Allahabad High Court
Deepak @ Bhoora vs State Of U.P. And 3 Others on 23 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 92 Case :- CRIMINAL REVISION No. - 858 of 2022 Revisionist :- Deepak @ Bhoora Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Subhash Chandra Yadav,Vimlesh Kumar Counsel for Opposite Party :- G.A. Hon'ble Gajendra Kumar,J.
1. It appears that name of the revisionist-juvenile has been disclosed in the memo of revision. This fault from the side of revisionist escaped detection by the Registry. The concerned Officer of the Registry is directed to delete the name of the revisionist-minor from the title of the revision as fed and shown in the data on website and represent him as "Minor 'X' Through His Natural Guardian Father Arjun Singh".
2. Heard learned counsel for the revisionist, learned AGA for the State as well as learned counsel for the private respondents and perused the record.
3. This criminal revision under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015, has been filed on behalf of the minor 'X' through his natural guardian/father Arjun Singh s/o Mohan singh, R/o Village- Gokulpur, Police Station Nidhauli Kalan, District Etah with the prayer to admit the minor on bail alongwith the prayer to set aside the order dated 15.11.2021 passed by the Juvenile Justice Board, Etah and order dated 20.01.2022 passed by the Additional District and Sessions Judge/Special Judge, POCSO Act, Etah in Criminal Appeal No.48 of 2021 arising out of Case Crime No.26 of 2019 under Section 376-D, 354, 506, 452, 306 IPC and 4 POCSO Act, Police Station-Nidhauli Kalan, District- Etah by which the criminal appeal No.48 of 2021 was rejected.
4. As per the prosecution version, instant FIR has been lodged by Veerpal Singh, father of the victim, alleging therein that his minor daughter/victim was being teased and molested since after Diwali festival by the juvenile son of Arjun along with his cousin brother Pushpendra and Manpal. and the complaint's family along with victim were also terrorised and threatened with dire consequences by them. In the evening of 23.02.2021, Juvenile and Manpal had caught the victim near Marghat with bad intention when they (accused) were returning back from the house of the victim after taking 'Aata'. On hearing the scream of the victim, some people came on the spot, thereafter she save herself. Thereafter, when victim came to her house and told about the said incident to her mother, and on getting information about the above incident, the complainant's wife scolded the juvenile and Manpal for which, the victim was threatened and scared in the said night by the juvenile and other accused persons. On 24.02.2021, at about 05:00 am, when victim was making tea in her house, finding her alone, the juvenile trespassed into the house and caught her; when she tried to save her, then the juvenile poured diesel upon her and set her on fire with the intention to kill her. Thereafter, victim in burnt condition was brought by Munnesh R/O Fatehpur in Bolero vehicle to Etah Distt. Hospital, Whereafter first aid, she was sent in an ambulance to Aligarh Medical College. According to the complainant, victim has been gangraped by the accused-persons, due to which she was pregnant and after treatment of some days, ultimately she died on 15.03.2021. Hence, F.I.R regarding this incident was lodged on 03.03.2021 at about 14:40 hours being case crime no. 26/2021 u/s 376-D, 354, 506, 452, 307 I.P.C and 4 POSCO act, at P.S Nidhauli Kalan, Distt. Etah against the Juvenile, Pushpendra and Manpal, in which after investigation charge-sheet has been submitted against the juvenile and Malla @ Manpal u/s 376-D, 354, 506, 306 I.P.C and 4 POSCO Act, on which cognizance has been taken by the Court of Special Judge (Exclusive POSCO Act), Etah on 06.05.2021.
5. During the proceedings before the Juvenile Justice Board, the revisionist was found to be the age of 16 years, 10 months and 13 days on the date of the incident and was declared juvenile vide order dated 04.10.2021. A bail application through guardian was moved before the Juvenile Justice Board, Etah, but the same was rejected. Thereafter, a criminal appeal No.48/2021 was preferred by the father and guardian of the juvenile and the same was also dismissed vide order dated 20.01.2022.
6. Aggrieved by the above orders, this criminal revision has been preferred to set-aside the same and to admit the juvenile to bail.
7. First and foremost contention is that gravity of the offence is not relevant consideration for refusing bail to the juvenile as has been held by a coordinate Bench of that Court in Criminal Revision No. 379 of 2009 (Shiv Kumar vs. State of U.P.) decided on 22.12.2009, Criminal Revision No. 4141 of 2017 (Dharmendra vs. State of U.P.) decided on 13.04.2018, Criminal Revision No.1693 of 2021 (Juvenile X vs. State of U.P.) decided on 22.02.2022 and Criminal Revision No.860 of 2022 (X vs State of U.P.) decided on 21.03.2022 and Criminal Revision No.1852 of 2015 (Amit vs. State of U.P.) decided on 16.03.2016.
