Allahabad High Court
Chand Kishore @ Chandu Thru. His Mother ... vs State Of U.P. Thru. Prin. Secy. Home ... on 11 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- CRIMINAL REVISION No. - 831 of 2022 Revisionist :- Chand Kishore @ Chandu Thru. His Mother Shail Kumari Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt., Lucknow And 4 Others Counsel for Revisionist :- Ram Saran Awasthi,Abhishek Awasthi Counsel for Opposite Party :- G.A. Hon'ble Ajai Kumar Srivastava-I,J.
Heard Shri Ram Saran Awasthi, learned counsel for revisionist, Shri Anurag Verma, learned A.G.A. for the State and perused the record.
As per office report dated 23.09.2022, notice upon opposite party nos.2 & 3 has been served personally, however, none is present on behalf of opposite party nos.2 & 3 when this matter was taken up for hearing.
The instant revision has been filed with a prayer to set aside the judgment and order dated 30.07.2022 passed by the Child Court/Special Judge (POCSO Act), Court No.44, District Barabanki in Criminal Appeal No.36 of 2022 (Chand Kishore @ Chandu s/o Jagdev vs. State of U.P.) and order dated 11.07.2022 passed by the Juvenile Justice Board, Barabanki, relating to Case Crime No.110 of 2022, under Sections 376, 452, 506 I.P.C. & 3/4 P.O.C.S.O. Act, Police Station Haidargarh, District Barabanki whereby the prayer of bail of the revisionist has been rejected by both the courts below.
Learned counsel for the revisionist has submitted that the innocent revisionist has been falsely implicated in this case due to some ulterior reason. His further submission is that a false first information report came to be lodged against the present revisionist. Upon conclusion of the investigation, a charge sheet came to be submitted against the present revisionist without collecting credible evidence against him.
Learned counsel for the revisionist has also submitted that the innocent revisionist hails from a family who have no criminal history. His further submission is that both the courts below have been swayed by the alleged seriousness of the offence, whereas for the purposes of enlarging the revisionist on bail under proviso to Section 12(1) of The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as Act of 2015) is significant, which has been overlooked by the court below, therefore, impugned judgment and orders are not sustainable in the eyes of law. He has also submitted that no adverse report against the present revisionist has been given by the District Probation Officer concerned and whatever has been mentioned in the social investigation report against the present revisionist, is not based on any cogent material. He has further submitted that revisionist is confined in the Children Reformatory Home since 15.04.2022 in connection with the present crime. Only three years' institutional incarceration is permissible for a juvenile, under Section 18(1)(g) Act of 2015.
Per contra, learned A.G.A. for the State has vehemently opposed the prayer by submitting that the present revisionist was named in the first information report, who has committed henious offence of rape upon the child victim, aged about 13 years. The victim in her statements recorded under Sections 161 & 164 Cr.P.C. has supported the prosecution case. His further submission is that having regard to the mature age of the present revisionist/juvenile, who is aged about 17 years 04 months and 01 day and also who was able to understand the implication of acts done by him, therefore, when the offence has been committed by sufficient maturity the juvenile cannot take shelter behind his juvenility. He, thus, submits that having regard to all the facts and circumstances of the case, the revisionist is not entitled to be released on bail and there appears no illegality in the order of both the courts below.
Having heard learned counsel for parties and upon perusal of the record it transpires that the present revisionist was declared juvenile by Juvenile Justice Board, Barabanki vide order dated 27.06.2022. The revisionist is aged about 17 years 04 Months and 01 day on the date of occurrence and this fact remains undisputed. The present revisionist was named in the first information report. The victim in her statements recorded under Sections 161 & 164 Cr.P.C. has supported the prosecution case. She has specifically stated in her statements that rape upon her was committed by the present revisionist. The first informant/father of the victim has also supported the prosecution case in his statements recorded under Section 161 Cr.P.C.
There cannot be any other proposition then the fact that under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015, for juvenile in conflict with law grant of bail is rule while the rejection is an exception and the bail of the juvenile could only be rejected/dismissed on the grounds mentioned in the proviso appended with Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015, for convenience, the same is reproduced as under:-
"Section 12(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."
It is noticeable that the legislature in its wisdom while enacting Section 12 has appended the proviso, which says that the juvenile will not be released on bail if the release of juvenile is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or his release would otherwise 'defeat the ends of justice'.
The peculiar facts and circumstances of the case are so which prima facie reveals that the manner in which the heinous offence has been committed by the juvenile is evident from the medical report of the prosecutrix, available on record which speaks volumes about the manner in which this inhuman act has been committed. This Court in Monu @ Moni @ Rahul @ Rohit v. State of U.P.; 2011 (74) ACC 353 in paragraph Nos. 14 and 15 of the report held 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."
(Emphasis Supplied) The Hon'ble Supreme Court in the case of Om Prakash vs. State of Rajasthan and another; 2012 (5) SCC 201 has brought in due concern in matters relating to juveniles where the offences are heinous like rape, murder, gang-rape and the like etc., and, has indicated that in such matters, the nature and gravity of the offence would be relevant; the minor cannot get away by shielding himself behind veil of minority. It has been held in Om Prakash (supra) by their Lordships thus:
"3. Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of children/juvenile by the juvenile court as it was felt that children 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. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a juvenile court or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held.
23. ...... Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him."
The above case laws are sufficient enough to hold that though the bail to a juvenile is rule, but the discretion of the court is not to be exercised in favour of the juvenile when the act of the juvenile is such which may shake the confidence of the general public and may defeat the ends of justice.
In the instant case, admittedly, the victim is of tender age about 13 years on the date of the alleged incident. The present revisionist/juvenile is aged about 17 years 04 montsh and 01 day on the date of the alleged incident, who was mature enough to understand the implication of acts done by him. The manner in which the offence in question has been committed is also necessary to be considered in the facts of this case.
Thus, keeping in view all the facts and circumstances of the case, this Court is of the considered view that the release of the juvenile on bail would definitely defeat the ends of justice and thus this Court does not find any illegality or to say any irregularity in the impugned orders passed by both the courts below. The revision is thus not having any substance and the same is dismissed.
The Juvenile Justice Board concerned is directed to conclude the trial of the aforesaid case, expeditiously, in strict accordance with provisions contained in The Juvenile Justice (Care and Protection of Children) Act, 2015 in respect of conduct of trial.
Order Date :- 11.4.2023 A.Dewal