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Vishal Dubey v. State Of U.P. - CRIMINAL REVISION No. 835 of 2005  RD-AH 8663 (28 April 2006)
Criminal Revision No. 835 of 2005
Vishal Dubey (Minor) Vs. State of U. P.
Criminal Revisin No. 959 of 2005
Vishal Dubey (Minor) Vs. State of U. P.
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.
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