Allahabad High Court
Harsh Tiwari @ Harish Tiwari vs State Of U.P. And Anr. on 21 October, 2020
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 70 Case :- CRIMINAL REVISION No. - 1558 of 2020 Revisionist :- Harsh Tiwari @ Harish Tiwari Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Ashok Kumar Giri,Arvind Prabodh Dubey Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J.
Heard learned counsel for the applicant and learned A.G.A.
The present criminal revision has been filed to quash the order dated 13.3.2020 passed by the Additional Sessions Judge/Special Judge POCSO Act ,Court No.4, Gorakhpur in Criminal Appeal No. 5 of 2020 (Harsh Tiwari @ Harish Tiwari Vs. State of U.P.), arising out of order dated 23.1.2020 passed by the Juvenile Justice Board, Gorakhpur in Case Crime No. 150 of 2019 , under Sections- 323, 328, 342, 363, 366, 376, 120-B I.P.C.,3/4, 16/17 POCSO Act and 3(2) (5) of S.C./S.T. Act Police Station- Belipur , District- Gorakhpur .
Learned counsel for the applicant submitted that there is no allegation in the First Information Report against the applicant since no one was named in the First Information Report.Subsequently statement of the victim was recorded wherein she has made allegation against the applicant.At the time of incident the age of the applicant was fifteen years and age of the victim was fourteen years. It is a case of false implication. The victim has refused her medical examination,therefore, alleged offence cannot be proved against the applicant.The applicant has remained confined in the child observation home for an unduly long period of time, since 16.10.2019.There is no criminal history of the applicant. There is no hope of early conclusion of the trial.
Learned A.G.A. has vehemently opposed the present criminal revision. It is submitted, the incident reported is true and it is wrong to say that the allegations made against the applicant are false, and/are motivated. Also, reliance has been placed on the findings recorded in the bail rejection orders to submit that the instant revision may be dismissed.
It is not in dispute that the applicant is a juvenile and is entitled to the benefits of the provisions of the Act. Under Section 12 of the Act, the prayer for bail of a juvenile may be rejected 'if there appear reasonable grounds for believing that the release of the juvenile 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'.
The court has to see whether the opinion of the learned appellate Court as well as Juvenile Justice Board recorded in the impugned judgment and orders are in consonance with the provision of the Act. Section 12 of the Act lays down three contingencies in which bail may be refused to a juvenile offender. These are:-
(i) if the release is likely to bring him into association with any known criminal, or
(ii) expose him to moral, physical or psychological danger, or
(iii) that his release would defeat the ends of justice?
Gravity of the offence has not been mentioned as a ground to reject the bail. It is not a relevant factor while considering to grant bail to the juvenile. It has been so held by this Court in Shiv Kumar alias Sadhu Vs. State of U.P. 2010 (68) ACC 616(LB). It has been consistently followed in subsequent decisions of this court.
Thus, it remains largely undisputed that the applicant - was a juvenile on the date of occurance; does not appear to be prone to criminal proclavity or criminal psychology, in light of the observations of the D.P.O; does not have a criminal history; has been in confinement for an unduly long period of time, in as much as the trial has not concluded within time frame contemplated by the Act. Even otherwise, there does not appear to exist any factor or circumstance mentioned in section 12 of the Act as may disentitle the applicant to grant of bail, at this stage. The father of the applicant undertakes to address the statutory concerns expressed in section 12 of the Act, as to the safety and well being of the applicant, upon his release.
In view of the above, it appears that the findings recorded by the learned Court below are in conflict with the settled principle in law, for the purpose of grant of bail and are erroneous and contrary to the law laid down by this court. Consequently, those orders cannot be sustained. The orders dated 13.3.2020 passed by the Additional Sessions Judge/Special Judge POCSO Act ,Court No.4, Gorakhpur and dated 23.1.2020 passed by the Juvenile Justice Board, Gorakhpur are hereby set aside.
In view of the observations made above, the present criminal revision is allowed. Let the applicant Harsh Tiwari @ Harish Tiwari involved in the aforesaid case crime be released on bail, on his furnishing personal bond with two sureties each of like amount, to the satisfaction of the court concerned with the following conditions:
(i) The applicant shall not tamper with the evidence or threaten the witnesses;
(ii) The applicant through guardian shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law;
(iii) The applicant through guardian shall remain present before the trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial Court may proceed against him under Section 229-A of the Indian Penal Code.
Order Date :- 21.10.2020 Atul kr. sri.