Allahabad High Court
Divyanshu Srivastava @ Aditya ... vs State Of U.P. And Another on 12 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 91 Case :- CRIMINAL REVISION No. - 981 of 2021 Revisionist :- 'X' Through His Natural Guardian Father Alok Kumar Srivastava Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ankit Kapoor,Lal Chandra Mishra Counsel for Opposite Party :- G.A. Hon'ble Mrs. Jyotsna Sharma,J.
1. It appears that name of the revisionist-juvenile has been disclosed in the memo of revision. This fault from the side of revisionist escaped detection by the Registry. The concerned Officer of the Registry is directed to delete the name of the revisionist-minor from the title of the revision as fed and shown in the data on website and represent him as "Minor 'X' Through His Natural Guardian Father Alok Kumar Srivastava".
2. Heard learned counsel for the revisionist as well as learned AGA for the State and perused the record.
3. This criminal revision under Section 102 of the Juvenile Justice Act, 2015 has been filed on behalf of the minor 'X' through his natural guardian/father Alok Kumar Srivastava S/o Dinesh Narayan R/o Mohalla Ashok Nagar Vanshi Nagla, Near Neelkanth Mandi, Police Station Subhash Nagar, Bareilly with the prayer to admit the minor to bail alongwith the prayer to set aside the order dated 06.02.2021 passed by the Juvenile Justice Board, Bareilly and order dated 16.03.2021 passed by the Additional Sessions Judge/Special Judge, POCSO Act, Court No. 2, Bareilly in Criminal Appeal No. 16/2021 arising out of Case Crime No. 937 of 2020 under Sections 376AB, 323 IPC and 5(Da)/6 of POCSO Act, Police Station-Subhash Nagar, District-Bareilly by which the criminal appeal was rejected.
4. As per the version of the FIR, the juvenile abducted a nine years old daughter of the informant on 02.12.2020 at about 8 pm from her house when she was alone, on the pretext of getting a quilt from his house and took her to the roof of his own house which was under construction and ravished her. The FIR was lodged at 02.07 hours on 02/03.12.2020. On the basis of this FIR Crime No. 0937/2020 under Sections 376AB/323 IPC and Section 5(Da)/6 of POCSO Act was registered at Police Station Subhash Nagar, District Bareilly, and investigated upon.
5. A bail application was preferred before the Juvenile Justice Board through his father on 22.01.2021 and the same was rejected by the Juvenile Justice Board mainly on the basis of the social investigation reports submitted by the District Probation Officer. The appeal preferred against the above order before the children Court was also dismissed.
6. Aggrieved by the above two orders, the revisionist has come in criminal revision before this Court.
7. It is contended on behalf of the juvenile that the learned courts below did not consider the medical report of the victim which showed no mark of injury and that the FIR was lodged after a long delay. It is also contended that the Juvenile Justice Board had rejected the bail application on the ground of gravity of offence which is against the settled position of law. There has been no eye-witness of the incident. The lower appellate court did not apply its independent mind and simply concurred with the opinion of the Juvenile Justice Board. Hence, the orders are not sustainable in the eyes of law.
8. First and foremost contention is that gravity of the offence is not relevant consideration for refusing bail to the juvenile as has been held by a coordinate Bench of this Court in Criminal Revision No. 2732 of 2010 (Amit Kumar vs. State of U.P.) decided on 14.09.2010, Criminal Revision No. 1266 of 2020 (Kanchan Sonkar vs. State of U.P.) decided on 01.12.2020, Criminal Revision No. 1852 of 2015 (Amit vs. State of U.P.) decided on 16.03.2016 and held by the Apex Court in Prakash vs. State of Rajasthan, 2006 Cri.L.J. 1373.
9. In Criminal Revision No. 1852 of 2015 (Amit vs. State of U.P.) decided on 16.03.2016, this Court referred to the earlier judgement in Vijendra Kumar Mali vs. State of U.P., 2003 (1) J.I.C. 103, wherein it is reiterated that in a number of judgements, it has been categorically held that bail to the juvenile can only be refused if one of the grounds as provided in proviso to Section 12(1) of the Juvenile Justice Act, 2015 existed. So far as the ground of gravity is concerned, it is not covered under the relevant provisions. If the bail application of the juvenile was to be considered under the provisions of Cr.P.C., there would have been absolutely no necessity for the enactment of the aforesaid Act. The Section 12 of the Act contains a non-obstante clause, which indicates that the general provisions of Cr.P.C. shall not apply. Therefore, the gravity or seriousness of the offence should not be taken as an obstacle or hindrance to refuse the bail to delinquent juvenile.
