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VISHAL DUBEY versus STATE OF U.P.

High Court of Judicature at Allahabad

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Vishal Dubey v. State Of U.P. - CRIMINAL REVISION No. 835 of 2005 [2006] RD-AH 8663 (28 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Criminal Revision No. 835 of 2005

Vishal Dubey  (Minor) Vs.  State of U. P.

And

Criminal Revisin No. 959 of 2005

Vishal Dubey  (Minor) Vs.  State of U. P.

Hon'ble R.K.Rastogi,J

Criminal Revision No. 835 of 2005 has been filed  by  Vishal  Dubey against the  judgment and order dated 15.1.2005 passed  by the learned  Sessions Judge , Agra  in  Criminal (Juvenile) Appeal No. 61 of 2004 , Vishal Dubey  Vs. State  in case Crime No. 507 of 2004, Police Station  New Agra  District Agra  under section  25 Arms Act . Criminal Revision No. 959 of 2005  has also been filed  by the same revisionist against the  judgment and  order  dated 15.1.2005 passed by the  learned  Sessions Judge  Agra  in Criminal  (Juvenile)  Appeal No. 63 of 2004, Vishal Dubey  Vs.  State of U.P.  in case Crime No.  490 of 2004, P.S. New Agra  District Agra under Sections 457/380/411 I.P.C.  Since both these revisions  have been filed  by the same  revisionist and since   they  involve  common question of law , I have heard  them together  and now  I am deciding  them by a common judgement.

The facts relevant  for disposal of  both these  revisions are  that on 16.11.04 the  revisionist  was allegedly  arrested by  the police of  New Agra  at about 4.40 P.M.  One country made pistol with one  cartridge inside it   and  one more  live  cartridge  were  allegedly recovered  from  his possession,  and in respect of  this recovery  case crime no. 507/04 was registered  against him. One golden  chain    which he was wearing   in his neck  was claimed  by   Manvendra Singh  and  his mother Smt.  Prem Lata  to be  their own stating  that   it was   that very chain  which was looted  by the culprits  on 12.10.03  from their house. Recovery  memos of  these  were prepared . It is  further alleged  that  thereafter  on the  pointing out  of the  revisionist  two  golden  bangles  which  were stolen from the house of Pradeep  Kumar  Agrawal   and in respect of which  crime no. 490/04 was registered  at police station  New  Agra  against  unknown culprits ,  were  also recovered.

The applicant  denied the recovery  of  pistol,    cartridges  and bangles  from his possession  though he  admitted  recovery of  golden chain  claiming  that  it was his own  chain and  was not a stolen property further pleading  that  if he  had  stolen  it, he would not have   publicly worn  it in his neck . He further took  plea that he was   juvenile  on the date of incident as his date of birth  was  1.7.1987. It was alleged that  actually the police had arrested  him on 12.11.04 and a telegram  to this effect was also  sent  by his father  to the D.I.G. and and thus the entire  proceedings of his arrest  and recovery of  pistol and  chain etc.  from his possession on 16.11.04  as shown in the police record  are  fictitious  and forged. The accused  revisionist  has filed a photo copy of  his High School certificate  showing  his date  of birth  as 1.7.87 and thus  his age was less than  18 years  on the date of incident. The  fact that  he was juvenile  on the date of incident  does not appear to  have been disputed  by the prosecution  and he was  admitted in the juvenile  observation home on 16.11.04 i.e. the  date of  his arrest.

A report was also  called from the District Probation Officer  regarding    his antecedents etc.  who submitted   his report  on 25.11.2004 in which he  stated that  Juvenile  Vishal  Dubey  was residing  with his father  Ram Prakash Dubey  at Agra  who was employed  as Reader in  the Consolidation department, Mathura . He was a student of  B. Sc.  in  R.B.S. College  and  upon inquiries  the neighbours  told that  Vishal Dubey was not   of criminal nature  nor he remained in the company  of  boys of criminal  nature .  They also  told that he had been  earlier  detained  in a criminal case  but he  had been  bailed out  and the police  had again detained  him in this criminal case . It was  also stated that  the father of  Vishal Dubey  assured  the Probation Officer  that  if  Vishal Dubey is released  on bail, he  would  be sent  to  some other place out of Agra    for  completing his studies . The District Probation Officer  concluded in his  report  that  taking into consideration the  above facts,  if he is released on bail it shall not have  any adverse   effect   on the interest of justice.  

The Special C.J.M.,  Agra  who  heard the bail  applications  of the revisionist  rejected the same vide   his orders dated  7.12.04 passed in both the  crime  numbers. Aggrieved  with these orders the revisionist  filed Criminal  Appeal  No. 61 of 2004  against  the  rejection  order  passed in Crime No. 507 of 2004 under section 25 Arms Act  and Criminal Appeal No. 63 of 2004  in  case crime No. 490/04, under  Sections 457, 380, 411 I.P.C. both these  appeals were  heard and decided  by the learned Sessions Judge , Agra  vide his  judgments and orders dated  15.1.05. He dismissed  both these appeals  and aggrieved with the judgment  in Criminal Appeal No.61/04, he has  filed  criminal revision No.835/05 and against the  judgment  in Criminal Appeal No. 63/04  he has filed Criminal  Revision No. 959 of  2005.

I have heard  the learned counsel for the revisionist  as well as the  learned A.G.A. for the State.

