Allahabad High Court
Golu @ Aditya Singh (Minor) vs State Of U.P. And Another on 15 November, 2019
Author: Umesh Kumar
Bench: Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 85 Case :- CRIMINAL REVISION No. - 3703 of 2018 Revisionist :- Golu @ Aditya Singh (Minor) Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Satyendra Narayan Singh,Dewendra Singh Counsel for Opposite Party :- G.A. Hon'ble Umesh Kumar,J.
1. Heard Sri Satyendra Narayan Singh, learned counsel for the revisionist, the learned A.G.A. and perused the record.
2. The present Criminal revision has been filed against the order dated 10.8.2018 passed by learned Additional Sessions Judge, Court No. 8/ Special Judge (POCSO) Act, Gorakhpur whereby the learned appellate court has rejected the appeal of the revisionist and refused to grant bail and affirmed the order dated 25.07.2018 passed by Principal Magistrate/Juvenile Justice Board, Gorakhpur whereby Juvenile Justice Board has rejected bail application of the revisionist.
3. Notice to the opposite party no. 2 was directed to be issued, which as per the office report dated 10.01.2019 has been personally served on opposite party no.2.
4. No one has put in appearance on behalf of the opposite party no. 2. In the interest of justice, the Court has proceeded to hear the matter on merits.
5. According to the first informant, on 16.05.2018 when his daughter of the informant, namely, Alish aged about 9 years was playing on the road and in the meantime the present revisionist-Juvenile forcibly took away the victim inside his house, fingered into her private part resulting in bleeding.
6. The revisionist-juvenile has been declared a juvenile by the Juvenile Justice Board, Gorakhpur aged about 13 years 6 months and 12 days by order dated 11.07.2018 taking into account the date of birth mentioned in the Certificate-cum-mark sheet of High School as 24.10.2004, yet refused to hand over custody/bail in the matter.
7. Aggrieved by the said order of the Juvenile Justice Board, the revisionist-juvenile preferred Criminal Appeal No. 109 of 2018 before the the learned Addl. & Sessions Judge/Special Judge (POCSO Act),Court no.8, Gorakhpur. The said appeal came up for determination on 10.08.2018 which has been dismissed.
8. Aggrieved by the orders dated 25.07.2018 and 10.08.2018 passed by Courts below, the present revision has been filed on behalf of the juvenile/child in conflict with law through his grand father who is the natural guardian, under the provisions order dated 10.08.2018 passed by the Additional Sessions Judge, Court No.8/Special Judge, (POCSO) Act, Gorakhpur in Criminal Appeal No. 109 of 2018 (Golu alias Aditya Singh (minor) Vs. State of U.P.).
9. The submission of learned counsel for the revisionist is that the impugned orders passed by the courts below are contrary to the parameters envisaged under the proviso to Section 12(1) of the Act in the matter of grant of bail to a juvenile.
10. In short, the submission of learned counsel for the revisionist is to the effect that there is nothing in the investigation about social status report or in any other evidence on record that may lead to the conclusion that the case of the revisionist falls within any of the three exceptions to the rule in favour of bail to a juvenile under the proviso to Section 12 (1) of the Act.
11. Section 12 of the Act, has been quoted in extenso:-
"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:
(2) When such person having been apprehended is not released on bail under sub-section (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 my be specified in the order.
(4) When a child in conflict with law is unable to fulfill 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."
12. Recently the Apex Court in case of Sanjay Kumar Gupta Vs. The State of U.P. (Crl. Appeal No. 1081 of 2019) decided on 25.7.2019 has very elaborately considered the provision of Section 12 of the Act observing that matriculation or equivalent certificates, if are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as conclusive proof in respect to date of birth of the juvenile.
13. A close scrutiny of the impugned orders also shows that the learned Additional Sessions Judge as well as the Juvenile Justice Board have drawn imaginary inference by only taking into account the gravity and nature of offence as well as bad association of the the juvenile but the fact remains that there is no such whisper in the report of the District Probation Officer. There is no concrete material on the basis of which lack of control of the guardian/father has been inferred by the District Probation Officer. The courts below have further ignored from consideration that the economic condition of the family is average and they have no criminal record. The juvenile/child does not have any such association which may affect his life.
14. In the Indian rural background where the endeavor of the State is to promote education be it children or adults, a belated progress in the hierarchy of class is to be appreciated rather than drawn an adverse inference.
15. This Court may now turn to the last aspect of the matter on which bail may be denied. The said ground is also to be found under proviso to Section 12 of the Act and shows that one legitimate reason to deny bail to a child in conflict with law is the case of a juvenile where to release him on bail "would defeat the ends of justice." This is certainly has reference to the nature of the offence which would intrinsically bring in the merits of the case and the evidence appearing against the child. This Court is constrained to observe that the merits of the case have hardly been looked into by the courts below. The statement of the victim, the medical evidence and all other evidence have been ignored from consideration.
16. A perusal of the evidence would show that it cannot be said that the offence, in fact, has been committed so daringly and outwardly that enlarging the revisionist on bail would defeat the ends of justice. In this reference, observations of the Apex Court in Om Prakash vs. State of Rajasthan and another (2012)5 SCC 201 is quoted herein below:
"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."
17. There is no such finding or otherwise any material on record that the revisionist has committed the offence that indicates more towards the matured skill of an accused than an act of the child as held by their Lordships in Om Prakash (supra). There is nothing about the manner and method of the commission of the offence that indicates a well planned design. In fact, not much about the circumstances under which the alleged offence took place, where it was committed and by whom, has been dwelt upon. This matter is to be determined in the pending case before the Juvenile Justice Board. There is, however, in the opinion of the Court no such ground refusing the juvenile to bail under the proviso to Section 12(1) of the Act so as to keep him deprived of the company of his family which is the best school for any child. It is also not the case that it is a family of criminals and delinquents. The revisionist's family is a normal, average and happy family as the report of the District Probation Officer would show, though they may not be an affluent family.
18. Looking to the overall circumstances of the case, impugned orders passed by the courts below cannot sustain.
19. In the result, this revision succeeds and is allowed. The impugned orders dated order dated 10.08.2018 passed by the Additional Sessions Judge, Court No.8/Special Judge, (POCSO) Act, Gorakhpur in Criminal Appeal No. 109 of 2018 (Golu alias Aditya Singh (minor) Vs. State of U.P.) and the order dated 25.07.2018 passed by Principal Magistrate/Juvenile Justice Board, Gorakhpur are hereby set aside and reversed. The bail application made on behalf of the revisionist-Juvenile through his mother Smt. Asha Singh stands allowed.
20. Let the Juvenile- Golu alias Aditya Singh through his natural guardian/ mother be released on bail in Case Crime No. 56 of 2018, under Section 376 I.P.C. and 3/4 POCSO Act, P.S.- Urua-Bazar, District- Gorakhpur on his furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Gorakhpur, subject to the following conditions:
(i) that the natural guardian/ father/mother 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 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) that the father/mother will further furnish an undertaking to the effect that the juvenile will be placed in a school and encouraged to his studies and not allowed to waste his time in unproductive and mere recreational pursuits.
(iii) that the Juvenile-Golu alias Aditya Singh along with his father/mother will report to District Probation Officer, Gorakhpur on the first Monday of every month with effect from the first Monday of the month next after release from custody, and, if during any calendar month the first Monday falls on a holiday then on the following working day.
(iv) that 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, Gorakhpur, on such periodical basis as the Juvenile Justice Board determines.
Order Date :- 15.11.2019 aks