Afsar Ali vs State of U.P. and Sri Asif

Barkat Ali Zaidi, J.—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 ST. 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.

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.

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 u/s 482 Cr. P.C.

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.

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 in 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.

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.

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.

Petition disposed of accordingly.