# Subham Kumar Malik Revisionist v. State of U.P. & Anr

- **Citation:** (2020) 8 ILRA 653
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-17
- **Case number:** Criminal Revision No. 4498 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subham-kumar-malik-revisionist-v-state-of-u-p-anr-45884
- **Pages:** 7

## Headnote

Civil Law - Juvenile Justice (Care and
Protection of Children) Act, 2015 -
Section 12 - Case of Revisionist-at par
with adult co-accused-who has been
granted
bail-nothing
in
the
social
investigation report-if released on bailwould
defeat
the
end
of
justice-
Revision allowed.

Held, the conclusion to the contrary drawn by
the two courts' below are based on a
perverse inference drawn from the material
on record. It must also be remarked that the
learned Special Judge while writing the
impugned order has not carefully considered
the Social Investigation Report or referred to
it. He has not also referred to the other
material on record in order to test the case of
the juvenile on the parameters prescribed
under the proviso to sub Section (1) of
Section 12 of the Act. A reading of his order
shows that it carries more of paraphrasing of
the
statutory
requirements
than
a
consideration of the revisionist's case with
reference to the facts and evidence on record.
The revisionist is entitled to a more careful
consideration of his case by the Appellate
Court under Section 101 of the Act. The order
of the Juvenile Justice Board is also flawed for
the reason that it is quite reasonless. It
records abrupt conclusions without indicating
the basis to reach them. In the opinion of this
Court, therefore, the impugned orders are
manifestly illegal and cannot be sustained.

## Text

8 All. Subham Kumar Malik Vs. State of U.P. & Anr.
653
Monday
of
every
calendar
month
commencing with the first Monday of July,
2020 and if during any calendar month the
first Monday falls on a holiday, then on the
following working day.

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

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

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

(vi)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court Allahabad and shall make a
declaration of such verification in writing.
----------
(2020)08ILR A653
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.06.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Revision No. 4498 of 2019

Subham Kumar Malik ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ronak Chaturvedi, Sri Dharmendra Dhar Dubey
Counsel for the Opposite Parties:
A.G.A., Sri Mukhtar Alam

Civil Law - Juvenile Justice (Care and
Protection of Children) Act, 2015 -
Section 12 - Case of Revisionist-at par
with adult co-accused-who has been
granted
bail-nothing
in
the
social
investigation report-if released on bailwould
defeat
the
end
of
justice-
Revision allowed.

Held, the conclusion to the contrary drawn by
the two courts' below are based on a
perverse inference drawn from the material
on record. It must also be remarked that the
learned Special Judge while writing the
impugned order has not carefully considered
the Social Investigation Report or referred to
it. He has not also referred to the other
material on record in order to test the case of
the juvenile on the parameters prescribed
under the proviso to sub Section (1) of
Section 12 of the Act. A reading of his order
shows that it carries more of paraphrasing of
the
statutory
requirements
than
a
consideration of the revisionist's case with
reference to the facts and evidence on record.
The revisionist is entitled to a more careful
consideration of his case by the Appellate
Court under Section 101 of the Act. The order
of the Juvenile Justice Board is also flawed for
the reason that it is quite reasonless. It
records abrupt conclusions without indicating
the basis to reach them. In the opinion of this
Court, therefore, the impugned orders are
manifestly illegal and cannot be sustained.
13. (para12)

Criminal Revision allowed. (E-9)

Cases referred:-

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

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

1. Shubham Kumar Malik, a
juvenile in conflict with the law, has
approached this Court under Section 102
654 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (for
short, 'the Act'), asking this Court to
revise a judgment and order of Shri Om
Prakash Verma, Special Judge, POCSO
Act, Bijnor dated 06.11.2019, dismissing
Criminal Appeal No. 63 of 2019 and
affirming an order of the Juvenile Justice
Board, Bijnor dated 31.08.2019, refusing
bail to the revisionist in Case Crime No.
225 of 2019, under Section 302, 201/34
I.P.C., P.S. Najibabad, District Bijnor.

2. Heard Sri Dharmendra Dhar
Dubey,
learned
Counsel
for
the
revisionist, learned A.G.A. appearing on
behalf of the State and Sri Mukhtar
Alam, learned Counsel appearing on
behalf respondent no.2.

