Allahabad High Court
Idrish (Minor) vs State Of U.P. on 9 April, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 A.F.R. Case :- CRIMINAL REVISION No. - 224 of 2018 Revisionist :- Idrish (Minor) Opposite Party :- State Of U.P. Counsel for Revisionist :- Mr Gopeshwar Sahai Bisaria Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
1. Heard Sri G.S. Basaria, learned counsel for the revisionist and Sri Indrajeet Singh, learned A.G.A. along with Sri Vivek Dubey appearing on behalf of the State.
2. This revision is directed against an order of Sri Arun Kumar Pathak, learned Additional District and Sessions Judge, Court no.6, Bareilly, dated 29.04.2017 passed in Criminal Appeal No.43 of 2017 dismissing the said appeal and affirming an order dated 10.03.2017 passed by the Juvenile Justice Board, Bareilly refusing bail to the revisionist in Case Crime No.458 of 2016, under Section 377 IPC and Section 6 of the POCSO Act, Police Station Bahedi, District Bareilly.
3. A perusal of the office report dated 07.04.2018 shows that notice upon opposite party no.2 has been served personally. Service is held to be sufficient. No one has put in appearance on behalf opposite party no.2.
4. Brief facts giving rise to this revision are that a First Information Report was lodged on 12.09.2016 at 3.00 p.m. by one Mohd. Sajid with the allegations that the daughter of his uncle Salim Ahmad (hereinafter referred to as the ''prosecutrix'), a child aged about 5 years was playing by the doorsteps of her house when at about 3.00 p.m. his servant working at the adjoining shop, that is to say, the revisionist talked her away into the lavatory, where he sodomized her, on account of which the prosecutrix bled profusely; she cried out in pain. Hearing that he and his father Jameel and his aunt Shabana went into the lavatory, beat up the revisionist catching him red handed on the spot, and, had brought him to the Police Station. The prosecutrix was sent for medico-legal examination to the District Women Hospital, Bareilly. The First Information Report aforesaid was registered at the Police Station as Case Crime no.458 of 2017, under Sections 377 IPC and Section 6 of the POCSO Act, Police Station Bahedi, District Bareill.
5. A perusal of the record shows that the victim was sent for medical examination to the District Women Hospital, Bareilly, where in column 15-F it is recorded "no pain in defecation or abdominal pain in genitalia". It is recorded in column 17 "no mark of injury seen". In the "Local examination of genital parts/ other orifices" that includes various sites, under column 18-C that relates to "Anus and Rectum", it is mentioned "no bleeding, no redness, no discharge, no tenderness".
6. The statement of the victim that is on record as Annexure 3, which to all appearances is a statement recorded before the police, reads as follows:
^^c;ku ihfM+rk%& eq0v0la0 458@16 /kkjk 377 vkbZihlh ,oa 6 iksDlks ,DV Fkkuk cgsM+h cjsyh C;ku ihfM+rk& dq0 --------- mez djhc 5 o"kZ iq=h lyhe vgen fuoklh ekS0 bLykeuxj Fkkuk cgsM+h ftyk cjsyh ls I;kj ls iz'uksRrj fd;s tkrs gSA iz'u% csVh rqEgkjk D;k uke gS\ mRrj%& -------] (not being reproduced in view of Section 228 IPC) iz'u%& csVh vkids lkFk D;k ?kVuk gqbZ gS\ mRrj%& esjs lkFk bnjh'k us xyr dke fd;k gSA eq>s nnZ gks jgk gSA ,lMh0 ,e lh 645 phuw pkS/kjh Fkkuk cgsM+hA cjsyh fnukad 12&09&016A c;ku dh izfrfyfi layXu lhMh dh tkrh gSA**
7. It may be borne in mind that the bail application of a juvenile is to be determined on the parameters postulated by Section 12(1) of the Juvenile Justice (Care and Protection) Act, 2015 (hereinafter referred to as the 'Act, 2015'), that requires for a rule that every child in conflict with law whether the offence be bailable or non-bailable notwithstanding anything contained in the Code of Criminal Procedure is to be granted bail except where the three parameters envisaged under the proviso to the aforesaid Section exist. If those exist, bail may be denied on any one or more of them. The said three grounds to deny bail, are:-
1. Where there are reasonable grounds for believing that the release is likely to bring the child into association with any known criminal
