hold the revisionist not entitled to
the liberty of bail. The offence on its own terms
may be heinous but the role of the revisionist,
as well as the other accused, is based prima
facie on weak circumstantial evidence. It is also
taken note of by this Court that the revisionist
has by now done more than half of institutional
incarceration. (Para 16, 18)

B. Juvenile Justice Act, 2015 - Section 12 -
Gravity of the offence is not relevant
consideration for refusing grant of bail to
the juvenile - 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 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
S.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. (Para 16, 17)

C. Constitution of India - Article 14 - It is
an enduring principle that a construction
that lends a statute to challenge about its
constitutionality should be eschewed and
one that saves and upholds its vires is to
be adopted - 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. (Para 16)

D. Constitution of India - Article 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
early conclusion of trial 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, this Court is of the view that the present
criminal revision may be allowed and the
revisionist may be released on bail. (Para 19)

Revision allowed. (E-4)

Precedent followed:

1. Kamal Vs St. of Har., (2004) 13 SCC 526
(Para 11, 19)

2. Takht Singh Vs St. of M.P., (2001) 10 SCC
463 (Para 12, 19)

3. Dharmendra (Juvenile) Vs St. of U.P. & ors.,
[2018 (7) ADJ 864] (Para 16, 19)

4. Japani Sahoo Vs Chandra Sekhar Mohanty,
(2007) 7 SCC 394 (Para 16, 19)

5. Shiv Kumar @ Sadhu Vs St. of U.P., 2010
(68) ACC 616 (LB) (Para 17, 19)

6. Dataram Singh Vs St. of U.P. & anr., (2018) 3
SCC 22 (Para 19)

Present revision is against the judgment
and order dated 02.11.2019, passed by
Special Judge (POCSO Act)/Additional
Sessions
Judge,
Mathura
dismissing
Juvenile Criminal Appeal No. 68 of 2019
9 All. Shyamu (Juvenile) Vs. State of U.P. & Anr.
1009
and affirming an order of Juvenile Justice
Board, Mathura dated 07.08.2019 refusing
the bail plea to the revisionist.

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

1. This revision is directed against the
judgment and order dated 2.11.2019 passed
by Special Judge (POCSO Act)/Additional
Sessions Judge, Court No.9, Mathura
dismissing Juvenile Criminal Appeal No.68
of 2019 (Shyamu vs State of UP and
another), filed under Section 101 of the
Juvenile Justice (Care and Protection of
Children) Act, 2015 (for short ''the Act')
and affirming an order of Juvenile Justice
Board, Mathura dated 7.8.2019 refusing the
bail plea to the revisionist in Case Crime
No.489 of 2018 under Sections 498A,
304B, 323 IPC and Section 3/4 Dowry
Prohibition Act, Police Station Barsana
District Mathura.

2. Heard Sri Manish Tiwary, learned
senior Advocate assisted by Sri Atharva
Dixit, learned counsel for the revisionist,
learned A.G.A. appearing for the State and
perused the record.

3. The prosecution case, as per the
version of the FIR, is that the marriage of the
deceased of the present case namely Smt.
Neetu, who happens to be the daughter of the
first informant of the present case namely
Ramesh Chandra was solemnized with the
brother of the revisionist namely Satyapal on
25.4.2015 and allegedly after the marriage
the husband of the deceased namely Satyapal,
mother-in-law of the deceased namely Vimla
Devi, father-in-law of the deceased namely
Vijendra and the revisionist used to torture
the revisionist in lieu of demand of dowry.

4. It has been further alleged that on
12.10.2018 the husband of the deceased
namely
Satyapal
informed
the
first
informant over the phone that in a cylinder
blast the deceased of the present case Smt.
Neetu has sustained injuries and she has
been admitted in hospital and upon
receiving
the
said
information
the
informant reached the hospital where he
was informed by the deceased that it was
the co-accused Vimla Devi who had set her
ablaze by pouring kerosene oil on her with
the help of other persons. The FIR was
initially lodged on 13.10.2018 under
Sections 498A, 323, 326 IPC and Section
3/4 Dowry Prohibition Act which after the
death of the deceased was converted to
Section 498A, 304B, 323 IPC and Section
3/4 Dowry Prohibition Act on 25.10.2018.

