Allahabad High Court
Babu @ Sahajram (Minor) Thru. Father ... vs State Of U.P. & Anr. on 17 February, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 6 Case :- CRIMINAL REVISION No. - 132 of 2019 Revisionist :- Babu @ Sahajram (Minor) Thru. Father Panne Lal Opposite Party :- State Of U.P. & Anr. Counsel for Revisionist :- Jay Prakash Singh,Brijendra Kumar Yadav Counsel for Opposite Party :- Govt. Advocate Hon'ble Jaspreet Singh,J.
Heard the learned counsel for the revisionist and the learned A.G.A. for the State-respondent.
The instant revision has been preferred under Section 102 of the Juvenile Justice (Care & Protection of Children) Act, 2015 against the judgment and order dated 12.09.2018 passed by the Juvenile Justice Board, Faizabad in Case Crime No.583 of 2017 under Sections 376, 504, 506 IPC read with 3/4 POCSO Act, relating to Police Station Rudauli, District Faizabad which has been affirmed by the judgment dated 09.01.2019 passed by the Additional Sessions Judge, Faizabad by which the bail application of the revisionist has been rejected.
The submission of the learned counsel for the revisionist is that the revisionist has been held to be a juvenile. The allegations against the revisionist are concocted; inasmuch as the averments contained in the FIR do not indicate that the revisionist was involved in the act of ravishing the modesty of the minor child. It has further been submitted that the statement of the victim recorded under Section 161 also did not implicate or contain any ground charging the revisionist with the offence under Section 376 IPC. It is only when the statement was recorded under Section 164 Cr.P.C. that an allegation has been made against the revisionist which is not borne out or corroborated by the medical evidence and report. It has further been submitted that the report of D.P.O. has also not been considered in the correct prespective whereas upon an assessment, the D.P.O. report indicated that there is no such material available on record by which it can be ascertained that there is any danger to the revisionist if he is enlarged on bail, that he would be associated in the company of known criminals or that by releasing him he would be subjected to physical, moral or psychological danger and least of all if the revisionist is released it is going to defeat to ends of justice.
Without considering the aforesaid and there being no material on record to substantiate the aforesaid, orders passed by the two courts suffer from legal error and are liable to be set aside and the revisionist has been in jail since 21.12.2017.
Learned A.G.A. has opposed the revision and has submitted that the allegation against the revisionist in the statement under Section 164 Cr.P.C. are grave in nature and as such the two courts have rightly exercised their powers and discretion in refusing to enlarge the revisionist on bail. Consequently, the revision deserves to be dismissed.
The Court has considered the submissions of the learned counsel for the parties and also perused the record.
At the very outset, it may be noted that the provisions for grant of bail are contained in Section 12 of the Juvenile Justice Act, 2015. From the perusal of the aforesaid, it would indicate that while considering the application for bail of a juvenile, it is necessary that the three active ingredients mentioned therein have to be assessed. Where the juvenile is over the age of 16 years and under 18 then in terms of Section 15 an assessment has to be made as to the fact whether the juvenile was capable of understating the import of his acts as well as its consequence.
Considering the aforesaid it would be relevant to point out that these are the material ingredients which enable the court to form its opinion regarding enlargement of bail of a juvenile. In this regard certain proposition laid down by a Co-ordinate Bench of this Court in the case of Gurjeet Singh Vs. State of U.P. & others reported in 2008 (105) Allahabad Crl. Cases 74 wherein the Co-ordinate Bench of this Court relying upon the decision of the Apex Court in the case of Om Prakash Vs. State of Rajasthan and another report in 2012 (5) SCC page 201 and it has been held as under:-
"3. Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of children/juvenile by the juvenile court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a juvenile court or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held.
23. ...... Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of 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 taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him."
A Co-ordinate Bench of this Court in the case of Nitin Kumar @ Tushar Vs. State of U.P. reported in 2019 (107) ACC 930 has considered the scheme of the Juvenile Justice Act and the relevant paras 8 to 11 read as under:-
8. Section 12 of Juvenile Justice Act, 2015 by the amended Act the criteria for bail under section 12 of the Juvenile Justice Act has not been changed and provision has been made under Section 12 of the Act that when any person accused of a bailable or a non-bailable offence and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution except when
1. if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or
2. that it will expose him to moral, physical or psychological danger, or
3. that his release would defeat the ends of justice.
9. It has been held by the supreme court in Dr. Subramaniam Swamy vs Raju, 2014 (86) ACC 637 that a juvenile has to be released on bail unless the court has a reasonable ground to believe that his release will bring him into association of some known criminal, or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice.