2. The release is likely to expose the child to moral, physical or psychological danger
3. The release of the child would defeat the ends of justice.
8. The proviso to Section 12(1) of the Act, 2015 further mandates that in case bail is denied to a child in conflict with law the Board shall record reasons for the said decision and the circumstances that led to that decision. In the present case, the revisionist was declared a juvenile by an order dated 11.01.2017; his age was found to be 11 years and 8 months on the date of occurrence. The Juvenile Justice Board, before whom, the revisionist moved for bail, have hardly discharged their obligation to judge the bail plea on the parameters of Section 12(1) of the Act, 2015 and its attendant proviso. The Board paraphrased the requirements of Section 12(1) of the Act, 2015, and, thereafter, said act in a cryptic finding that since occurrence took place where the revisionist works in a shop and the family of his employer also lived there, it appears that he is involved in the occurrence. It has further been said that from the aforesaid fact which the Board have inferred on a conjecture, the further inference is that all the three disentitling grounds mentioned in the proviso to Section 12(1) of the Act, 2015 are attracted to the revisionist's case, which again have been recited mechanically.
9. This Court is constrained to observe that the Board have proceeded in a rather mechanical fashion to deal with the bail plea of the juvenile.
10. The revisionist/ juvenile went up in appeal to the Sessions Judge by way of Criminal Appeal no.43 of 2017 under Section 101 of the Act, 2015. The appeal came up for the determination before the learned Additional Sessions Judge, Court No.6, Bareilly. The learned Additional Sessions Judge has referred to the Social Investigation Report rather repetitively but there he has not pointed out anything from which a reasonable inference may be drawn that the juvenile if released there is a reasonable ground for believing that he is likely to come into association with any known criminals or the release would expose him to moral, physical or psychological danger or his release would defeat the ends of justice. The Social Investigation Report, on a reading of it, and also from what has been recited of it in the impugned order passed by the learned Additional Sessions Judge shows an average and healthy outlook of a family that is living not in considerable affluence. At the same time, it does show that the financial status of the family is average and they have a house of reasonable dimension and accommodation. The relationship between the family members is healthy; there is no history of criminality in the family or a history of the juvenile's delinquency. The feedback from the neighbours is also not in any way negative on the parameters prescribed to deny bail. However, still the learned Additional Sessions Judge has recorded a finding more than once in the judgment impugned to the following effect:-
^^LFkyh; fujh{k.k ,oa vkl iM+ksl eksgYys okyksa ls feyh tkudkjh ds vk/kkj ij fd'kksjo; dqlaxfr ,oa ;ksufyIlk vkfn dk udkjkRed izHkko izrhr gksrk gSA**
11. The Court does not find any basis for the learned Additional Sessions Judge to record this finding. It is no more than a ipse dixit of the learned Judge bereft of any material or evidence in support.
12. The learned Judge has also inferred a virtual guilt for the juvenile by finding that he works on a shop where the family of the shop owner also reside. The said finding is also absolutely irrelevant to the exercise of power to grant bail under Section 12(1) of the Act, 2015. No doubt that the seriousness of the offence is a factor to be taken into consideration even in the case of a juvenile, and, that brings in some prima facie proof appearing against the juvenile of the commission of the offence also, which otherwise is not the rule to grant bail to a juvenile. But to judge that one may have to see what evidence appears against the juvenile. The jurisdiction to consider the existence of a prima facie case would somewhere come from the last ground in the proviso to Section 12(1) of the Act, 2015, on which bail may be denied, that is, if it is found that release of the child would defeat the ends of justice. Perhaps, virtually, and, in fact, the factor that would play the most important role in judging the ground based on "the ends of justice being defeated" would refer somewhat to the merits of the case. Else, the merits of the case are irrelevant while judging the bail plea of a juvenile. In this connection the decision of this Court in Nitin Pal (minor) vs. State of U.P. and another1 and Raja (minor) vs. State of U.P.2 may be referred to with profit. The decision of the Hon'ble Supreme Court in Jitendra Singh vs. State of U.P.3 and Om Prakash Vs. State of Rajasthan and another4 are also indices that guide the exercise of power to grant bail to a juvenile/ child in conflict with law under the Act. In a recent decision rendered by this Court in Mangesh Rajbhar Vs. State of U.P. and another5, more in the context of the Act, 2015, the issue has been dealt with as under:-
"27. It seems thus that the suggestion of the learned counsel for the revisionist that bail to a juvenile or more properly called a child in conflict with law can be denied under the last ground of the proviso to Section 12 ejusdem generis with the first two and not with reference to the gravity of the offence, does not appear to be tenable. The gravity of the offence is certainly relevant though not decisive. It is this relevance amongst other factors where gravity of the offence committed works and serves as a guide to grant or refuse bail in conjunction with other relevant factors to refuse bail on the last ground mentioned in the proviso to Section 12 (1) of the Act, that is to say, on ground that release would "defeat the ends of justice".
