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2010 DIGILAW 2417 (ALL)

SHIV PUJAN @ RAM POOJAN v. STATE OF U. P.

2010-08-10

ASHOK SRIVASTAVA

body2010
JUDGMENT Hon’ble Ashok Srivastava, J.—This criminal revision has been directed against the judgment and order dated 22.12.2008 passed by the learned Sessions Judge, Basti in Criminal Appeal No. 148 of 2008. 2. An F.I.R. was lodged by one Ram Bahadur with the police of Police Station Nawabganj, Gonda on 6.5.2008 under Section 376 I.P.C. against the revisionist. It has been alleged in the F.I.R. that on 5.5.2008 in between 10.00 P.M. to 11.00 P.M., the revisionist entered the residential house of the complainant and committed rape upon the 7 years old grand daughter of the complainant. The revisionist was arrested and produced before the Court. He took a plea before the Court that he was a juvenile on the date of the alleged offence and, therefore, he should be declared as such and his matter be referred to the Juvenile Justice Board, Basti (for the sake of convenience hereinafter referred to as ‘Board’). Thereafter the matter was referred to the Board. After hearing both the parties, the Board vide its order dated 18.9.2008 held that the revisionist was a juvenile on the relevant date. Thereafter an application for bail under Section 12 of The Juvenile Justice (Care and Protection of Children) Act, 2000 (for the sake of convenience hereinafter referred to as ‘Act’) was moved before the Board. After hearing both the parties, the bail application was rejected. Feeling aggrieved by the said order passed by the Board, the revisionist filed Criminal Appeal No. 148 of 2008 before the learned Sessions Judge, Basti under the provisions of Section 52 of the Act. After hearing, the learned Sessions Judge dismissed the appeal. Feeling aggrieved by the said judgment, the present revision has been filed. 3. I have heard learned counsel for the parties and perused the records. 4. It has been submitted from the side of the revisionist that the judgment and order impugned herein is bad in the eyes of the law and the learned Sessions Judge has failed to apply his mind in the matter in a proper manner. It has been further submitted that the learned Sessions Judge as well as learned Board had overlooked the mandatory provisions of the Act and the law laid down by this Court and also of the Apex Court. It has been further submitted that the learned Sessions Judge as well as learned Board had overlooked the mandatory provisions of the Act and the law laid down by this Court and also of the Apex Court. It has also been submitted that the learned Board while passing the bail rejecting order dated 10.11.2008, relied upon certain facts which actually did not exist. It has further been submitted that the report submitted by the District Probation Officer before the learned Board is completely in favour of the revisionist despite no importance was given to it and this perverse finding of the Board was confirmed by the learned Sessions Judge in appeal without proper appreciation of the facts. The revisionist has cited a judgment Shailendra Kumar Yadav v. State of U.P., 2006(10) ADJ 543 . 5. Learned A.G.A. has opposed this revision. He has submitted that the revisionist has committed rape upon an infant girl of 7 years and it is a crime against the society. He has further submitted that in rest of her life the victim will suffer with this trauma and always have a feeling of humiliation while moving in the society. 6. In the instant case, the revisionist is admittedly a juvenile. The Juvenile Justice Act has been enacted for the benefit of juvenile offenders. It means that they will not be allowed to remain in custody without any valid reason. For a healthy development of personality, a healthy atmosphere should be given to a juvenile offender and it is an indefeasible necessity. The Act has been provided for care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for adjudication of certain matters relating to, and disposition of, delinquent juveniles. It is needless to say that this Act has got protection of the Indian Constitution. The Indian Constitution imposes upon the State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected. As back as in the year 1989 General Assembly of the United Nations adopted the Convention on the Rights of the Child wherein a set of standards to be adhered to by all State parties in securing the best interest of the child has been prescribed. To achieve this object, the Act was enacted in the year 2000. 7. As back as in the year 1989 General Assembly of the United Nations adopted the Convention on the Rights of the Child wherein a set of standards to be adhered to by all State parties in securing the best interest of the child has been prescribed. To achieve this object, the Act was enacted in the year 2000. 