8. In Criminal Revision No. 1852 of 2015 (Amit vs. State of U.P.) decided on 16.03.2016, the Court referred to the earlier judgement in Vijendra Kumar Mali vs. State of U.P., 2003 (1) J.I.C. 103, wherein it was observed that in a number of judgements, it has been categorically held that bail to the juvenile can only be refused if one of the grounds as provided in proviso to Section 12(1) of the Juvenile Justice Act, 2015 exists. So far as the ground of gravity is concerned, it is not covered under the relevant provisions. If the bail application of the juvenile was to be considered under the provisions of Cr.P.C., there would have been absolutely no necessity for the enactment of the aforesaid Act. The Section 12 of the Act contains a non-obstante clause, which indicates that the general provisions of Cr.P.C. shall not apply. Therefore, the gravity or seriousness of the offence should not be taken as an obstacle or hindrance to refuse the bail to delinquent juvenile.
9. It is contended that there existed no material to justify rejection of bail on the grounds envisaged in Section 12 of the Act. In view of the above provisions, the 'child in conflict with law', who has been in custody for quite some time deserves to be released on bail otherwise, the purpose of provisions of Section 12 of the Juvenile Justice Act shall stand defeated. It is also contended that care of the juvenile in a child care institution cannot be preferred over his care in his biological family.
10. Learned AGA and learned counsel for the respondent no. 2 have opposed the prayer for bail.
11. The court is conscious of the fact, which has been held in case of Om Prakash vs. State of Rajasthan and another; (2012) 5 SCC 201, wherein the Hon'ble Apex Court observed that the Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of juvenile as it was felt that child 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. It was further observed that in cases when an accused is involved in grave and serious offence which he committed in a well planned manner reflecting his maturity of mind the court ought to be more careful. Thus, the Hon'ble Apex Court has clearly brought in focus the nature of crime, conduct of an accused as reflected in the method employed in the commission of crime as a relevant consideration while considering the matters of juvenile.
12. It may be noted that the Hon'ble Apex Court gave this view in the background of the facts that age of the juvenile as determined by the courts below was not free from doubts. In the circumstances, the Court observed that where accused commits grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording his age, is not acceptable. It is also observed that the shelter of the principle of benevolent legislation of the Juvenile Justice Act is meant for minors, who are innocent law breakers. Nevertheless, in my view, the nature of crime the juvenile was found involved in, is again at the center stage.
13. In Mangesh Rajbhar Vs. State of U.P. and Another; 2018 (2) ACR 1941, a coordinate Bench of this Court noted down very important observations which I choose to refer avidly:
"13. No doubt, the Juvenile Justice Act is a beneficial legislation intended for reform of the juvenile/child in conflict with the law, but the law also demands that justice should be done not only to the accused, but also to the accuser."
25. It is not that this aspect of the gravity of the offence has been considered irrelevant to the issue of grant or refusal of bail to a minor in the past and before the present Act of 2015 came into force. In a decision of this Court under the Juvenile Justice Act, 2000 where the interest of the society were placed seemingly not on a level of playing field with the juvenile, this Court in construing the provisions of Section 12 in that Act that were pari materia to Section 12 of the Act in the matter of grant of bail to a minor held in the case of Monu @ Moni @ Rahul @ Rohit v. State of U.P., 2011 (74) ACC 353 in paragraph Nos. 14 and 15 of the report as under:
"14. Aforesaid section no where ordains that bail to a juvenile is a must in all cases as it can be denied for the reasons"......if there appears reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice."
15. In the light of above statutory provision bail prayer of the juvenile revisionist has to be considered on the surrounding facts and circumstances. Merely by declaration of being a juvenile does not entitle a juvenile in conflict with law to be released on bail as a matter of right. The Act has a solemn purpose to achieve betterment of juvenile offenders but it is not a shelter home for those juvenile offenders who have got criminal proclivities and a criminal psychology. It has a reformative approach but does not completely shun retributive theory. Legislature has preserved larger interest of society even in cases of bail to a juvenile. The Act seeks to achieve moral physical and psychological betterment of juvenile offender and therefore if, it is found that the ends of justice will be defeated or that goal desired by the legislature can be achieved by detaining a juvenile offender in a juvenile home, bail can be denied to him. This is perceptible from phraseology of section 12 itself. Legislature in its wisdom has therefore carved out exceptions to the rule of bail to a juvenile."