28. Under the Act, as it now stands there is further guidance much more than what was available under the Act, 2000 carried in the provisions of Section 15 and 18 above extracted and the definition of certain terms used in those sections. A reading of Section 18 of the Act shows that the case of a child below the age of 16 years, who has committed a heinous crime as defined in the Act is made a class apart from cases of petty offence or the serious offence committed by a child in conflict with the law/juvenile of any age, and, it is further provided that various orders that may be made by the Board as spelt out under clause (g) of Section 15 depending on nature of the offences, specifically the need for supervision or intervention based on circumstances as brought out in the social investigation report and past conduct of the child. Though orders under Section 18 are concerned with final orders to be made while dealing with the case of a juvenile, the same certainly can serve as a guide to the exercise of power to grant bail to a juvenile under Section 12(1) of the Act which is to be exercised by the Board in the first instance.
29. Read in the context of the fine classification of juveniles based on age vis-a-vis the nature of the offence committed by them and reference to a specifically needed supervision or intervention, the circumstances brought out in the social investigation report and past conduct of the child which the Board may take into consideration, while passing final orders under Section 18 of the Act it is, in the opinion of this court, a good guide for the Board while exercising powers to grant bail to go by the same principles though embodied in Section 18 of the Act, when dealing with a case under the last part of the proviso to Section 12 (1) that authorizes the Board to deny bail on ground that release of the juvenile would "defeat the ends of justice."
30. Thus, it is no ultimate rule that a juvenile below the age of 16 years has to be granted bail and can be denied the privilege only on the first two of the grounds mentioned in the proviso, that is to say, likelihood of the juvenile on release being likely to be brought in association with any known criminal or in consequence of being released exposure of the juvenile to moral, physical or psychological danger. It can be equally refused on the ground that releasing a juvenile, that includes a juvenile below 16 years would "defeat the ends of justice." In the opinion of this Court the words "defeat the ends of justice" employed in the proviso to Section 12 of the Act postulate as one of the relevant consideration, the nature and gravity of the offence though not the only consideration in applying the aforesaid part of the disentitling legislative edict. Other factors such as the specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child would also be relevant that are spoken of under Section 18 of the Act.
31. In this context Section 12 and 18 and also Section15 (Section 15 not relevant in the case of a child below 16 years) and other relevant provisions all of which find place in Chapter IV of the Act are part of an integrated scheme. The power to grant bail to a juvenile under Section 12(1) cannot be exercised divorced from the other provisions or as the learned counsel for the revisionist argues on the other specific disentitling provisions in the grounds mentioned in the proviso to Section 12(1) of the Act. The submission made based on the rule of ejusdem generis urged by the learned counsel for the revisionist is misplaced, in the opinion of this Court.
32. Turning to the facts of the present case, no doubt the case of the applicant falls in the category of a heinous offence as defined under Section 2(33) of the Act and by its nature being one that is against the safety and security of women in society is certainly to be approached with caution when liberty is sought for a juvenile charged with an offence of this kind. Also, as said by the appellate court, in particular, the offence would become more serious, looking to the fact that the victim is a child who is said to be a mental retard and an idiot. The learned Judge of the appellate court has gone by that consideration and stopped there. In the opinion of this Court, there are other relevant facts which the learned Judge of appellate court and also the Board should have bestowed their consideration upon; the first of these factors is the prima facie complicity of the revisionist in the offence that would also be seen for an adult offender before a regular court, if he applied for bail."
