Allahabad High Court
Ankush Pandey (Minor) Thru.Father ... vs State Of U.P. & Anr. on 24 July, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH In Chamber Case :- CRIMINAL REVISION No. - 1312 of 2019 Revisionist :- Ankush Pandey (Minor) Thru.Father Chandra Prakash Pandey Opposite Party :- State Of U.P. & Anr. Counsel for Revisionist :- Dinesh Kumar Counsel for Opposite Party :- Govt. Advocate,Mahesh Kumar Sharma Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned counsel for the revisionist, learned A.G.A. for the State as well as Shri Mahesh Kumar Sharma, learned counsel for opposite party No.2 through Video Conferencing and perused the record.
This Criminal Revision has been preferred on behalf of the Juvenile/Ankush Pandey aged about 17 years through his father and guardian Chandra Prakash Pandey against the orders dated 29.08.2019 passed by Special Judge, POCSO Act, Court No.8, Barabanki in Criminal Appeal No. 37 of 2019 and against the order dated 22.07.2019 passed by the Juvenile Justice Board, Barabanki, whereby the bail applications of the revisionist was rejected in Case Crime No. 64 of 2019, under Sections 452, 376 I.P.C. and Section ¾ POCSO Act and Section 3(2)(v) of S.C./S.T. Act, Police Station Subeha, District Barabanki.
Relevant facts necessary for the disposal of this revision are that in the instant matter First Information Report was lodged by respondent No.2 against Juvenile Ankush on 30.03.2019 at 16:52 hours, Police Station Subeha, District Barabanki stating therein that on 30.03.2019 at about 4:00 am in the morning informant had gone to his fields for agricultural work and his wife Ramraja had gone to ease herself and therefore prosecutrix (his daughter) aged about 14 years was sleeping in the hut and the door of the house was open. It is further stated that accused Ankush entered their house and dragged their daughter and after making her nude molested her. His daughter raised an alarm and when his wife arrived at her home, accused fled away from the scene and on ''hue and cry' made by his wife persons residing nearby assembled at his house.
On the basis of the aforesaid information, an F.I.R. at Case Crime No. 64 of 2019 was registered under Section 354 (kha), 452 I.P.C. and Section 7/8 POCSO Act.
During the course of investigation, the statement of prosecutrix was recorded under Section 161 and 164 of the Cr.P.C. and the investigation was converted under Section 376 of I.P.C. and 3(2)(v) S.C./S.T. Act also.
Vide order dated 06.07.2019 the revisionist was declared Juvenile and no objections appear to have been made by any party pertaining to this determination of the age of juvenile. Revisionist moved an application before the Juvenile Justice Board, Barabanki,for enlarge him on bail, which was rejected vide order dated 22.07.2019. Thereafter, appeal against the said order was preferred to the Sessions Judge, which was ultimately decided by Special Judge, POCSO Act, Court No.8, Barabanki and by impugned order 29.08.2019 appeal of the revisionist was dismissed on the ground that revisionist has committed an heinous offence and he is not under the control of his parents and if he is released on bail, it could not be ruled out that he may be exposed to moral and physical danger.
Aggrieved by the order of the Juvenile Justice Board, Barabanki and Special Judge, POCSO Act, this criminal revision has been preferred by the revisionist/accused.
Learned counsel for the revisionist while pressing the revision petition submits that revisionist is innocent and had committed no offence and he has been falsely implicated in this case and the Appellate Court as well as learned Juvenile Justice Board materially erred in rejecting the bail application of the accused/revisionist moved under Section 12 of the Juvenile Justice Act.
It is further submitted that there is no material on record to believe that there are reasonable grounds that the accused, if released on bail, is likely to come in association with any known criminal or may expose himself to moral, physical or psychological danger or his release would otherwise defeat the ends of justice.
It is further submitted that the houses of the revisionist and prosecutrix are situated adjacent to each other and there is enmity between their families and the complaint has only been made due to ''Village Party Bandi'.
It is further submitted that in the statement of victim recorded under Section 161 Cr.P.C. no averment of rape has been made, while the statement under Section 164 of the Cr.P.C. was recorded on 01.04.2019 wherein the allegation of rape has been made and, therefore, the statement of Section 161 and 164 Cr.P.C. are contradictory.
It is further submitted that no injury has been found on the person of the victim in her medical examination and she also did not raise any alarm, which suggests that the victim was a consenting party. No spermatozoa has either been found in the pathological lab report.