It appears  from perusal of the  judgment  of both  the courts below  that the bail of the  revisionist was  refused  on the ground of pendency of   following cases  against  him:

1.Crime No. 866/2002, U/S 364A/302 I.P.C.  P.S. New Agra

2.Crime No. 532/03, U/S 395/397  IPC P.S. New Agra

3.Crime No. 122/2004,  u/s 392 IPC, P.S. New Agra

4.Crime No. 278/2004, u/s  395/397 IPC  P.S. New  Agra

5.Crime No. 307/2004, u/s 457/380/411 IPC  P.S. New Agra

6.Crime No. 447/2004, u/s 392 IPC P.S. New Agra

It has been alleged in para 8 of the affidavit of the father of the  revisionist   filed in support of  these revisions  that  the revisionist  is not involved  in  the cases listed at serial no. 3, 4 and 5 above  and  it has  further been stated  that he has been granted bail  by the Special Judge   (  D.A.A.), Agra  in   the cases listed  at serial no. 2  and 6 above. A counter affidavit  has been filed in both the  revisions by Sri S. K. Singh, Sub Inspector, P.S.  New Agra  on behalf of the prosecution . In its para  7 he has stated  that  as  regards   the cases listed at serial  no. 3, 4 and 5 the accused had confessed  his involvement  in these cases  before the police  at the time of  his arrest but since no  evidence could be collected  against him  in  all these cases and only evidence against him was  of  confession  before the police  which was not  admissible , no charge sheet was  submitted against him in these cases .  Thus, it is clear that  the accused revisionist  is not  involved in  the cases listed at serial no. 3 to 5 . As regards the cases  listed at serial no. 2 and 6, it has been stated by Sri S.K.Singh , S.I.    in the aforesaid  para of his affidavit   that  after arrest  of the accused revisionist  in the present case, he was challaned  in both these cases  on the basis of  the recovery  made from his possession . In this connection  it was submitted  by the learned counsel for the  revisionist that  the entire proceedings of  arrest of the accused  revisionist  and  of recovery  from him are  of   dubious  and doubtful   nature  because  actually the accused was  arrested by the police on 12.11.04 and  detained at the police station  and  father of the accused revisionist   sent  an information to this effect  by Telegram  to  D.I.G. on 15.11.04 at 1. 00 P.M. and thereafter  the arrest of the accused was  shown to  have  taken place  on 16.11.04 at 4.40 P.M.  He  submitted that   if the accused  had not been  arrested  prior to  15.11.04, no  telegram of his arrest   would have been sent on 15.11.04 because the  accused and  his father  had no  prediction  that the accused  shall  be shown to   to be arrested  on 16.11.04. He submitted that  in this view of the matter  the implication   of the accused  on 16.11.04 in case crimes no. 532/03 and  447/04 listed at serials  no. 2 and 6 in the above list  on the basis of  so called  recovery  made from  his possession  and pointing out   is also  of   doubtful nature  and no consideration of these cases  should be     there while  considering  the bail application of  the accused  revisionist. He further submitted that  the accused revisionist  has  also been granted   bail by the learned  Special judge  (DAA), Agra  in both these cases. Now there remains  only  one  case crime no. 866/02 of  police station  New Agra  which is admittedly pending against the accused  revisionist. It was, however, submitted by the learned counsel  for the revisionist  that  taking into consideration  the doubtful nature  of arrest of the accused  in the present case , bail  should  not be refused  to the  applicant  revisionist in the present case.

I have gone  through  the  record  and  considered the submissions of learned counsel for both the parties.  It is to be seen that  the revisionist was a Juvenile on the date of the incident  and there is no dispute  on this point. The  bail to a juvenile  can be  refused  only on three  grounds  as mentioned in  section 12 of   Juvenile Justice  (Care  and Protection  of Children  ) Act. The report of the District  Probation Officer  on all those  points  is  in  favour  of the revisionist . It has further  been stated  by   the   Probation  Officer that  upon inquiries,   the neighbours    of the  revisionist   told him  that the revisionist was  not  of criminal nature  nor he  remained in the company  of criminal though he  had been arrested  by the police  in connection with  the same cases.

Considering  all these  facts of the  case, I am of the view  that  the revisionist, who was juvenile on the date of the incident,   deserves to be  bailed out  and the court below  erred  by rejecting his both  bail applications. Both the  revisions are, therefore, allowed and the judgment and order dated 15.1.2005 passed  by the learned  Sessions Judge, Agra  in  Criminal (Juvenile) Appeal No. 61 of 2004 , Vishal Dubey  Vs. State  in case Crime No. 507 of 2004, Police Station  New Agra  District Agra  under section  25 Arms Act  and  judgment and  order  dated 15.1.2005 passed by the  learned  Sessions Judge  Agra  in Criminal  (Juvenile)  Appeal No. 63 of 2004, Vishal Dubey  Vs.  State of U.P.  in case Crime No.  490 of 2004, P.S. New Agra  District Agra under Sections 457/380/411 I.P.C. and the orders of the Spl. C.J.M. dated 7.12.04 rejecting  bail application of the accused  revisionist  in both these cases  are set aside  and   bail is granted to   the accused  revisionist in both these cases. It may be mentioned that   since now he has become  major , now  he  shall be  released on bail on execution of his personal bond  with two sureties  of the  amount  to the satisfaction of the court concerned where these cases against him are pending. It is , however,  made clear that  since  he was juvenile on the date of  incident, these cases shall proceed against him in accordance with  the provisions of  Juvenile  Justice ( Care and Protection of  Children) Act.

Dated:    28.4.06      

MLK


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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