Allahabad High Court
Aman @ Bablu (Minor) vs State Of U.P. And Another on 16 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1465
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL REVISION No. - 4356 of 2019 Revisionist :- Aman @ Bablu (Minor) Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rajesh Kumar Namdev Counsel for Opposite Party :- G.A.,Nagendra Kumar Singh Hon'ble J.J. Munir,J.
This Revision has been carried from an order of Sri Ramesh Chandra, the learned Sessions Judge, Budaun dated 21.10.2019, passed in Criminal Appeal No. 42 of 2019, dismissing the appal, and, affirming the order of the Juvenile Justice Board, Budaun dated 10.10.2019 declining the revisionist's bail plea in Case Crime No. 141 of 2019 under Sections 323, 376DA IPC and Section 5/6 POCSO Act, P.S. Ughaiti, District Budaun.
Heard Sri Shivendra Raj Singhal, Advocate for the revisionist and the learned AGA for the State.
No one appears on behalf of opposite party no. 2, though the said opposite party is represented through learned counsel. A notice has been served upon learned counsel appearing for the second opposite party by the learned counsel for the revisionist. A copy of the notice is being retained on record.
The prosecution case, according to the FIR lodged by the second opposite party, is that the informant's daughter aged about 12 years was proceeding home from their shop on 03.07.20019 at about 09:00 O'clock in the evening hours when she was waylaid by Aman @ Bablu (the revisionist) and Gaurav, who pounced upon her, stiffled her voice and dragged her to a lonely spot. It is further said that they molested her and let her go. During this period of time, the informant went about searching his daughter, who narrated the entire incident on returning home. The report was admittedly lodged after the prosecutrix had shared what had befallen her with her father, the second opposite party. According to the prosecution in her statement under Section 164 Cr.P.C. recorded on 09.07.2019 the prosecutrix brought up an allegation of rape against both the accused, that is to say, Amann @ Bablu (the revisionist) and Gaurav.
It is pointed out by Sri Shivendra Raj Singhal, learned counsel for the revisionist that co-accused Gaurav, against whom there are identical allegations and is an adult, has been admitted to bail by this Court vide order dated 25.02.2020 passed in Criminal Misc. Bail Application No. 598 of 2020. The submission of learned counsel for the revisionist is that once allegations against the juvenile-revisionist and the co-accused, an adult are identical, it would be the travesty of justice to refuse bail to the juvenile, where the adult is granted that liberty. He has placed before this Court a copy of the bail order dated 25.02.2020 passed in the bail application, above mentioned.
This Court has perused the said order.
Learned AGA submits that the offence is heinous in nature, where the prosecutrix who is a minor has been ravished by the revisionist and the co-accused. In these circumstances, according to the learned AGA, the revisionist is not entitled to bail as his case would fall in more than one of the disentitling categories envisaged under the proviso to Sub-section (1) of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, the Act). Learned AGA, however, does not deny for a fact that the adult co-accused, Gaurav has been admitted to the concession of bail by this Court.
This Court has carefully considered the rival submissions. The provisions of Section 12 of the Act are extracted below:
"Section 12- Bail to a person who is apparently a child alleged to be in conflict with law (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 the police 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.
(2) When such person having been apprehended is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.
(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."
The rule in a case of a juvenile is bail and it is only in the three exceptional categories carved out under the provisio to sub-section (1) of Section 12 of the Act that bail to a juvenile could be refused. This Court notices the fact that the juvenile in this case was aged 13 years and 15 days on the date of occurrence, going by his date of birth mentioned in the social investigating report dated 09.102.2019. He is thus a juvenile, who is decidedly under the age of 16 years. The entire gamut of the prosecution allegations fasten identical blame and assign an identical role, both to the juvenile and the adult co-accused, Gaurav. Now, the provisions of Section 12(1) of the Act engraft a general rule of bail to every juvenile and then carve out the three disentitling categories in the proviso.
The purpose and intent of Section 12 of the Act read as a whole is to ensure bail to a juvenile, even in those cases where an adult offender would not be entitled to it. In case, where the adult offender is not entitled to bail, a juvenile is still extended that liberty, subject of course, to the three disentitling categories mentioned in the proviso to sub-section (1) of Section 12 of the Act. It is certainly not the legislative intent to deny bail to a juvenile by testing his case with reference to the three disentitling categories, where the adult co-accused is held entitled to bail.
This, of course, postulates that the case against the juvenile and the adult offender would be at par. Once the case of an adult offender and a juvenile is at par, there is absolutely no justification to further scrutinize the juvenile's case with reference to the three parameters envisaged in the proviso to Section 12 (1) of the Act. If the provisions of Section 12 are to be read that way, it might expose the provision to the peril of unconstitutionality on ground of discrimination. A statute is always to be read in a manner that saves it from unconstitutionality. The only way to read Section 12(1) along with its proviso is that where a juvenile whose case is at par with an adult offender found to be entitled to bail, the disentitling criteria in the proviso to Sub-Section (1) of Section 12 are not attracted.
