Allahabad High Court
X(Juvenile) vs State Of U.P. And 3 Others on 17 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 91 Case :- CRIMINAL REVISION No. - 1492 of 2022 Revisionist :- X(Juvenile) Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- K.K.Rao,Sarvjeet Singh Counsel for Opposite Party :- G.A. Hon'ble Mrs. Jyotsna Sharma,J.
01. Heard Sri K.K. Rao, learned counsel for the revisionist and learned AGA for the State and perused the record.
02. This criminal revision has been filed for setting aside the judgment and order dated 30.11.2021 passed by Principal Magistrate Juvenile Justice Board, Banda and order dated 08.03.2022 passed by Additional District & Sessions Judge/Special Judge (POCSO Act), Banda in Criminal Appeal No.12 of 2022 affirming the order of J. J. Board declining bail to the juvenile in case crime no.0094 of 2021, under Section 376AB I.P.C. and Section 6 of POCSO Act, P.S. Kalinjar, District Banda.
03. As per prosecution case, the victim aged five years had gone to a shop for buying some items where the juvenile finding her alone dragged her inside a room in the shop itself and sexually assaulted her. She started bleeding. The victim disclosed the incident to her mother who found blood spots on her underwear and lodged F.I.R. naming the juvenile. Medical examination of the victim was conducted which showed a tear on the right side of anus with minor edema. Statements of the witnesses were recorded including the victim. The victim as well as witnesses narrated the whole incident and supported the version of the F.I.R.. Finding the accused as minor, the matter was brought before the J.J.Board where age determination enquiry was conducted and he was found aged 14 years and one month on the date of incident. His bail application moved through his guardian was dismissed. The appeal filed against the order declining bail to him also came to be dismissed by the appellate court.
04. It is contended on behalf of the juvenile that besides ignoring broader principles of law as applicable in the matters of bail to the juvenile and the mandate of Section 12 (1) proviso of the J. J. Act, 2015, the J.J.Board as well as appellate court did not consider the facts that the revisionist was implicated falsely and that there were contradictions between the statement and the medical report and that by keeping him in custody his studies have been disrupted, therefore, the impugned orders are not sustainable in the eyes of law and may be set aside. Learned counsel for the revisionist has placed reliance upon a judgment of this Court in the case of Juvenile X vs. State of U.P. and another, 2022 (5) ADJ 291.
05. I went through the order of J.J. Board. The J.J.Board relied on judgement of this Court in the case of Idrish (Minor) vs. State of U.P. and others 2018 (3) JIC 287 wherein it was held as below:-
"No doubt that the seriousness of the offence is a factor to be taken into consideration even in the case of a juvenile, and, that brings in some prima facie proof appearing against the juvenile of the commission of the offence also, which otherwise is not the rule to grant bail to a juvenile. But to judge that one may have to see what evidence appears against the juvenile. The jurisdiction to consider the existence of a prima facie case would somewhere come from the last ground in the proviso to Section 12(1) of the Act, 2015, on which bail may be denied, that is, if it is found that release of the child would defeat the ends of justice. Perhaps, virtually, and, in fact, the factor that would play the most important role in judging the ground based on "the ends of justice being defeated" would refer somewhat to the merits of the case. Else, the merits of the case are irrelevant while judging the bail plea of a juvenile."
06. It appears that in the aforesaid case, the court expressed its opinion that when the last exception as provided in Section 12 (1) proviso of the J.J. Act, 2015 is sought to be applied, the nature of the case and merits thereof may have a role to play.
07. I went through the impugned order dated 08.03.2022 passed by the Additional District & Sessions Judge/Special Judge (POCSO Act), Banda. The Additional District & Sessions Judge/Special Judge (POCSO Act), Banda referred to the judgement of Allahabad High Court passed in Monu @ Moni @ Rahul @ Rohit vs. State of U.P., 2011 Crl.L.J. 4496, wherein it was held that in case the aim and the object of the legislation is not being achieved or the ends of justice may be defeated by releasing the accused, the bail to the juvenile can be declined.
08. The Allahabad High Court in Ankit Babu Sharma (Minor) vs. State of U.P. and Another, (2015) 3 SCCR 362 held that being a juvenile is a fact not enough in itself to entitle him the benefit of bail.
09. This Court in Criminal Revision No.1195 of 2022 ('X' Minor vs. State of U.P.) decided on 12.10.2022 took a view that the gravity of the offence as well as the merits of the matter may be of ample significance when the Court has to form an opinion whether case is one falling within the exceptions as envisaged under the proviso to Section- 12(1) of the Juvenile Justice Act, 2015.
