Allahabad High Court
Rahul vs State Of U.P. And Another on 5 August, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- CRIMINAL REVISION No. - 936 of 2019 Revisionist :- Rahul Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Raj Kumar Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Raj Kumar, learned counsel for the revisionist and Sri Amit Kumar Singh, learned A.G.A. and perused the record.
The instant criminal revision has been preferred against the judgment and order dated 4.1.2019 passed by 1st Additional Session Judge, Jalaun at Orai in Criminal Appeal No. 49 of 2018 (Rahul vs. State of U.P. and another) arising out of Case Crime No.192 of 2018 under sections 452, 376, 506 IPC, Police Station Kotwali Kalapi District Jalaun at Orai whereby the appeal of the revisionist has been dismissed and upheld the bail rejection order dated 27.11.2018 passed by Chief Judicial Magistrate/Juvenile Justice Board, Jalaun at Orai.
It is argued by the learned counsel for the revisionist that the accused-revisionist has been falsely implicated by the father of the victim, in fact, no such occurrence has taken place. In the statement made by the victim under section 164 Cr.P.C. the names of other accused were also taken of having committed rape upon her but the co-accused has been exonerated by the Investigating Officer while the accused-applicant has been falsely implicated. Nothing has come in the social investigation report against the accused-applicant which would show that in case the accused-applicant is released on bail, he would come in association with hardened criminal or would be exposed to moral, physical or psychological danger or that his release would defeat the ends of justice. The revisionist is in jail since 01.09.2018.
Learned A.G.A. on the other hand has vehemently opposed the quashing of the impugned orders and has stated that the hymen of the victim has been found torn and medical examination report shows that sexual violence cannot be ruled out. In the statement of the victim recorded under section 164 Cr.P.C. she has clearly stated the name of the present accused who committed rape upon her while other co-accused Hari Shanker had caught hold her hands, therefore the present accused is the main accused whose bail application has been rightly rejected.
I have gone through the FIR which says that the victim who was just about 15 years of age was found alone in her house on 31.08.2018 by the accused-applicant, who committed rape upon her when the informant was out of house. After having committed rape, the accused-applicant had called other co-accused named in the FIR by mobile phone who committed gang rape with the victim. When the son of opposite party no.2 came from school, he saw the accused persons along with the victim were in a room thereafter his son had informed the opposite party no. 2 on mobile and thereafter he lodged the present FIR. The accused has been found to be 16 years one month and 28 days old vide order dated 13.11.2018 of the Juvenile Justice Board and hence he has been treated to be a juvenile falling in the bracket of 16-18 years. There does not appear to be any finding of the Juvenile Justice Board with respect to the fact as to whether his trial should be held as adult or minor which was mandatory as per provision of section 18 of Juvenile Justice (Care and Protection of Children) (Amended) Act 2015 hence the Juvenile Justice Board is directed to give the said finding so that no jurisdictional error occurs in the trial of the accused. I have also seen the medical examination report of the victim and in it it is recorded that her hymen was found torn, hence sexual violence cannot be ruled out.
In view of above, I do not find it to be a fit case for bail to the revisionist as his release would result in frustrating the ends of justice and he may be subjected to retribution.
A perusal of the impugned orders would indicate that both the forums below have rejected the bail application of the accused-revisionist only on the ground that if bail is granted, the accused is likely to come into association with hardened criminal and would be exposed to moral, physical or psychological danger and that his release would defeat the ends of justice.
In view of the above, I do not see any infirmity in the impugned orders passed by the Juvenile Justice Board as well as the Appellate Court. Revision deserves to be dismissed and is accordingly dismissed.
However it is directed that the Juvenile Justice Board shall give its finding with respect to the fact as to whether the accused should be tried as major or as juvenile, under section 18 of the Act 2015 in accordance with law within a period of one month and thereafter the appropriate forum shall try to decide this case expeditiously preferably within a period of one year, if there is no legal impediment.
Order Date :- 5.8.2019 AU