13. Seen in the aforesaid context, the courts below have not examined the plea of the revisionist on the parameters prescribed by law. The Social Investigation Report hardly disentitles the revisionist on the first two parameters, that is to say, that in the event of release, the juvenile may come into association with known criminals or it may expose him to moral, physical or psychological danger. There is not as much as a hint of evidence anywhere on record that may disentitle the revisionist to bail on those two parameters. So far as the third parameter which says that the release of the person (child in conflict with law) would defeat the ends of justice compels the Court to see what the case against the juvenile/ child in conflict with law is.
14. In the present case, both the courts below have hardly seen any merits of the evidence or the case appearing against the revisionist. The courts below have not referred to the statement of the child witness at all. Even if they did the statement as it appears from the record, annexed as Annexure 3 to the affidavit, does not disclose that any test to ascertain whether the child understood the fact what she was saying in the evidence and going by her age it was to be ascertained. There is no record of her voir dire. She has said in her statement that " esjs lkFk bnjh'k us xyr dke fd;k gSA eq>s nnZ gks jgk gSA** There is nothing to show on record whether she understood what she meant by those words. The courts below have not referred to that statement. Even if the said statement is set apart, medical evidence in this case assumes significance looking to the allegations in the FIR, where it is alleged that the child bled profusely. The medical report dated 12.09.2016 shows observations of the doctor that are absolutely incompatible with the offence alleged and in the manner it is said to have been committed. The courts below have also ignored from consideration the fact that the revisionist in this case is a child labourer, about whom there was a plea, atleast before the Board, that he was being exploited for labour excessively, both at the shop and at home. It is said when he would refuse, he would be ill-treated. There is a defence plea that he was implicated falsely in order to coerce him into the conforming to his master's assignment of oppressive duties.
15. The Appellate Court has not looked into that aspect as well. The two courts below have denied bail to the revisionist on parameters certainly not countenanced by Section 12(1) of the Act, 2015. To the contrary this Court finds that there is hardly any parameter mentioned in Section 12(1) of the Act that may bring the case of the revisionist/ child in conflict with law into any of the disentitling categories.
16. In this view of the matter, this Court is of considered opinion that this revision must succeed.
17. In the result, this revision succeeds and is allowed. The impugned order dated 29.04.2017 passed by the learned Additional District and Sessions Judge, Court no.6, Bareilly in Criminal Appeal No.43 of 2017 and the order dated 10.03.2017 passed by the Juvenile Justice Board, Bareilly in Case Crime No.458 of 2016, under Section 377 IPC and Section 6 of the POCSO Act, Police Station Bahedi, District Bareilly, are hereby set aside and reversed. The bail application made on behalf of the revisionist through his father stands allowed.
18. Let the revisionist, Idrish through his natural guardian/ his father Mohd. Ayyub be released on bail in Case Crime No.458 of 2016, under Section 377 IPC and Section 6 of the POCSO Act, Police Station Bahedi, District Bareilly on his father furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Bareilly subject to the following conditions:
(i) that the natural guardian/father Mohd. Ayyub will furnish an undertaking that upon release on bail, the juvenile will not be permitted to come into contact or association with any known criminal or exposed to any moral, physical or psychological danger, and, further that the father will ensure that the juvenile will not repeat the offence.
(ii) that the father will further furnish an undertaking to the effect that the juvenile will be placed in a school and encouraged to undertake his studies and will not be required or permitted to work to earn wages.
(iii) The revisionist and his father Mohd. Ayyub will report to the District Probation Officer on the first Monday of every calendar month commencing from the first Monday of July, 2018 and if during any calendar month the first Monday falls to on a holiday, then on the following working day.
(iv)The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw his social investigation report that would be submitted to the Juvenile Justice Board, Bareilly on such periodical basis as the Juvenile Justice Board chooses.
Order Date :- 9.4.2018 Anoop