10. In para-8 of the above judgement, it was held as below:-
8. Ordinarily, the merits of the matter may not be unduly 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 gravity and the merits of matter shall have no relevance. In my view, the nature of the crime and factors connected thereto never went into oblivion and this particular aspect have been usefully illuminated by the Courts time and again. I am of the view that in fact nature of the offence and merits of the matter may assume ample significance when the Court has to form an opinion about the ends of justice. It may be noted that the phrase 'ends of justice', cannot exist 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. When viewing the matters of bail from this particular angle of deciphering the ends of justice, not only the nature of crime, but also the manner of commission thereof, methodology applied, the mental state, the extent of involvement, the evidence available shall be the factors to reckon with. To my mind, from this particular point of view, no artificial line can be drawn to differentiate cases of juvenile above 16 years from those who are found just below 16, in ordinary circumstances.
11. In para-11 and para-15 of the same judgement, it was observed that:-
11. The vastness of the ends of justice may pull within its sphere facts and circumstances, which may otherwise seem quite irrelevant and not so important at first glance for the purpose of the applicability of proviso to Section 12 of the Juvenile Justice Act. It may be reiterated that the provisions of the Juvenile Justice Act though largely enacted with a reformative theories in mind, do not obliterate streaks of retributive justice in them and this aspect of the scheme of the Act cannot be glossed over. In the end, the Court may have to depend on its own judicial discretion and objective assessment of the things while still going strictly according to the provisions of law as to bail and also keeping in mind that the Act has intertwined approach reformatory as well as retributive. At this stage, it may be noted that the interest of the child finds mention under the head 'Principle of best interest' as described in Chapter IV, Section 3 (iv) of the Juvenile Justice Act, 2015. And this principle also underlines the matters to be dealt with under the provisions of the Act including matters of bail. And undeniably and unarguably keeping in mind the reformative goals of the Act, the bail can definitely be denied, where there are circumstances to arrive at a conclusion that bail should be declined because of the fact that juvenile shall not get such conducive atmosphere as may be needed for his own welfare and betterment, if released to his family or parents.
15. This thing should be kept in mind that aim and object of the Act is to ensure proper care, protection, development treatment and social reintegration of child, in difficult circumstances by adopting child friendly procedures. Under the 'Act' the moment child alleged to be in conflict with law is apprehended (not arrested), he is to be placed under the charge of the child welfare police officer (not merely a police officer) and is not be lodged in police lockup or jail and if required may be sent to 'observation home'. Even while the Board chooses to exercise its power (of bail) under Section 12(1), it may place such child under the supervision of probation officer and may not release him on surety bonds. In my view, in certain circumstances, the protective custody in observation home may be better than any other custody or release.
12. I went through the judgement of the appellate court. The appellate court, on the basis of social investigation report, was of the opinion that the juvenile in fact needed a strict supervision and further needed to be kept away from the environment in which he was till now and which as per opinion of appellate court, may give him opportunity to indulge in criminal activities. Secondly, the appellate court has also taken into consideration the nature of offence, the conduct of the accused and drew and inference that though the juvenile appears only 14 years of age but his conduct gave indications that mentally he is much above his physical age, besides some other facts and circumstances.
13. This is not disputable that in this case a girl of merely five years i.e. of a very tender age was allegedly put to violent sexual assault when she had gone to a nearby shop for buying some toffees etc. The circumstances suggest that obviously she was well known to the juvenile as they belonged to same village. The assault was such that she sustained a tear at the right side of anus. The shock and trauma caused to her family members and also to ignorant little girl can easily be understood. In my view, such a juvenile may be in dire need of professional counselling and strict supervision which can only be imparted by the functionaries as per the scheme of the Juvenile Justice Act, 2015 and not by releasing him back to his parents where as per social investigation report both of them are illiterate and earning by doing physical labour. It is not only in his own interest but also in the interest of society at large that he grows into an adult with a healthy mind. The main aim and object of the act which keeps the interest of the juvenile as a primary concern cannot be achieved by releasing the juvenile in custody of his parents, besides his release may cause the family of the victim to react in a manner which may not contribute to juvenile's welfare and reformation.
14. In view of the above facts and circumstances, I do not find any ground to interfere in the impugned orders. Therefore, the criminal revision is dismissed.
Order Date :- 17.11.2022/Asha/Saif