Allahabad High Court
Abhishek Yadav vs State Of U.P. And Anr. on 7 September, 2020
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 83 Case :- CRIMINAL REVISION No. - 1237 of 2020 Revisionist :- Abhishek Yadav Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Kameshwar Singh Counsel for Opposite Party :- G.A.,Ashok Kumar Rai Hon'ble Shamim Ahmed,J.
This revision is directed against the judgment and order dated 4.6.2020 passed by Special Judge POCSO Act/Special Judge/Additional Sessions Judge, Court No.8, Ballia dismissing Criminal Appeal No.7 of 2020 (Abhishek Yadav versus State of U.P.), filed under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ''the Act') and affirming an order of Juvenile Justice Board, Ballia dated 26.2.2020 refusing the bail plea to the revisionist in Case No.34 of 2019 arising out of Case Crime No.183 of 2018 under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act Police Station Sahatwar District Ballia.
Heard Sri Kameshwar Singh, learned counsel for the revisinist, learned AGA for the State and Sri Ashok Kumar Rai, learned counsel for opposite party no.2 and perused the record.
The prosecution case, as per the version of the FIR lodged by the father of the victim, is that on 25.11.2018 his daughter Km. Beauty Singh aged about 16 years went to the coaching in the morning and when she did not come back till 10 o'clock, search was made and it was found that the applicant had enticed away his daughter. When the father of the victim went to the house of the applicant to make complaint, his mother and uncle began to abuse them.
Learned counsel for the revisionist submits that the revisionist is innocent and he has been falsely implicated in the present case. Submission is that in the FIR the victim has been shown to be minor aged about 16 years whereas as per supplementary medical examination report dated 22.1.2019 filed as Annexure-4 to the affidavit, the age of the victim was found as 18 to 19 years. Thus, the victim was major on the date of alleged occurrence. Learned counsel further submits that there is a vast contradiction in the statement under Section 161 Cr.P.C. and the statement under Section 164 Cr.P.C. In her statement under Section 161 Cr.P.C. the victim has stated that she went with the revisionist on his own free will from Ballia to Buxar and by train at Kalyan where they were living in a rented room for one month and they had also married at Bhriguji Temple, Ballia and they had made physical relation with their own consent. On the other hand, in her statement under Section 164 Cr.P.C. she has changed her version under the pressure of the parents. She has stated that on 24.11.2018 when she was going to coaching, on the way she met with Abhishek (revisionist) who after luring took her away in Kalyan where they stayed in a hotel and the revisionist made physical relationship without her consent. The statements under Sections 161 and 164 Cr.P.C. are self-contradictory and make the prosecution story doubtful. Learned counsel for the revisionist submits that the revisionist is well known to the victim prior to the alleged incident and it appears that there was consenting relationship between the revisionist and the victim.
Learned counsel for the revisionist further submits that the revisionist is juvenile and there is no apprehension of reasoned ground for believing that the release of the revisionist is likely to bring him in association with any known criminals or expose him to mental, physical or psychological danger or his release would defeat the ends of justice. He further submits that except this the revisionist has no previous criminal history. The father of the revisionist is giving his undertaking that after release of the revisionist on bail, he will keep him under his custody and look after him properly. Further, the father of the revisionist undertakes that the revisionist will not tamper the evidence and he will always cooperate the trial proceedings. There was no report regarding any previous antecedents of family or background of the revisionist. There is no chance of revisionist's re-indulgence to bring him into association with known criminals.
Learned counsel for the revisionist further submits that it is not in dispute that the revisionist is a juvenile as he already been declared juvenile by Juvenile Justice Board, Ballia vide order dated 12.7.2019. The revisionist was a juvenile aged 16 years, 4 months and 23 days on the date of occurrence. He was, thus, clearly below 17 years of age. He is in jail since 13.1.2019 in connection with the present crime and has completed more than half of the sentence out of the maximum three years institutional incarceration permissible for a juvenile, under Section 18(1)(g) of the Act.
Learned counsel for the revisionist further submits that thereafter the revisionist applied for bail before the Juvenile Justice Board, Ballia upon which a report from the District Probation Officer was called for. The bail application was rejected vide order dated 26.2.2020, being aggrieved, the revisionist preferred an appeal under Section 101 of the Act, which was also dismissed vide order dated 4.6.2020. Hence the present criminal revision has been filed before this Hon'ble Court mainly on the following amongst other grounds:
(i) That the revisionist is innocent and has been falsely implicated in the present case .
(ii) That the medical examination on the body of the victim was conducted on 12.1.2019 in which no external or internal injury was found.
(iii) That supplementary medical report was prepared on 22.1.2019 in which the age of the victim was found 18 to 19 years. It is also noted that no recent sexual activities were seen.
(iv) That the District Probation Officer Ballia has given his report to the effect that there is love affection with each other and conduct of the juvenile is also good and given his opinion that the juvenile may be released on bail.
(v) That as per the statement under section 161 CrPC the victim was residing with the revisionist for about one and a half months and it appears to be case of consensual relationship.
(vi) That the victim has changed her statement under Section 164 CrPC under the pressure of her parents.