9. I have considered this question in Dharmendra (Juvenile) vs. State of U.P. and others, 2018 (7) ADJ 864, where it is held:
"10. The matter can be looked at from another vantage. In case the revisionist were an adult and stood charged of the offence that he faces with a weak circumstantial evidence of last seen and confession to the police, in all probability, it would have entitled him to bail pending trial. If on the kind of evidence forthcoming an adult would be entitled to bail, denying bail to a child in conflict with law may be denying the juvenile/ child in conflict with law the equal protection of laws guaranteed under Article 14 of the Constitution.
11. The rule in Section 12(1) of the Act is in favour of bail always to a juvenile/ child in conflict with law except when the case falls into one or the other categories denial contemplated by the proviso. It is not the rule about bail in Section 12 of the Act that in case a child in conflict with law is brought before the Board or Court, his case is not to be seen on merits prima facie about his complicity at all for the purpose granting him bail; and all that has been done is to see if his case falls is one or the other exceptions, where he can be denied bail. The rule in Section 12 sanctioning bail universally to every child in conflict with law presupposes that there is a prima facie case against him in the assessment of the Board or the Court based on the evidence placed at that stage. It is where a case against a child in conflict with law is prima facie made out that the rule in Section 12(1) of the Act that sanctions bail as a rule, except the three categories contemplated by the proviso comes into play. It is certainly not the rule, and, in the opinion of the Court cannot be so, that a case on materials and evidence collected not being made out against a child at all, his case has to be tested on the three parameters where bail may be denied presuming that a prima facie case is constructively there. Thus, it would always have to be seen whether a case prima facie on merits against a child in conflict with law is there on the basis of material produced by the prosecution against him. If it is found that a prima facie case on the basis of material produced by the prosecution is there that would have led to a denial of a bail to an adult offender, in that case also the Rule in Section 12(1) of the Act mandates that bail is to be granted to a juvenile/ child in conflict with law except where his case falls into any of the three disentitling categories contemplated by the proviso.
12. In the opinion of this Court, therefore, the perception that merits of the case on the basis of prima facie evidence is absolutely irrelevant to a juvenile's bail plea under the Act would not be in conformity with the law. The catena of decisions that speak about merits of the case or the charge against a juvenile being irrelevant, proceed on facts and not an assumption that a case on merits is made out, and, not where the case is not at all made out prima facie. It is not that a child alleged to be in conflict with law against whom there is not iota of evidence to connect him to the crime would still have bail denied to him because his case may be placed in or the other disentitling categories under the proviso to Section 12(1) of the Act. If this kind of a construction were to be adopted it might expose the provisions of Section 12(1) of the Act to challenge on ground of violating the guarantee of equal protection of laws enshrined in Article 14 of the Constitution. It is an enduring principle that a construction that lends a statute to challenge about its constitutionality should be eschewed and one that saves and upholds its vires is to be adopted. In this context the guidance of their Lordships of the Hon'ble Supreme Court in Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 may be referred to:-
"51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of 'litera legis'. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution."
In the present case, there is absolutely no doubt that the allegations against co-accused Gaurav and the juvenile stand squarely on the same foot. The co-accused, Gaurav having been admitted to bail by this Court, there is no justification to subject the juvenile to institutional incarceration by falling back on one or more of the three disentitling contingencies mentioned in the proviso to Sub-Section (1) of Section 12 of the Act. In the opinion of this Court, the impugned orders even otherwise, are not sustainable as there is nothing in the social investigating report or elsewhere on record that may warrant an inference, that in case the revisionist is enlarged on bail he would come into contact or association with any known criminal or his release on bail would expose him to any moral, physical or psychological danger or still more, that his release would lead to ends of justicebeing defeated.
In the result, this revision succeeds and is allowed. The impugned order dated 21.10.2019 passed by the learned Sessions Judge, Budaun in Criminal Appeal No.42 of 2019 and the order dated 10.10.2019 passed by the Juvenile Justice Board, Budaun in Case no.43 of 2019, arising out of Case Crime no.141 of 2019, under Sections 323, 376 DA IPC and Section 5/6 POCSO Act, P.S. Ughaiti, District Budaun, rejecting the revisionist's bail plea, are hereby set aside and reversed. The bail application made on behalf of the revisionist before the Board through his father stands allowed.
Let the revisionist, Aman @ Bablu (Minor) through his natural guardian/ father Baburam S/o Ramlal, be released on bail in Case Crime no.141 of 2019, under Sections 323, 376 DA IPC and Section 5/6 POCSO Act, P.S. Ughaiti, District Budaun, 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, Budaun subject to the following conditions:
(i) that the natural guardian/ father Baburam S/o Ramlal 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 Baburam S/o Ramlal will report to the District Probation Officer on the first Monday of every calendar month commencing with the second Monday of July, 2020 and if during any calendar month the second 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, Ballia on such periodical basis as the Juvenile Justice Board may determine.
(iv) The party shall file a 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 :- 16.6.2020 Deepak