5. Learned counsel for the revisionist
further submits that the revisionist is
innocent and has been falsely implicated in
the present case. The revisionist has no
concern with the demand of dowry and he
is not beneficiary of the same. No specific
role has been assigned to revisionist
regarding demand of dowry or treating the
deceased with cruelty for non-fulfilment of
demand of dowry. It is further submitted
that the entire allegations levelled by the
prosecution
are
entirely
false
and
preposterous and hold no iota of truth in
them. In the FIR merely vague and
omnibus allegations regarding demand of
dowry have been made by the first
informant and it has not at all been
mentioned as to what was the demand
being made by the accused persons from
the deceased.

6. Learned counsel for the revisionist
further submits that after the incident the
husband immediately admitted his wife in
the hospital where her dying declaration
was recorded on 12.10.2018 wherein she
had stated that she was set ablaze by her
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
mother-in-law Smt. Vimla Devi and the
revisionist has been assigned the role of
being present on the spot. Subsequently, on
18.10.2018 in the statement of the deceased
under Section 161 Cr.P.C. collective role of
beating has been assigned to all the accused
persons.

7. Learned counsel for the revisionist
further submits that even if the dying
declaration recorded by the Magistrate is
believed to be true even then the revisionist
has been assigned the role of being present
on the spot and no active role has been
attributed to the revisionist. The present
case is one of an accidental death where, on
the unfortunate day the deceased caught
fire
as
a
result
of
cylinder
blast,
information of which was immediately
given by the husband of the deceased i.e.
brother of the revisionist to the first
informant. He further submits that the
investigating officer of the present case has
not
collected
the
primary
medical
examination papers of deceased Smt. Neetu
which could have unearthed the truth and
moreover in the absence of the opinion of
the doctor conducting the post mortem
examination report nor any finding of
kerosene oil present on the body of the
deceased, it would be wrong to infer that
the death of the deceased was caused by
setting her ablaze after pouring kerosene oil
on her.

8. Learned counsel for the revisionist
further submits that it is not in dispute that
the revisionist is a juvenile as he has
already been declared juvenile by Juvenile
Justice Board, Mathura vide order dated
11.7.2019 by placing reliance upon his
educational certificate. The revisionist was
a juvenile aged 14 years, 9 months and 11
days on the date of occurrence. He was,
thus, clearly below 16 years of age. He is in
jail since 20.10.2018 in connection with the
present crime and has completed more than
half of the sentence out of the maximum
three
years
institutional
incarceration
permissible for a juvenile, under Section
18(1)(g) of the Act. It is submitted with
much emphasis that co-accused Satyapal,
husband of the deceased and Vijendra,
father-in-law of the deceased, who are
adults and similarly circumstanced as the
revisionist, have been admitted to bail by
this Court vide orders dated 26.2.2019 and
16.5.2019 passed in Criminal Misc. Bail
Application Nos. 7980 of 2019 and 20636
of 2019 respectively, filed as Annexure-8
to the affidavit. It is argued that the
revisionist being a minor, cannot be held in
institutional incarceration any further once
co-accused, similarly circumstanced, have
been admitted to bail. Further submission is
that the case of the revisionist is not on
worse footing than that of the co-accused,
therefore on principles of parity also the
revisionist be released on bail.

9. Learned counsel for the revisionist
further submits that thereafter the revisionist
applied for bail before the Juvenile Justice
Board, Mathura, upon which a report from
the District Probation Officer was called for.
The bail application of the revisionist was
rejected vide order dated 7.8.2019, being
aggrieved, the revisionist preferred an appeal
under Section 101 of the Act, which was also
dismissed vide order dated 2.11.2019. Hence
the present criminal revision has been filed
before this Hon'ble Court mainly on the
following amongst other grounds:

(i) That the bail application of the
revisionist was rejected by the court below
in a very cursory and arbitrary manner.

(ii) That the revisionist, who is
juvenile, is wholly innocent and has been
9 All. Shyamu (Juvenile) Vs. State of U.P. & Anr.
1011
falsely implicated by the first informant in
the present case.

(iii) That the courts below have
not appreciated the report of the District
Probation Officer in its right perspective.

(iv) That the courts below have
failed to appreciate the fact that the
prosecution in the first information report
has not at all stated as to what demand of
dowry was being raised by the accused
persons.

(v) That the courts below have
also failed to appreciate the fact that there
are stark discrepancies in the statements of
the deceased recorded by the investigating
officer and the Magistrate.

(vi) That the courts below have
failed to appreciate the fact that there are
stark discrepancies in the statement of the
deceased and the statement of the first
informant regarding the demand of dowry
as the deceased in her statement states
about demand of a bike and cash being
made by the accused persons while the first
informant does not even make a whisper
about any demand of a motorcycle.

