Allahabad High Court
Aadil vs State Of U.P. on 13 October, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 66 Reserved Case :- CRIMINAL REVISION No. - 3968 of 2019 Revisionist :- Aadil Opposite Party :- State of U.P. Counsel for Revisionist :- Manoj Kumar Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
1. This Revision arises from a judgment and order of the Additional District and Sessions Judge/ F.T.C.-2, Gautam Budh Nagar in Juvenile Appeal no.82 of 2019. By the impugned judgment dated 17.09.2019, the learned Additional Sessions Judge has dismissed the Appeal aforesaid preferred by the revisionist and affirmed an order dated 26.08.2019 passed by the Juvenile Justice Board, Gautam Budh Nagar, declining bail pending trial in Case Crime no.12 of 2019, under Sections 376-D A and Section 5Gha/6 of the POCSO Act, Police Station Rabupura, District Gautam Budh Nagar.
2. Notice to the complainant/ opposite party was issued by this Court vide order dated 31.10.2019 and again on 20.12.2019. A perusal of the office report dated 18.02.2020 shows that notice upon opposite party no.2 has been served personally, going by the report of the learned Chief Judicial Magistrate placed at Flag-A. The Court has perused the report of the Chief Judicial Magistrate dated 17.02.2020, as also the enclosed report. Service upon opposite party no.2 is held sufficient by acceptance. A counter affidavit has been filed on behalf of the State. No one has put in appearance on behalf of the second opposite party.
3. The prosecution case according to the First Information Report lodged by the second opposite party is brief. It is alleged that the informant's niece, the prosecutrix, aged 13 years, was at home on 12.01.2019 when two natives of the village, Aadil son of Zakir and Waseem son of Kalua gained entry to the house. Finding the prosecutrix alone, they caught hold of her and carried her to a room inside with an intention to ravish. It is then said that they attempted to ravish her, whereupon the prosecutrix raised alarm, that invited neighbours and others nearby to the place of occurrence, causing the accused to escape. The FIR was registered under Section 376, 511 IPC and Section 7/8 of the POCSO Act. It was registered on 13.01.2019 at 10 minutes past 1 o'clock in the odd hours. The incident took place on 12.01.2019 at 3.40 p.m. It appears that the statement of the prosecutrix was recorded on 13.01.2019, where the prosecutrix alleged accomplished rape by the accused followed by the alarm that she raised. The case was then converted from one under Sections 376, 511 IPC and Section 7/8 of the POCSO Act to a case under Section 376-DA IPC and Section 5Gha/6 of the POCSO Act.
4. The revisionist is a juvenile aged 16 years and 10 months on the date of occurrence. He applied to the Juvenile Justice Board to be adjudged a juvenile. The Board by their order dated 21.05.2019 held him to be below 18 years and, therefore, a juvenile. The revisionist moved the Board for bail which was rejected vide order dated 26.08.2019. The revisionist failing before the Board, appealed to the learned Sessions Judge. The learned Additional Sessions Judge/ F.T.C.-2, Gautam Budh Nagar dismissed the appeal by the order impugned. Accordingly, this Revision has been brought praying that both orders be reversed.
5. Heard Sri Manoj Kumar, learned Counsel for the revisionist and the learned AGA appearing on behalf of the State.
6. This Court must remark that there is one feature about this case, which both the Courts below have singularly missed and not accounted for. The FIR was lodged after some hours of the occurrence by the informant, reporting the incident as one of attempted rape. The FIR that was lodged after sufficient time for the prosecutrix to communicate to the informant, it clearly does not mention accomplished rape; it rather mentions an attempt. It is for this reason that the FIR was registered under Section 376 read with Section 511 IPC, besides the corresponding provisions of the POCSO Act. The prosecutrix in her statement recorded by the police, under Section 161 Cr.P.C. on 13.01.2019 alleged rape by the revisionist, Aadil, whereas the co-accused, Waseem was assigned the role of pinning her down. The prosecutrix in her statement under Section 164 Cr.P.C. has again vacillated. She has said that on the date of occurrence, Aadil (the revisionist) pinned her down, whereas the co-accused, Waseem ravished her. One cannot fail to notice that the prosecution, on the merits of it, stands on shifty and shaky ground. The FIR, which is an informed one, mentions attempt alone with no case about rape. In her statement, under Section 161 Cr.P.C., the prosecutrix alleges rape by the revisionist and assistance in the evil deed by the co-accused, Waseem. By contrast, in her statement under Section 164 Cr.P.C. to the Magistrate, the prosecutrix alleges that the co-accused, Waseem ravished her, whereas the revisionist, Aadil pinned her down and muffled her voice.
7. This Court finds that on such an inconsistent stand by the prosecution, the revisionist, if he were an adult, would have been entitled to bail on merits. The two Courts below have not at all looked to the merits of the case and perfunctorily tested the plea on the requirements of Section 12(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ''the Act'). It is not the law that a juvenile's plea for bail has to additionally pass the test of the three disentitling categories, where bail may be refused to a juvenile under Section 12(1) of the Act, even if on merits an adult would walk free on bail. The provisions of Section 12(1) of the Act are a charter for blanket bail to a juvenile, where an adult cannot expect bail. It is in a case where no adult can be bailed out that the juvenile's bail plea must be tested with reference to the three disentitling categories postulated under the proviso to Section 12(1) of the Act. In case, however, the juvenile would be entitled to bail on merits, it would be patently unfair and discriminatory to further test his case under Section 12(1) of the Act. The Courts below have precisely done that. Even, on the anvil of the three disentitling categories postulated under the proviso to Section 12(1) of the Act also, this Court does not find the minor disentitled to bail.
8. In the result, this revision succeeds and is allowed. The impugned order dated 17.09.2019 passed by the learned Additional District and Sessions Judge/ F.T.C.-2, Gautam Budh Nagar in Juvenile Appeal No.82 of 2019 and the order dated 26.08.2019 passed by the Juvenile Justice Board, Gautam Budh Nagar in Case Crime no.12 of 2019, under Sections 376-DA and Section 5Gha/6 of the POCSO Act, Police Station Rabupura, District Gautam Budh Nagar, are hereby set aside and reversed. The bail application of the juvenile stands allowed.
9. Let the revisionist, Aadil, through his natural guardian/ father, Zakir Husain, be released on bail in Case Crime no.12 of 2019, under Sections 376-DA and Section 5Gha/6 of the POCSO Act, Police Station Rabupura, District Gautam Budh Nagar upon 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, Gautam Budh Nagar, subject to the following conditions:
(i) that the natural guardian/ father, Zakir Husain 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 allowed to be exposed to any moral, physical or psychological danger and further that the father will ensure that the juvenile will not repeat the offence.
(ii) The revisionist and his father, Zakir Husain will report to the District Probation Officer on the third Monday of every calendar month commencing with the third Monday of October, 2020 and if during any calendar month the third Monday falls on a holiday, then on the following working day.
(iii) The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Gautam Budh Nagar on such periodical basis as the Juvenile Justice Board may determine.
(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(v) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(vi) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 13.10.2020 Anoop