10. Section 15 of the Amending Act only provides for transfer of a juvenile to the Children Court for trial as an adult. Where the child has attained the age of 16 years and has been alleged to have committed heinous offence, the JJ Board is required to conduct a preliminary inquiry with regard to his mental and physical capacity to commit offence, ability to understand the consequence of the offence and the circumstances in which the offence was committed considering their physical, psychological and mental status in commission of crime. Section 18(3) of the Act provides that after making the assessment under section 15, JJ Board comes to a conclusion that there is a need for trial of the child as an adult, the Board may pass an order for the transfer of the trial of the case to the Children Court.
11. It is pertinent to mention here that Section 12 of the Juvenile Justice (Care and Protection of Children) Act has not been amended so far as the parameters and yardstick for granting bail to the juvenile-accused is concerned. Therefore, while rejecting the bail application of such juvenile, it cannot be the criteria that the alleged offence is of serious and heinous nature. The order must show that the grant of bail to the juvenile-accused is against his interest as there is possibility of his being associated with known criminals, or there is some short of moral, physical or psychological danger to him or there is likelihood of end of justice being defeated. All these conditions have been incorporated in law in order to ensure justice to the juvenile.
Applying the aforesaid parameters to the present case at hand, it would indicate that an FIR was lodged on 10.12.2017 wherein it was alleged that the victim was a minor girl of 16 years and that she was suffering from an upset stomach and had gone to relieve herself. While she was returning, two persons, namely, the revisionist and his friend Arvind had eve teased the victim. She was disturbed by the aforesaid act and made a noise. At that point of time, the revisionist and his friend left, however, threatened that in case if the aforesaid incident was reported, they would throw acid on her face. It is in the aforesaid backdrop that the victim informed her father of the aforesaid and thereafter the FIR was lodged.
From the perusal of the record, it would indicate that the statement of the victim was recorded on 10.12.2017 wherein the allegations contained in the FIR were reiterated. However, when the statement of the victim was recorded on 13.12.2017 i.e. after three days, at this point of time the victim gave a completely different version altogether and had categorically stated that while she was returning home after relieving herself, Arvind and the revisionist had attacked her from the back. They undressed her and the revisionist had forced himself and ravished her modesty while the other Arvind stayed away. The threat was given that in case if the aforesaid incident was reported, the revisionist would throw acid on her face.
The medical report was called for and the medical examination was held on 18.12.2017. From the perusal thereof it has been reported that there is no clear sign of any recent sexual assault. It also indicated that the version given by the victim does not find corroboration; inasmuch as the medical report indicated that the hymen was intact.
The D.P.O. report if considered indicates that as far as the revisionist is concerned, he does not have any such temperamental behaviour which may put in danger the life of the revisionist, if he is enlarged on bail. It indicates that on account of lack of parental guidance as well as uneducation the revisionist has fallen in bad company which could be the cause for such act. However, in case if proper guidance is given, the same would be in the better interest of the juvenile.
Upon considering the record, it would indicate that both the Juvenile Board as well as the Sessions Court did not consider this aspect of the matter. Even the proposition as noted herein above first has also not been considered while rejecting the bail application which has been affirmed in appeal by the Sessions Court.
The fact remains that the juvenile has been in the protective home since 21.10.2017 and as far as the D.P.O. report is concerned that also does not indicate any circumstances which gives rise to any perception that in case if the revisionist is enlarged on bail he would be subjected to the company of known criminals or that he would be subjected to physical, psychological and moral danger.
There is also nothing on record to indicate that the enlargement of the revisionist on bail is going to defeat the ends of justice. In the facts and circumstances of the case and looking into the material brought on record without commenting on merits, this Court is of the firm opinion that the two courts have not correctly considered the application in the correct prespective and the order dated 12.09.2018 passed by the Juvenile Justice Board, Faizabad as well as the judgment dated 09.01.2019 passed by the Additional Sessions Judge-I, Faizabad are liable to be set aside.
The revision is allowed and the impugned orders dated 09.01.2019 and 12.09.2018 are set aside and the revisionist shall be entitled to be released on bail subject to executing a personal bond by his guardian and two sureties in the like amount to the satisfaction of the Board concerned in terms of the following conditions:-
(i) that the natural guardian/father Panne Lal will furnish an undertaking that upon release on bail the juvenile will not be permitted to go into contact or association with any known criminal or expose to any moral, physical, 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 shall be placed in a school and will be encouraged to study and will not allow him to waste time in unproductive and mere recreational pursuits.
Order Date :- 17.2.2020 ank