3. The prosecution case disclosed in
the FIR is that the informant's son,
Dipanshu, aged about 18 years, left home
on
19.04.2019
without
telling
his
whereabouts. The informant searched for
him but could not locate him. Thereupon,
the informant lodged a missing report on
21.04.2019 with P.S. Najibabad. In the
meanwhile, the informant kept up search
for his missing son. He could not find
him. Then, on 23.04.2019, the dead body
of the informant's son was found
concealed within the Bhareki canal,
falling in the local limits of P.S.-
Kiratpur, district-Bijnor. It is said that
some unknown offenders had done the
informant's son to death. Upon receipt of
this information, the informant and his
relatives proceeded to the site where
Dipanshu's body lay for the purpose of
identification. It is also mentioned that
the police of P.S. Kiratpur sent the body
for autopsy. The information requests
necessary
action
against
unknown
offenders. The prosecution story that
unfolds is that two witnesses, to wit,
Naseem and Pavan Kumar told the police
that they had last seen the deceased in the
company of co-accused, Harsh Verma @
Suraj and Ritul on 19.04.2019 at about
4.00 p.m. There are some call detail
records which show that co-accused,
Harsh Verma @ Suraj, on 19.04.2019 at
5.20 p.m. used the mobile handset of the
deceased putting in his own SIM card
and browsing the internet. The name of
the revisionist and another co-accused,
Manish @ Raja surfaced through a
confessional statement of Harsh Verma
@ Suraj recorded on 28.04.2019. In the
said statement, Harsh Verma @ Suraj
assigned the role of catching hold to the
revisionist and the co-accused, Manish @
Raja whereas the role of inflicting the
injuries is attributed to Harsh Verma @
Suraj and Ritul.

4. It is pointed out before this Court
that the bail application of Ritul has been
rejected by this Court vide order dated
02.12.2019 passed in Criminal Misc. Bail
Application No. 52033 of 2019, whereas that
of co-accused Manish @ Raja has been
allowed vide order dated 21.11.2019 passed
in Criminal Misc. Bail Application No.
49465 of 2019. It is argued by Sri
Dharmendra Dhar Dubey, learned counsel
for the revisionist with much emphasis that
the role assigned to the revisionist is
absolutely at par with Manish @ Raja. It is
different from Ritul and Harsh Verma @
Suraj. Sri Mukhtar Alam, learned counsel
appearing for the second opposite party does
not dispute the fact that the role assigned to
this revisionist is at par with Manish @ Raja
and very different from Ritul and Harsh
Verma @ Suraj.

5. This Court has also carefully
considered the roles assigned to these
8 All. Subham Kumar Malik Vs. State of U.P. & Anr.
655
various accused and the nature of
evidence appearing against them. For
one, this case rests on circumstantial
evidence about which there is no eye
witness. In case of Harsh Verma @ Suraj
and Ritul, there is evidence of last seen
by two independent witnesses, which
those accused have not been able to
explain. In addition, against co-accused,
Harsh Verma @ Suraj, there is some
evidence of the deceased's phone being
used on the day when he disappeared
after being seen in his company. Also,
Harsh Verma @ Suraj and Ritul, on the
confession of one of them have been
credited with the role of assault whereas
the role assigned to the revisionist and
the co-accused, Manish @ Raja is of
catching hold.

6. It is emphasized by learned
counsel for the revisionist that on merits,
Manish @ Raja with a role that is
identical to the revisionist has been
admitted to bail by this Court vide order
dated 21.11.2019, details of which are
mentioned hereinbefore. This accused,
Manish @ Raja, is an adult and has been
found entitled to the concession of bail.
The submission of the learned counsel
for the revisionist is that once on an
identical role and evidence, an adult
offender is found entitled to bail, it would
be not only unfair but discriminatory to
hold
the
juvenile
in
institutional
incarnation.
It
is
the
revisionist's
submission that it is not the purpose of
the proviso to sub Section (1) of Section
12 of the Act that a juvenile's case be
tested on the parameters of the three
disentitling categories, where an adult
circumstanced
like
him,
would be
entitled to bail. According to the learned
counsel for the revisionist, the revisionist
ought to be enlarged on bail once an
adult co-accused with a similar role has
been extended that indulgence.