(vii) That the courts below have
also failed to appreciate the fact that the
revisionist being brother-in-law could
never have been a beneficiary if the alleged
demand raised by the accused persons was
fulfilled by the family members of the
deceased.

(viii) That if the dying declaration
recorded by the Magistrate is believed to
be true, even then the revisionist has been
assigned the role of being present on the
spot and no active role has been attributed
to him.

(ix) That the present case is one
of an accidental death where on the
unfortunate day the deceased caught fire as
a result of cylinder blast, information of
which was immediately given by the
husband of the deceased i.e. brother of the
revisionist to the first informant.

(x)
That
the
information
regarding the unfortunate incident was
given by the husband of the deceased and it
was in fact he who along with the help of
the other family members including the
revisionist took the deceased to the hospital
and got her admitted in the hospital where
she unfortunately succumbed to the injuries
sustained.

(xi) That the investigating officer
of the present case has not collected the
primary medical examination papers of
deceased Smt. Neetu which could have
unearthed the truth and moreover in the
absence of the opinion of the doctor
conducting the post mortem examination
report nor any finding of kerosene oil
present on the body of the deceased it
would be wrong to infer that the death of
the deceased was caused by setting her
ablaze after pouring kerosene oil on her.

(x) That the revisionist has no
criminal antecedents except the present
case.

10. 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
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
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 of
trial.

11. Learned counsel for the revisionist
has further argued that the revisionist has
already
undergone
half
of
the
imprisonment/institutional
incarceration
and has placed reliance of Hon'ble Apex
Court 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."

12. 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."

13. Learned A.G.A. has filed the
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.

14. Learned counsel for the revisionist
thereafter filed the rejoinder affidavit and
has denied the averments made in the
counter affidavit and submitted that there is
no whisper about the specific role assigned
to the revisionist in the case and has
reiterated the grounds mentioned in the
revision.

15.

This
Court
has
carefully
considered the rival submissions of the
9 All. Shyamu (Juvenile) Vs. State of U.P. & Anr.
1013
parties and perused the impugned orders.
The juvenile is clearly below 16 years of
age 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, which reads as under:

"(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."

16. The present case, as a whole, is
built on circumstantial evidence where
prima facie there are loopholes serious
enough that the adult co-accused have been
admitted to bail. It does not appear to bear
any justification that where the men said to
be behind the death of the deceased and
bearing a motive besides being adults, have
been admitted to bail, the revisionist may
be denied his liberty by testing his case
with reference to the disentitling condition
mentioned in the proviso to sub Section (1)
of Section 12 of the Act. This Court has, in
particular, looked into the role of the
various accused and finds that Satyapal and
Vijendra, who have already been granted
bail by this Court, and the revisionist have
identical role of assembling. According to
the prosecution, the revisionist and coaccused Satyapal are brothers and coaccused Vijendra is the father of the
revisionist. Once co-accused Satyapal and
Vijendra have been admitted to bail, who
are adults, there seems no justification to
additionally test the case of the revisionist
with reference to the requirements of the
proviso to sub Section (1) of Section 12 of
the Act. In this connection, I had occasion
to consider the question about the right of a
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
juvenile to be released on bail where a
similarly circumstanced adult offender had
been extended that liberty. In the case of
Dharmendra (Juvenile) vs. State of U.P.
and others, [2018 (7) ADJ 864], the High
Court was pleased to observe as under:

"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
9 All. Shyamu (Juvenile) Vs. State of U.P. & Anr.
1015
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 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."

17. 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.

18. In the present case there appears
to be no distinguishing feature from the
case of co-accused Satyapal and Vijendra,
who are adult offenders circumstanced
identically as the revisionist. There is no
justification to hold the revisionist not
entitled to the liberty of bail. The impugned
orders proceed on the reasoning about the
offence being heinous overlooking the fact
that the offence on its own terms may be
heinous but the role of the revisionist, as
well as the other accused, is based prima
facie on weak circumstantial evidence. It is
also taken note of by this Court that the
revisionist has by now done more than half
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 18(1)(g) of the Act.
This Court, thus, finds that the impugned
orders cannot be sustained and are liable to
be set aside and reversed.

19. 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
early conclusion of trial 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
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC 22 and the view taken by the Hon'ble
Court in the cases of Kamal Vs. State of
Haryana (supra), Takht Singh Vs. State
of
Madhya
Pradesh
(supra),
Dharmendra (Juvenile) vs. State of U.P.
and others (supra), Japani Sahoo vs.
Chandra Sekhar Mohanty (supra) and
Shiv Kumar alias Sadhu Vs. State of
U.P. (supra), this Court is of the view that
the present criminal revision may be
allowed and the revisionist may be released
on bail.