(vii) That the impugned orders are against the evidence on record, therefore, the same are unsustainable in the eye of law.
(viii) That the court below has rejected the bail application of the revisionist without applying the law and appreciating the facts of the case.
(ix) That there was no report regarding any previous criminal antecedents of the family or background of the revisionist.
(x) That there is no chance of revisionist's re-indulgence to bring him into association with known criminals.
(xi) That the impugned orders passed by the courts below are totally arbitrary, illegal and bad in law.
(xii) That the findings given by the courts below are based on conjectures and surmises.
Several other submissions in order to demonstrate the falsity of the allegations made against the revisionist have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the revisionist that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Learned counsel for the revisionist has pointed out that the revisionist has by now done more than half of institutional incarceration. The maximum period for which a juvenile can be incarcerated in whatever form of detention, is three years, going by the provisions of Section 18(1)(g) of the Act. In support of his contention, learned counsel for the revisionist has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-
"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."
Learned counsel for the revisionist has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-
"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."
Learned A.G.A. as well as learned counsel for opposite party no.2 have opposed the revisionist's case with the submission that the release of the revisionist on bail would bring him into association of some known criminals, besides, exposing him to moral, physical and psychological danger. It is submitted that his release would defeat the ends of justice, considering that he is involved in a heinous offence.
This Court has carefully considered the rival submissions of the parties and perused the impugned orders. The juvenile is clearly below 17 years of age. The provisions relating to bail for a juvenile are carried in Section 12 of the Act, which reads as under:
"(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."
A perusal of the said provision show that bail for a juvenile, particularly, one who is under the age of 17 years, is a matter of course and it is only in the event that his case falls under one or the other disentitling categories mentioned in the proviso to sub-Section (1) of Section 12 of the Act that bail may be refused. The merits of the case against a juvenile acquire some relevance under the last clause of the proviso to sub-section (1) of Section 12 that speaks about the ends of justice being defeated. The other two disentitling categories are quite independent and have to be evaluated with reference to the circumstances of the juvenile. Those circumstances are to be gathered from the Social Investigation Report, the police report and in whatever other manner relevant facts enter the record.
What is of prime importance in this case is that the juvenile, who is a young boy, slightly more than the age of 16 years, has no criminal history. There is nothing said against the juvenile, appearing from the Social Investigation Report that may show him to be a desperado or misfit in the society. The two courts below have held the juvenile disentitled to bail on account of his case falling under each of the three exceptions enumerated in the proviso to sub section (1) of Section 12, for which no reason has been indicated. That finding, in both the orders impugned, is based on an ipse dixit, in one case of the judge and in the other of the Board. Even if it be assumed that the offence was committed in the manner alleged, it would be rather strained logic to hold that release of the juvenile on bail would lead to the ends of justice being defeated. Both the courts below have also overlooked the statement of the victim recorded under Section 161 and 164 CrPC and further the courts below have also not considered the radiological age of the victim as per the medical report.
This Court in the case of Shiv Kumar alias Sadhu Vs. State of U.P. 2010 (68) ACC 616(LB) was pleased to observe that the gravity of the offence is not relevant consideration for refusing grant of bail to the juvenile.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and in view of the larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh vs. State of UP and another, (2018) 3 SCC 22 and the view taken by the Apex Court in the cases of Kamal Vs. State of Haryana (supra), Takht Singh Vs. State of Madhya Pradesh (supra) and Shiv Kumar alias Sadhu Vs. State of U.P. (supra)., this Court is of the view that the present criminal revision may be allowed and the revisionist may be released on bail.
In the result, this revision succeeds and is allowed. The impugned judgment and order dated 4.6.2020 passed by Special Judge POCSO Act/Special Judge/Additional Sessions Judge, Court No.8, Ballia dismissing Criminal Appeal No.7 of 2020 (Abhishek Yadav versus State of U.P.) and the order of Juvenile Justice Board, Ballia dated 26.2.2020 refusing the bail plea to the revisionist in Case No.34 of 2019 arising out of Case Crime No.183 of 2018 under Sections 363, 366, 376 IPC and under Section 3/4 POCSO Act Police Station Sahatwar District Ballia, are hereby set aside and reversed. The bail application of the revisionist stands allowed.
Let the revisionist, Abhishek Yadav through his natural guardian/ father Janardan Yadav be released on bail in Case Crime No.183 of 2018 under Sections 363, 366, 376 IPC and under Section 3/4 POCSO Act Police Station Sahatwar District Ballia 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, Ballia subject to the following conditions:
(i) That the natural guardian/ father, Janardan Yadav 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, Janardan Yadav will report to the District Probation Officer on the first Wednesday of every calendar month commencing with the first Wednesday of October, 2020 and if during any calendar month the first Wednesday falls on a holiday, then on the next 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 computer generated copy of such order downloaded from the official website of High Court Allahabad or the certified copy issued by the Registry of the 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.
However, considering the peculiar facts and circumstances of the case, the court below is directed to make every possible endeavour to conclude the trial of the aforesaid case within a period of four months from today without granting unnecessary adjournments to either of the parties.
Order Date :- 7.9.2020 SP