7. Learned A.G.A. and Sri Mukhtar
Alam, learned counsel appearing on
behalf of opposite party no. 2 have
opposed the revisionist's prayer.

8. This Court has keenly considered
the rival submissions advanced by
parties. It is true for a fact that the case of
the revisionist is at par with Manish @
Raja and is clearly distinguishable with
that of Ritul, who has been denied bail
and the other co-accused Harsh Verma @
Suraj.

9. The provisions of Section 12 of
the Act that govern bails in case of
juveniles are extracted below:

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

(1) When any person, who is
apparently a child and is alleged to have
committed a bailable or non-bailable
offence, is apprehended or detained by
the police or appears or brought before a
Board,
such
person
shall,
notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2
of 1974) or in any other law for the time
being in force, be released on bail with or
without surety or placed under the
supervision of a probation officer or
under the care of any fit person:

Provided that such person shall
not be so released if there appears
reasonable grounds for believing that the
release is likely to bring that person into
association with any known criminal or
656 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

10. The provisions of Section 12 of
the Act are designed to ensure that bail is
granted to a juvenile in a case where
there is no possibility for an adult to be
released on bail. The only fetter on that
right to bail for a juvenile are the three
exceptions that are carved out in the
proviso to sub Section (1) of Section 12.
In case, the juvenile is found to fall in
one or the other disentitling categories
envisaged by the proviso, last mentioned,
bail may be denied to him. It cannot
possibly be the legislative intent that in a
case where an adult offender, identically
circumstanced as a juvenile, is found
entitled to bail, the juvenile's case has to
further pass the test of not falling into
one or the other disentitling categories
envisaged in the proviso to sub Section
(1) of Section 12 of the Act. If this
construction were to be accepted, it
would lead to the liberty of a juvenile
being hedged in with further conditions
about bail, over and above those
requirements that an adult offender is to
satisfy under the law. This construction
would possibly expose the provisions of
Section
12
to
the
peril
of
unconstitutionality on the ground of
discrimination.

11. I have considered this question
in Dharmendra (Juvenile) vs. State of
U.P. and others, 2018 (7) ADJ 864,
where it is held:

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

11. The rule in Section 12(1) of
the Act is in favour of bail always to a
juvenile/ child in conflict with law except
when the case falls into one or the other
categories denial contemplated by the
proviso. It is not the rule about bail in
Section 12 of the Act that in case a child
8 All. Subham Kumar Malik Vs. State of U.P. & Anr.
657
in conflict with law is brought before the
Board or Court, his case is not to be seen
on
merits
prima
facie
about
his
complicity at all for the purpose granting
him bail; and all that has been done is to
see if his case falls is one or the other
exceptions, where he can be denied bail.
The rule in Section 12 sanctioning bail
universally to every child in conflict with
law presupposes that there is a prima
facie case against him in the assessment
of the Board or the Court based on the
evidence placed at that stage. It is where
a case against a child in conflict with law
is prima facie made out that the rule in
Section 12(1) of the Act that sanctions
bail as a rule, except the three categories
contemplated by the proviso comes into
play. It is certainly not the rule, and, in
the opinion of the Court cannot be so,
that a case on materials and evidence
collected not being made out against a
child at all, his case has to be tested on
the three parameters where bail may be
denied presuming that a prima facie case
is constructively there. Thus, it would
always have to be seen whether a case
prima facie on merits against a child in
conflict with law is there on the basis of
material produced by the prosecution
against him. If it is found that a prima
facie case on the basis of material
produced by the prosecution is there that
would have led to a denial of a bail to an
adult offender, in that case also the Rule
in Section 12(1) of the Act mandates that
bail is to be granted to a juvenile/ child in
conflict with law except where his case
falls into any of the three disentitling
categories contemplated by the proviso.