20. In the result, this revision
succeeds and is allowed. The impugned
judgment and order dated 2.11.2019 passed
by Special Judge (POCSO Act)/Additional
Sessions Judge, Court No.9, Mathura
dismissing Juvenile Criminal Appeal No.68
of 2019 (Shyamu vs State of UP and
another) and the order dated 7.8.2019
passed by the Juvenile Justice Board,
Mathura in Case Crime No.489 of 2018
under Sections 498A, 304B, 323 IPC and
Section 3/4 Dowry Prohibition Act, Police
Station Barsana District Mathura, are
hereby set aside and reversed. The bail
application
of
the
revisionist
stands
allowed.

21. Let the revisionist, Shyamu
(Juvenile) through his natural guardian/
father Vijendra be released on bail in Case
Crime No. Case Crime No.489 of 2018
under Sections 498A, 304B, 323 IPC and
Section 3/4 Dowry Prohibition Act, Police
Station Barsana District Mathura 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, Mathura subject to
the following conditions:

(i) That the natural guardian/
father, Vijendra 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,
Vijendra will report to the District
Probation Officer on the first Wednesday
of every calendar month commencing with
the first Wednesday of October, 2020 and
if during any calendar month the first
Wednesday falls on a holiday, then on the
next 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, Mathura 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 or the certified copy issued by
the Registry of the 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.

22. However, considering the peculiar
facts and circumstances of the case, the
court below is directed to make every
9 All. Vaibhav Nigam Vs. State of U.P. & Anr.
1017
possible endeavour to conclude the trial of
the aforesaid case within a period of four months
from today without granting unnecessary
adjournments to either of the parties.
----------
(2020)09ILR A1017
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.01.2020

BEFORE

THE HON'BLE ANIL KUMAR -IX, J.

Application U/S 482 No. 1381 of 2020

Vaibhav Nigam ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Awadh Bihari Pandey

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

Criminal Law - Code of Criminal Procedure,
1973 - Section 239 Cr.P.C.- Application for
discharge
rejected-
Difference
in
registration number of the offending vehicle
in the claim petition and in the FIR and
evidence collected by the I.O - The claim
petition which is now not in existence and
has been dismissed in non appearance of
the claimant, is not such an exceptional
defence
material
demonstrating
the
prosecution version absurd or preposterous.
At the top of first page of the claim petition
parties names are mentioned with the
registration number of offensive vehicle as
UP74PE6327 (Car) but in para 23 of the
same petition the registration number of the
offensive vehicle is clearly mentioned as
UP78DE6327. Therefore, the aforesaid claim
petition was not a such type of exceptional
defence evidence which was required to be
looked into at the time of framing charges.

It is settled law that at the time of framing of
charges there must be very rare and exceptional
circumstances where the defence material could
convince the Court that the entire case is absurd
and preposterous but in the present case, where
the claim petition has been dismissed for want
of prosecution and the same registration
number of the vehicle is mentioned in the
paragraph of the claim petition which is also in
the FIR, exceptional circumstances are made
out for the interference of the Court.

Criminal Application rejected. (Para 11) (E-3)

Case law relied upon/ Discussed: -

1. St. of Orissa Vs Debendra Nath Padhi (2005)
1 SCC 568

2. Rukmini Narvekar Vs Vijay Sataredkar & ors.
A.I.R. 2009 SC 1013

3. St. of M.P. Vs S.B. Johari & ors. A.I.R. 2000
SC 665

(Delivered by Hon'ble Anil Kumar -IX, J.)

1. This application under Section 482
Cr.P.C. has been moved by the applicant
with prayer to quash the order dated
07.06.2019 passed by Additional Chief
Judicial Magistrate Court No.1, Kanpur
Dehat on the discharge application of the
applicant under Section 239 Cr.P.C. in
Case No. 721 of 2014 (State Vs. Vaibhav
Nigam) arising out of Case Crime No. 41
of 2014, under Sections 279, 337, 338, 304A, 427 I.P.C. and Section

2. Briefly stated facts relevant for
disposal of this application are that F.I.R.
Case Crime No. 41 of 2014, under Sections
279, 337, 338, 304-A, 427 I.P.C. and
Section 184 of Motor Vehicle Act has been
lodged on written complaint of Rakesh
Kumar against driver of the vehicle Maruti
Registration
No.UP78DE6327
alleging
therein that on 20.02.2014 at about 4:30
PM the driver of the aforesaid vehicle by
his rash and negligent driving collided with