It is further submitted that the revisionist is a student and is detained in prison in this case since 27.04.2019 and if he will remain further detained in the prison, his whole career will be destroyed. It is also submitted that Juvenile Justice Board, Barabanki as well as the Special Judge, POCSO Act has not considered the report of the District Probation Officer in right perspective and has rejected the prayer of bail of the revisionist on technical grounds.
Learned A.G.A., however, have supported the judgment/order of the Juvenile Justice Board as well as the order of the Appellate Court and submits that keeping in view the nature and gravity of the offence, no illegality has been committed by the Juvenile Justice Board or the Appellate Court in rejecting his prayer of bail.
It is further submitted that release of the revisionist on bail may bring him in association with known criminals and may also expose him to moral and physical danger, therefore, the revision is not having any force and the same may be dismissed.
Learned counsel for respondent No.2 also opposes the prayer of bail of the revisionist on the ground that the revisionist has committed a heinous offence and, therefore, he is not liable to be released on bail.
I have heard learned counsel for the parties and have perused the record.
A report of District Probation Officer, Barabanki dated 20.07.2019 is available on record. Perusal of this report reveals that after making spot inspection, District Probation Officer, Barabanki reported that the villagers residing nearby the house of the revisionist have stated that Juvenile, Ankush Pandey is a person of normal character and use to do agriculture work. He is not having any criminal antecedents. It is also reported to him that some days before the instant incident, a quarrel had happened in between the families of prosecutrix and revisionist over a Government hand-pump. It is also stated in the report that the Juvenile has passed Class VIII and is having cordial relations with other students and friends. However, it is also stated in the report that the possibility of exposure of juvenile-revisionist could not be completely ruled out.
Before proceeding further it is fruitful to reproduce Section 12 (1) of The Juvenile Justice (Care and Protection of Children) Act, 2015, which speaks about the conditions pertaining to the release of juvenile on bail, as under:-
Sec.12(1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by thepolice or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person. Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.
Thus, section 12 of the Act lays down only three contingencies in which the bail can be refused to juvenile. These are:
(1) if the release is likely to bring him into association with any known criminal, or (2) expose him to moral, physical or psychological danger, or (3) that his release would defeat the ends of justice.
In Bhola @ Satender v/s State Of U.P. 2015 (2) JIC 38(Allahabad), MANU/UP/1125/2014 this Court has held as under :-
"12. The Juvenile Justice Act is a beneficial and social-oriented legislation, which needs to be given full effect by all concerned whenever the case of a juvenile comes before them. In absence of any material or evidence or reasonable ground to believe that the delinquent juvenile, if released on bail is likely to come into association with any known criminal or expose him to moral, physical or psychological danger, it cannot be said that his release would defeat the ends of justice."
Similar view has been expressed by this Court in Mukesh v/s State of UP 2015 (2) JIC page 740, Ranjit Yadav v/s State Of UP, 2015 (2) JIC page 738, Ajay @ Abhinay Kumar v/s State of UP 2015 (2) JIC page 223 (Allahabad).
Hon'ble Supreme Court in the case of Om Prakash Vs. State of Rajasthan and Ors reported in (2012) 5 SCC 201 however has brought in due concern in matter relating to juvenile where the alleged offences committed by the juvenile are heinous like rape, murder, gang rape etc and has indicated that in such matters the nature and gravity of the offences would be relevant and the minor (juvenile) can not getaway by shielding himself behind the veil of minority. It was held by their Lordship that Juvenile Justice Act was enacted with a laudable object of providing a separate forum for holding trial of children by the juvenile court as it was felt that children became delinquent by force of circumstances and not by choice. Hence, they need to be treated with care and sensitivity, while dealing and trying cases of criminal nature. It was further highlighted by their Lordship that if the conduct of an accused or the method and manner of the commission of the offence indicates evil and well planned design of the accused committing the offence, which indicates more towards the mature skill of an accused than that of a innocent child, then in the absence of any reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major, cannot be allowed to be ignored by taking shelter of the principle of beneficial legislation like the Juvenile Justice Actsubverting the court of justice, which is meant for minors or innocent law breakers and not accused of mature mind who uses the plea of minority as a ploy to shield and protect himself from the sentence of the offence committed by him.