7. From the perusal of the orders passed by the Board it is evident that the learned Principal Magistrate has mentioned that as per the report of the District Probation Officer, the revisionist belongs to a middle class family and the juvenile does not have any criminal background. It has also come in his order that as per the report of Police Station Nawabganj, there was no criminal history behind the revisionist. Nothing has been mentioned in this order that there existed any circumstance which may go against him. Despite, the learned Board has presumed that if the juvenile is released on bail, he may come into contact of known or unknown criminals. I do not find that there is any rationale in the reasonings given by the learned Principal Magistrate presiding the Board. Rather it is based on conjectures and surmises. 8. Now let us examine the judgment and order passed by the learned Sessions Judge, Basti which is impugned herein. In the last but one para of his judgment, the learned Sessions Judge has said that the findings of the Juvenile Justice Board is sound and based on records. He has dealt with the mental condition of the victim and has said that incident has destroyed the entire psychology of the girl and she may be pushed into deep mental problem. In the instant case the revisionist is a juvenile. He cannot be kept at par with an adult accused. There is a separate law for juveniles and therefore the other face of the coin should also be seen while disposing of such matters. The Act has been enacted with a specific purpose and that is the immature understanding of the alleged crime by a juvenile. The juvenile cannot be put on the same footing upon which an adult can be kept. In my opinion, the learned Sessions Judge has not considered at all the purpose for which the Act has been enacted. 9. The Act has been enacted with a specific purpose and that is the immature understanding of the alleged crime by a juvenile. The juvenile cannot be put on the same footing upon which an adult can be kept. In my opinion, the learned Sessions Judge has not considered at all the purpose for which the Act has been enacted. 9. Section 12 of the Act makes it mandatory that if a juvenile is arrested or detained or appears or is brought before a Board, he shall be released on bail. He shall shall not be released if there appear reasonable grounds for believing that the release is likely o 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. 10. In the instant case no facts have been mentioned by the Board which may indicate that if the juvenile is released on bail, he will come into association with any known criminal. There is no fact either in the order of the Board that the release is likely to bring the juvenile into association of such person which may expose him to moral, physical and psychological danger. As far as the last para of Section 12 (1) of the Act,? that the release of the juvenile would defeat the ends of justice,? is concerned, I do not find any fact which may indicate that the juvenile, if release on bail, will be hazardous to society or he may be in a position to cause anything which may be termed as something abnoxious or dangerous to the society at large. 11. In the circumstances mentioned above, I am of the view that the order passed by the Board and confirmed by the learned Sessions Judge, Basti are not based on sound reasonings and should be set aside. As a consequence the revision is allowed. 12. In the instant case it is also to be seen that the alleged crime is heinous. Therefore, it appears necessary that the revisionist should be released on bail but he should be in constant supervision of the District Probation Officer of the district concerned till the disposal of the matter pending before the Board. 13. 12. In the instant case it is also to be seen that the alleged crime is heinous. Therefore, it appears necessary that the revisionist should be released on bail but he should be in constant supervision of the District Probation Officer of the district concerned till the disposal of the matter pending before the Board. 13. Let the revisionist, Shiv Poojan alias Ram Poojan be released on bail in Case Crime No. 170 of 2008, under Section 376 I.P.C., Police Station Nawabganj, District Gonda on furnishing a personal bond of the father/legal guardian with two reliable sureties each in the like amount to the satisfaction of the Juvenile Justice Board, Basti. 14. The father of the revisionist, Shiv Poojan alias Ram Poojan is directed to keep the revisionist under his guidance and will make an endeavour to ensure that he may not commit any act which may be termed as illegal, immoral or against the norms of the society. The revisionist shall be placed under the supervision of the District Probationary Officer of the district concerned till the disposal of the matter as already mentioned above. If the District Probation Officer finds that conditions imposed herein are violated he shall report the matter to the Board and the Board shall be at liberty to cancel the bonds and send the revisionist to a special home as described in Section 9 of the Act. —————