Kalamuddin vs State of U.P. and Another

Subhash Chandra Agarwal, J.—These two criminal revisions have been preferred by the revisionists/accused Kalamuddin and Ajay Gupta respectively u/s 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000, (hereinafter referred to as the Act) against the judgment and orders passed by the Sessions Judge, Gorakhpur in Criminal Appeal Nos. 179 of 2007, Kalamuddin v. State of U.P. and Criminal Appeal No. 177 of 2007, Ajay Gupta v. State of U.P., whereby the appeals filed by the revisionists against the orders dated 1.12.2007 passed by the Juvenile Justice Board, Gorakhpur, were dismissed and the prayers for bail were rejected.

In brief, the facts are that the revisionists/accused Kalamuddin and Ajay Gupta are accused in Crime No. 911 of 2007 under Sections 376 and 109, I.P.C. P.S. Kotwali, district Maharajganj. Both the revisionists were declared juvenile in conflict with law by order dated 30.10.2007, passed by the Juvenile Justice Board, Gorakhpur (hereinafter referred to as the Board). The revisionists moved applications for bail before the Board u/s 12 of the Act. The applications were rejected by the Board by order dated 1.12.2007 on the ground that if they were released on bail, they might come into association with known criminals or expose them to moral, physical or psychological danger.

Against the orders dated 1.12.2007 passed by the Board, Kalamuddin filed Criminal Appeal No. 179 of 2007 and Ajay Gupta filed Criminal Appeal No. 177 of 2007 before the Sessions Judge, Gorakhpur u/s 52 of the Act. The appellate court was of the view that the Appellants had committed rape with a minor girl of 13 years of age and as per the report of the police, they could join some criminal organisation and as per the report of the District Probation Officer, the Appellants were indifferent towards the discipline of their parents and, therefore, in every possibility, on their release, the Appellants would come in contact with criminals, which would expose them to moral, physical or psychological danger and that the release of the Appellants would defeat the ends of justice. The above orders have been challenged in these two revisions which are being disposed of by a common order.

Heard the learned Counsel for the revisionists/accused and the learned A.G.A.

Section 12(1) of the Act provides as follows:

Bail of juvenile.-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 (or placed under the supervision of a Probation Officer or under the care of any fit institution or fit person) 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.

Learned Counsel for the revisionists relied on the report submitted by the District Probation Officer, copies of which have been filed as Annexure-2 to both the revisions.

Regarding Kalamuddin, the report says that he is about 13 years of age and was working at Saw machine in the village. The District Probation Officer specifically mentioned that there was no possibility of Kalamuddin of joining any criminal organisation after release on bail. The economic condition of the family was poor. It was observed that control of the guardian over the juvenile was lacking. The Probation Officer recommended sympathetic consideration on the application for bail.

Similarly in respect of revisionist Ajay Gupta, the District Probation Officer found no possibility of his joining any criminal organization in case of release of bail. Social and economic status of the family was found to be normal. There was no criminal background. The child was indifferent towards the discipline of their parents but District Probation Officer recommended sympathetic consideration on the application for bail.

There is nothing in the report of the District Probation Officer to show that release of the revisionists on bail would bring them in association with any criminal organisation or any known criminal. The discipline of their parents over the child was found lacking. There is nothing on record to show that release on bail of the revisionists would expose them to moral, physical or psychological danger or that their release would defeat the ends of justice. Simply incorporating the grounds mentioned in Section 12(1) without any basis or evidence or material is not sufficient to refuse bail. How and under what circumstances, the release of the applicant would expose them to moral, physical or psychological danger or their release would defeat the ends of justice, have not been elaborated by the learned appellate court. Therefore, the judgments and orders dated 1.12.2007, passed by the Juvenile Justice Board, Gorakhpur and judgments and orders dated 10.12.2007, passed by the Sessions Judge, Gorakhpur in Criminal Appeal No. 179 of 2007 and 177 of 2007 cannot be sustained and are liable to be set aside and the revisions deserve to be allowed.

The revisions are accordingly allowed.

The impugned orders are set aside. Revisionists Kalamuddin and Ajay Gupta involved in Case Crime No. 911 of 2007 under Sections 376 and 109, I.P.C., Police Station Kotwali, district Maharajganj be released on bail on each of them furnishing personal bond through their guardian and two sureties each of the like amount to the satisfaction of the Juvenile Justice Board, Gorakhpur.