14. I am in respectful agreement with the above observations. Ordinarily, the merits of the matter may not be important where the Courts are inclined to give benefit of bail as envisaged in Section 12 of the Juvenile Justice Act, I am of the firm view that nature of crime including other merits of the matter may assume ample significance when the Court has to form an opinion about the ends of justice. It may be noted that the phrase 'ends of justice', cannot stand in a vacuum. The manner of commission of the crime, the nature thereof cannot be ignored while striking a balance between the demands of justice of either of the sides. Hence, it cannot be said that the nature of the crime, the manner or methodology applied, the extent of involvement and evidence available are of no relevance when judging the entitlement of a juveniles to bail in cases where heinous crimes are committed. The ends of justice is undoubtedly a meaningful phrase with multidimensional implications. The Courts are under obligation to address the concerns of both the sides and strike a delicate balance between the competing and often conflicting the demands of justice. When viewing the matters of bail from this particular angle of deciphering the ends of justice not only the nature of crime, but the manner of commission thereof, methodology applied, the mental state, the extent of involvement, the evidence available shall be the factors to reckon with. The phrase 'ends of justice' may bring in within its interpretation such factors which may otherwise seem not so material or may be seemingly extraneous, irrelevant or unimportant at first glance for the purpose of applicability of last part of the proviso to Section 12(1) of the Juvenile Justice Act.
15. Following facts cannot go in oblivion that victim was admitted in the hospital on 24.02.2021 with suicidal thermal burns by kerosene; gang-rape has been committed with the victim by the juvenile and other accused; at the time of admission in the hospital she was pregnant; On request of her family, victim underwent Medical Termination of Pregnancy (MTP); victim was managed with regular debridement, fasciotomey for right hand and forearm, intraveinous fluids, antibiotics and other supportive medication, and ultimately, she died due to septic shock on 15.03.2021. Statement of the victim recorded as dying declaration, as well as Post-mortem Report of the victim dated 15.03.2021 has also supported the story of the prosecution.
16. In nutshell, it can be inferred that the juvenile was found to have complicity in this frightful crime. The juvenile was found above 16 years i.e., 16 years, 10 months and 13 days on the date of the occurrence. It was a borderline case where the accused was reaching the age of adulthood. The manner, in which, the crime was committed and the nature thereof impels me to draw a conclusion that in case the juvenile is released on bail, he shall fall of in the same hands and environs which most probably contributed towards his criminal bent of mind.
17. This Court has considered the rival submissions and perused the record. It may be true that the Courts below have not undertaken a careful exercise by evaluating the social investigation report while forming their opinion on the first of the two dis-entitling parameters under the proviso to Section 12 of the Act, that is to say, the prospect of release bringing the child in conflict into association with some known criminal or exposing him to moral, physical or psychological danger. But, that does not end the matter. It is a case where the revisionist, though below the age of 17 years, has ravished a very young prosecutorix. About the factum of the incident, there is reasonable assurance at this stage, short of the charge being tested at the trial. The prosecution is consistent in the FIR lodged by the prosecutorix's father, the statement of the prosecutorix and her mother, recorded by the police, under Section 161 Cr.P.C. and the statement of the prosecutorix, as dying declaration, in which she has stated that juvenile along with Manpal used to tease and catch her wherever and whenever they wish and she got pregnant, when she apprised them about the same, they said to her to set herself on fire and resultantly she self immolated herself.
18. In view of the above, this Court wishes to say is that for the present, the Court seized as it is of the bail matter, there is a reasonable assurance about the charge being prima facie credible. It is true that the merits of the case or prima facie tenability of the charge, like an adult, is not entirely decisive to the fate of the bail plea. At the same time, it is not altogether irrelevant. The gravity of the charge, manner of its perpetration, circumstances in which the offence is alleged to have been committed, its immediate and not so immediate impact on the society at large and the locality, in particular, besides its impact on the aggrieved family, are all matters to be taken into reckoning while judging a juvenile's bail plea. All these factors are relevant under the last dis-entitling clause postulated under the proviso to Section 12(1) of the Act, which says that release of the juvenile would ''defeat the ends of justice'. After all ''defeat the ends of justice' is not a word of art. It has been thoughtfully introduced by the legislature to arm the Court with a right to overcome an otherwise absolute right to bail, where in the totality of the circumstances, release on bail would adversely impact the law and order and the equilibrium of an ordered society.
19. The case in hand shows that the revisionist by his action, if true, has put the society and its surroundings on alarm. His actions have led to a situation, where prima facie no child of tender years, and more than that the parents or the guardians of a young child, would feel safe during their daily routine, when there is nothing otherwise to call extra caution. In the opinion of this Court, it is a case where release of the child in conflict with law would lead to ends of justice being defeated.
20. The learned appellate Court and the Board have given concurrent view and have found him not at all entitled to bail and have given observation that an effective protection and supervision is needed. Such an observation for declining the bail cannot be faulted in the totality of the circumstances of the matter. I am of the view that it is not a fit case to grant bail to the present revisionist.
21. The revision is, accordingly, dismissed.
22. Copy of the order be sent to concerned Section of the Registry for immediate compliance of direction given in Para-1 of the order.
Order Date :- 23.9.2022 Ashutosh