10. It is contended that there existed no material to justify rejection of bail on the grounds envisaged in Section 12 of the Act. In view of the above provisions, the 'child in conflict with law', who has been in custody for quite some time deserves to be released on bail otherwise, the purpose of provisions of Section 12 of the Juvenile Justice Act shall stand defeated. It is also contended that care of the juvenile in a child care institution cannot be preferred over his care in his biological family.
11. Learned AGA has opposed the prayer for bail.
12. I perused the impugned orders. The Juvenile Justice Board referred to the social investigation report of the District Probation Officer and highlighted the fact that the incident allegedly happened in the house of the juvenile which existed in neighbourhood; the juvenile was not keeping a good company, thereafter, the Board observed that in case the juvenile is released on bail, he shall again be relegated to same environs where he had been earlier and which was instrumental in bringing him to this juncture of commission of crime and that in all likelihood, he will be exposed to physical, moral and psychological danger and that his release shall defeat the ends of justice.
13. In the appellate order, this was noticed that the victim in her statement told that all other family members had gone to a temple and she was alone. Meanwhile, the juvenile took her away and forcibly assaulted her sexually and that she was also put to physical violence and threatened. The Appellate Court also gave an opinion that in case the juvenile is released on bail, he shall slip again and fall off into same kind of environment, which led him to commission of this kind of atrocious crime.
14. In Om Prakash vs. State of Rajasthan and another; (2012) 5 SCC 201, the Hon'ble Apex Court observed that the Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of juvenile as it was felt that child became 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. It was further observed that in cases where accused is involved in grave and serious offence which he committed in a well planned manner reflecting his maturity of mind, the court ought to be more careful. Thus, the Hon'ble Apex Court has brought in focus the nature of crime as well as the conduct of an accused as reflected in the method employed in the commission of crime as a relevant consideration while considering the matters of juvenile offenders.
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15. It may be noted that the Hon'ble Apex Court gave this view in the background of the facts that age of the juvenile as determined by the courts below was not free from doubts. In the circumstances, the Court gave a view that where accused commits grave and heinous offence and thereafter attempt to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording his age, is not acceptable. It is also observed that the shelter of the principle of benevolent legislation of the Juvenile Justice Act is meant for minors, who are innocent law breakers.
16. In Mangesh Rajbhar vs. State of U.P. and Another; 2018 (2) ACR 1941, it was observed by a coordinate Bench of this Court as below:
"13. No doubt, the Juvenile Justice Act is a beneficial legislation intended for reform of the juvenile/child in conflict with the law, but the law also demands that justice should be done not only to the accused, but also to the accuser."
25. It is not that this aspect of the gravity of the offence has been considered irrelevant to the issue of grant or refusal of bail to a minor in the past and before the present Act of 2015 came into force. In a decision of this Court under the Juvenile Justice Act, 2000 where the interest of the society were placed seemingly not on a level of playing field with the juvenile, this Court in construing the provisions of Section 12 in that Act that were pari materia to Section 12 of the Act in the matter of grant of bail to a minor held in the case of Monu @ Moni @ Rahul @ Rohit v. State of U.P., 2011 (74) ACC 353 in paragraph Nos. 14 and 15 of the report 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."
17. Ordinarily, the merits of the matter may not be important where the Courts are inclined to give benefit of bail as envisaged in Section 12 of the Juvenile Justice Act. This is not to say that once a person is found a juvenile, it is mandatory to grant him bail and that merits of matter shall have no relevance. In fact nature of the crime as well merits of the case have been brought in focus by the Apex Court in Om Prakash (supra) case. The nature of crime including other merits of the matter may be quite significant when the Court has to form an opinion about the ends of justice. It may be noted that the phrase 'ends of justice', cannot stand in a vacuum. Unarguably and undeniably, the Courts are under obligation to address the concerns of both the sides and strike a delicate balance between competing and often conflicting demands of justice of the two sides.