12. In the opinion of this Court,
therefore, the perception that merits of
the case on the basis of prima facie
evidence is absolutely irrelevant to a
juvenile's bail plea under the Act would
not be in conformity with the law. The
catena of decisions that speak about
merits of the case or the charge against a
juvenile being irrelevant, proceed on
facts and not an assumption that a case
on merits is made out, and, not where the
case is not at all made out prima facie. It
is not that a child alleged to be in conflict
with law against whom there is not iota
of evidence to connect him to the crime
would still have bail denied to him
because his case may be placed in or the
other disentitling categories under the
proviso to Section 12(1) of the Act. If
this kind of a construction were to be
adopted it might expose the provisions of
Section 12(1) of the Act to challenge on
ground of violating the guarantee of
equal protection of laws enshrined in
Article 14 of the Constitution. It is an
enduring principle that a construction
that lends a 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
658 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

12. In the facts of the present case,
this Court has noticed that the case of the
revisionist is absolutely at par with coaccused, Manish @ Raja, an adult, who
has been admitted to the concession of
bail by this Court. This being so, there is
no justification to hold the juvenile any
further, in institutional incarceration.
Even otherwise, this Court is of opinion
that there is nothing in the Social
Investigation Report that may lead to a
legitimate inference that if the juvenile is
released on bail he will come into contact
or association with any known criminal
or be exposed to any moral, physical or
psychological danger or that his release
would defeat the ends of justice. The
conclusion to the contrary drawn by the
two courts' below are based on a perverse
inference drawn from the material on
record. It must also be remarked that the
learned Special Judge while writing the
impugned
order
has
not
carefully
considered
the
Social
Investigation
Report or referred to it. He has not also
referred to the other material on record in
order to test the case of the juvenile on
the parameters prescribed under the
proviso to sub Section (1) of Section 12
of the Act. A reading of his order shows
that it carries more of paraphrasing of the
statutory
requirements
than
a
consideration of the revisionist's case
with reference to the facts and evidence
on record. The revisionist is entitled to a
more careful consideration of his case by
the Appellate Court under Section 101 of
the Act. The order of the Juvenile Justice
Board is also flawed for the reason that it
is quite reasonless. It records abrupt
conclusions without indicating the basis
to reach them. In the opinion of this
Court, therefore, the impugned orders are
manifestly
illegal
and
cannot
be
sustained.

13. In the result, this revision
succeeds and is allowed. The impugned
order dated 06.11.2019 passed by the
learned
Special
Judge,
POCSO
Act,Bijnor in Criminal Appeal No. 63 of
2019 and the impugned order of the
Juvenile Justice Board dated 31.08.2019
are hereby set aside and reversed. The
bail application made on behalf of the
revisionist before the Board through his
father stands allowed.

14. Let the revisionist, Subham
Kumar Malik (Juvenile) through his
natural guardian/ father Vedpal Singh
Malik, be released on bail in Case Crime
no.225 of 2019, under Sections 302,
201/34 IPC, P.S. Najibabad, District
Bijnor 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
8 All. Radhey Shyam Gupta & Ors. Vs. State of U.P. & Anr.
659
Board, Bijnor subject to the following
conditions:

(i) that the natural guardian/
father Vedpal Singh Malik 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
Vedpal Singh Malik will report to the District
Probation Officer on the first Monday of
every calendar month commencing with the
first Monday of July, 2020 and if during any
calendar month the first Monday falls on a
holiday, then on the following working day.

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

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

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

(vi)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy
of the order from the official website of
High Court Allahabad and shall make a
declaration
of
such
verification
in
writing.
----------
(2020)08ILR A659
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.07.2020

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 No. 1697 of 2016

Radhey Shyam Gupta & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Amit Saxena, Sri Mushir Khan, Sri
Saurabh Singh

Counsel for the Opposite Parties:
A.G.A., Sri Abdul Majid, Ms. Sufia Saba

A. Criminal law - Code of Criminal
Procedure,1973-Section 482 - Indian
Penal Code, 1860 - Sections 147, 148,
149,
406,
329,
386-quashing
ofproceedings initiated maliciously with
an
ulterior
motive
for
wreaking
vengeance with a view to spite him due
to private and personal grudge-while
the grievance of the rival parties has
been addressed by the civil court and
written statements of the respective
defendants
have
already
been
submitted then no justifiable reason
arises to array the stranger the selfProclaimed Power of Attorney Holder
without any requisite and relavant
document
to
initiate
criminal
case
against the applicant-no medical injury
report corroborates the allegations of
assault with lathi danda-its simply
embellishment just switch over the
episode into a serious and grimmer
drama-therefore,
liable
to
be
quashed.(Para 12 to 37)