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Afsar Ali v. State Of U.P. & Others - APPLICATION U/s 482 No. 7855 of 2002 [2006] RD-AH 13584 (18 August 2006)


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 (Reserved Judgment)

Criminal Misc. Application  No.   7855 of 2002

Afsar Ali son of Sri Tarikat Khan,

Resident of Village Jisori, P.S. Mundali,

District Meerut. ..........  ........ Applicants-Accused.


1. State of U.P.

2. Sri Asif son of Manjoor......Opp.parties- Complainant.


Hon'ble Barkat Ali Zaidi, J

1. The applicant-accused alongwith co-accused  Abrar, Irshad, Rais, Saleem and Anis was challaned by the Police of Police Station Mundali District Meerut in case Crime No.109 of 2001, under Sections 147,148,149,307 and 302 I.P.C. It's trial being  S.T. No. 610 of 2001. He was referred to the Juvenile Justice Board at the out set and the Board vide order dated 23.4.2005 declared him as a Juvenile below 18 years of age, the date of incident 17.4.2001.

2. The applicant is in jail since 17.4.2001 and despite that he has been declared as a Juvenile,  he is still being retained in District Jail in place of an observation Home.  He has also been denied bail by the Board. Revision filed by him against that order before Sessions Judge also failed while other co-accused after  standing  the regular trial, have  been acquitted by the Addl. Sessions Judge, Fast Track Court No.5, Meerut vide judgment dated 29.4.2006.

3. The prayer of the applicant is that the enquiry case No. 405/9/0  originating from Case Crime No.109 of 2001,  under Sections 147,148,149,307 and 302 I.P.C against him be quashed, proceedings  in the case be stayed  and he also be granted bail during the pendency of  application under Section 482 Cr.P.C..

4. Heard Sri N.I.Jafri, learned counsel for the  applicant and the learned A.G.A. for the State have been heard at the admission stage itself.

5. One of the argument of the counsel for the applicant is that all other co-accused in the case have already been tried and acquitted  and since the offence against the applicant-accused is the same,  the trial will be un-necessary and unwarranted and will be an abuse of the process of Court and the proceedings against the applicant be quashed. This argument is unacceptable because WHEN an offence is committed, a trial is to take place and we cannot anticipate that evidence will be the same and the case will result in acquittal. The counsel for the applicant has argued the principal of Stare Decisive will be applicable.  In the first place as a general Rule, the principal of Stare Decisive is not applicable  to criminal cases and  secondly  the principle comes into operation only when evidence has been adduced and has been found wholly identical. We cannot  invoke the principle of Stare Decisive  on the assumption that the evidence is going to be the same. The court's power of summoning the witnesses suo motu  can not be ignored.

6. It is not unusual to find that while in a criminal court , an accused is acquitted of a particular offence, he is ordered to pay damages in civil court on the finding that he committed the said Act which constituted an offence. The  case of O.J. Simpson in United States , which has acquired international reputation for this particular feature is a glaring example.

7. But as will appear that the applicant continues to be in jail despite being a juvenile,  it is violative of the provisions of Juvenile justice (Care and Protection of Children) Act, 2000.He be immediately   shifted  to a children Home. Since he is in jail for more than 5 years and the trial has not commenced as yet, proper course  seems to enlarge him  on bail. He shall, therefore, be released on bail on executing a person bond of Rs. 15000/-  and two sureties each in the like amount to the satisfaction of the Board.

8. Petition  disposed of accordingly.

Dt:       18th August, 2006



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