18. When viewing the matters of bail from this particular angle of deciphering the ends of justice not only the nature of crime, but the manner of commission thereof, methodology applied, the mental state, the extent of involvement, the evidence available shall be the factors to reckon with. The phrase 'ends of justice' may bring in within its interpretation such factors which may otherwise seem not so material or may be seemingly extraneous, irrelevant or unimportant at first glance for the purpose of applicability of last part of the proviso to Section 12(1) of the Juvenile Justice Act.
19. It clearly appears that the Juvenile Justice Board as well as the Appellate Court, while dismissing the bail applications, definitely had this fact in mind that in case the juvenile is released on bail, he shall fall off in the same environment from where perhaps he needed to be rescued for his own welfare. In my view, this aspect of the matter is not far away from ends of justice though it is also specifically covered in the general principles described in Section 3 of the Juvenile Justice Act, 2015 under the head "Principle of Best Interest".
20. These facts are undisputed that the revisionist was found to be of the age of seventeen and half years. This fact is also undisputed that the victim in this case is a girl of tender age of nine years and that she in her statement given under Section 161 and 164 Cr.P.C., supported the version of the FIR and stated that sexual assault was committed by the juvenile and that she was also physically assaulted before the commission of this crime. There is no material before this Court to suggest that there was any probability of false implication of the juvenile. This Court is of the view that at a tender age of mere 9 years the victim might not have fully understood the nature of crime to which she was being put through, though, she might be perplexed and overawed. Physical resistance from a child of this age may be too much to expect. It appears that the victim was known to the juvenile and she lived in the neighbourhood. At the time of occurrence, she was slapped and threatened to keep mum. Lack of any injury on the person of a girl of 9 years is not sufficient to suggest that she did not undergo the ordeal perpetrated on her. The totality of the circumstances, give a fair indication that the revisionist had attained sufficient maturity of mind and that he took advantage of the fact that the girl was alone in her house and that nobody was around to catch him and perhaps, he also had an impression in his mind that he was in a position to not only over power her but also to keep her mouth shut and probably she will not tell anybody and matter may not be discovered.
21. In the circumstances of the case, following facts assume importance. Firstly, nature of the crime-that a girl living next door who was merely a nine year old and not even in position to physically resist a grown up boy was overawed and made to surrender by threats and slaps and was put to undergo ordeal of such atrocious crime. Crime has been committed in a friendly neighbourhood whom she might have trusted. Secondly, when a boy who is a borderline case, quite near to attaining majority, commits such a crime, in my view, certainly he needs professional counselling or behavioural therapy to inculcate in him the respect for females of all the ages, learn the worth and dignity of female body and grow into an adult with a healthy mind inside. Thirdly, the aim and object of the Juvenile Justice Act cannot be achieved if crimes committed by juveniles are not viewed from the angle of their own welfare and concerns of society at large as well. From this angle i.e., angle of the best interest of the juvenile, the angle of his own welfare and well-being and the angle of striking a balance between the demands of justice for both the sides including the concerns of the society at large, the social investigation report may give good indicators to be followed. However, I hasten to add a word caution that the social investigation report which are ordinarily prepared without proper research and in unscientific manner on printed formats may not be wholly reliable, even then a judicially trained mind may search for clues and take assistance for drawing a conclusion from this point of view.
22. The learned Court and the Board took a concurrent view that it shall not at all be fit to release the juvenile to his parents or family members for his own welfare and to serve the ends of justice. This view cannot be faulted and I am in agreement with the final conclusions arrived at by the Juvenile Justice Board and the appellate Court. There is no such invalidity or impropriety in the order to prompt this Court to interfere in the impugned order in this revision.
23. The revision is, accordingly, dismissed.
24. Copy of the order be certified to the Court concerned.
25. The Court/concerned Board is directed to expedite the hearing and conclude the same at the earliest without getting influenced by any of the observations made in this order.
Order Date :- 12.9.2022 Vik/-SFH Note- Copy of the order be sent to concerned Section of the Registry for immediate compliance of direction given in Para-1 of the order.