The above case laws thus suggest that no strait jacket formula maybe adopted for grant or refusal of facility of bail to juvenile in conflict with law and it will depend on the facts and circumstances of each case as well as the manner and method whereby the alleged offence has been committed by the juvenile to gauge as to whether the act of the juvenile attracting penal consequences, has been done with sufficient maturity, skill and evil design, which can be attributed only to a major person or whether the penal act of the juvenile is an act of an innocent law breaker. Needless to say that every case will have to be decided on its merits, demerits and evidence which is being placed against the juvenile as well as the previous criminal history of the juvenile. The gravity of the offence certainly cannot be the sole guiding factor, but the manner and method of the commission of the offence could certainly be taken into consideration while deciding the plea of bail of a juvenile.
Perusal of the order of the Appellate Court as well as the order passed by the Juvenile Justice Board would reveal that the prayer of bail of the revisionist has been rejected mainly on the ground that revisionist if released on bail, may be exposed to moral or physical danger and also that he has committed an heinous offence. Perusal of the report of District Probation Officer, Barabanki would reveal that nothing has been stated therein which may suggest as to how the release of juvenile on bail may expose him to moral or physical danger. To the contrary report of District Probation Officer suggests that the juvenile-revisionist is having normal behavior and also having cordial relations with neighbours and friends without any criminal antecedents and also that few days before the incident, some quarrel over the Government Hand Pump had taken place between the families of informant and revisionist. The report of District Probation Officer also do not suggest that the juvenile was in the company of any criminal either known or unknown.In absence of any supporting material, the opinion of the District Probation Officer, with regard to the fact that possibility of juvenile coming in contact with any criminal could not be ruled out, could not be believed.
Perusal of the report of District Probation Officer would further reveal that the families of prosecutrix and revisionist are residing nearby. He is detained in prison in this case since 27.04.2019.
In my considered view, having regard to the above factual and legal position, it does not appear to be a case where grant of bail to the juvenile-revisionist would act against his interest.
Having regard to the totality of facts including the report of District Probation Officer, Barabanki and detention of accused, it appears in the interest of justice and also in the interest of juvenile that a chance to reform, may be provided to the revisionist. The Juvenile Justice Board as well as the Appellate Court was duty bound to infer from the positive evidence or material available on record to see as if any of the grounds enumerated under Section 12 of the Juvenile Justice Act, 2015 were available and if these grounds were not available, the juvenile-revisionist should have been released on bail, acting otherwise would defeat the beneficial purpose of Juvenile Justice Act. In absence of any such material on record and also in the background of the report of District Probation Officer, the impugned orders passed by the Juvenile Justice Board, Barabanki and Special Judge, POCSO Act, Barabanki are not sustainable and the same are not in conformity with the beneficial provisions of the Juvenile Justice Act. Thus the impugned orders, therefore,deserves to be set-aside and the revision is worth allow.
For the reasons mentioned herein-before, I find force in the revision and the same is thus allowed and the orders dated 29.08.2019 passed by Special Judge, POCSO Act, Court No.8, Barabanki in Criminal Appeal No. 37 of 2019 and dated 22.07.2019 passed by the Juvenile Justice Board, Barabanki, whereby the bail applications of the revisionist were rejected, are hereby set-aside.
Let Revisionist/Ankush Pandey be enlarged on bail in the above mentioned case on executing a personal bond by his father/natural guardian, Chandra Prakash Pandey with two reliable sureties to the satisfaction of the Court below and on submission of undertaking on affidavit by his father/natural guardian before the Court below/Board that he will take due care of the juvenile/revisionist and will not allow him to indulge in any unlawful or criminal activity or joining the company of any unlawful element and will keep him under strict control, shall also not attempt to tamper with the evidence or threaten the witnesses, shall not seek any adjournment on the date fixed for evidence , shall remain present before the trial Court on each date fixed, either personally or through his counsel failing which the facility of bail granted to Juvenile will be canceled.
It is reported that in view of the COVID-2019 pandemic certified copy of this order may not be easily available to the revisionist. In view of this the revisionist may obtain computer generated copy of this order from the official website of this Court and file the same after self attesting it, before the concerned Magistrate/Court/Authority/Board, who shall verify its authenticity from the official website of this Court and proceed further in view of the direction issued by a Division Bench of this Court vide order dated 06.4.2020, passed in Suo-Motu PIL No.564 of 2020.
Office is also directed to transmit a copy of this order to Court/Board concerned through District Judge, Barabanki.
Order Date :- 24.07.2020 Praveen