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2014 DIGILAW 2525 (ALL)

Shabbir v. State of U. P.

2014-08-19

RANJANA PANDYA

body2014
JUDGMENT Mrs. Ranjana Pandya,J. This criminal revision has been preferred against the order dated 6.6.2014 passed by the Additional Sessions Judge, Court No. 3 Bulandshahr dismissing Criminal Appeal No. 63 of 2014, Shabbir Vs. State of U.P., and the order dated 15.4.2014 passed by the Juvenile Justice Board, Bulandshahr in Bail Application No. 44 of 2014 whereby the bail application of the revisionist has been rejected. 2. Brief facts are that the complainant Salim Khan gave a written report at the police station stating that he is resident of Jatiyan-2, Chacharai Road, Qasba Jahnagirabad, District Bulandshahr. On 19.10.2013 at 1.30 in the noon, he was going with his wife to leave his nephew at Bulandshahr. On the way, he was informed that Shabana had called the complainant's daughter, namely, Manisha to her house and had closed her in a room with her brother Shabbir, who raped the complainant's daughter. When the mother of the complainant, namely Asharfi Begum went to trace the daughter of the complainant, she heard the shrieks of the daughter of the complainant. On this Ishtiyak and Asharfi Begum reached the spot and broke open the lock of Shabbir's house and from their Manisha aged about 12 years was recovered. 3. I have heard learned counsel for the revisionist and the learned A.G.A. 4. The revisionist claimed himself to be a juvenile under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act). Perusal of the record shows that the revisionist was declared juvenile, vide order dated 3.4.2014. There is nothing on record to show that this order has not attained finality. The bail application of the Juvenile Shabbir was rejected by the Juvenile Justice Board on 15.4.2014 against which appeal was filed before the Sessions Judge, Bulandshahr, which appears to have been transferred to the court of Additional Sessions Judge, Court No. 3, Bulandshahr, who dismissed the appeal, vide order dated 6.6.2014. 5. The bail application of the Juvenile Shabbir was rejected by the Juvenile Justice Board on 15.4.2014 against which appeal was filed before the Sessions Judge, Bulandshahr, which appears to have been transferred to the court of Additional Sessions Judge, Court No. 3, Bulandshahr, who dismissed the appeal, vide order dated 6.6.2014. 5. It is contended by the learned counsel for the revisionist that in the present case the revisionist has been declared juvenile by the Principal Judge, Juvenile Justice Board and, thus, he is entitled to bail under the provisions of Section 12 of the Act but the learned Juvenile Justice Board and the learned Additional Sessions Judge, Bulandshahr have refused bail to the juvenile without considering the provisions as laid down under Section 12 of the Act. He has argued that no plausible and valid reasons have been given for refusing bail to the revisionist. 6. The revision has been opposed by the learned A.G.A. who has submitted that the offence committed by the revisionist is of a grave nature and if he is released on bail, he would come in the association of criminals. Thus, the revision is likely to be dismissed and the revisionist may not be released on bail. For the purpose of bail, provision of Section 12 (1) of the Act needs to to be quoted, which reads as follows: - "(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is 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 but he shall not be so released if there appear reasonable grunds 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. " 7. The ground written by the learned court below is that Shabbir has no proper guardianship and his family does not have control over him. The report of the Probationary Officer is annexure no. 6 to the revision in which it has been held that the juvenile has a tendency to commit crime. " 7. The ground written by the learned court below is that Shabbir has no proper guardianship and his family does not have control over him. The report of the Probationary Officer is annexure no. 6 to the revision in which it has been held that the juvenile has a tendency to commit crime. What is the basis of this observation is wanting in the report. In Sahabuddin @ Shabboo Vs. State of U.P., 2002 Law Suit (All) 783, it has been held that as under: - " As the law requires, bail to any juvenile is to be refused if there appear reasonable grounds to believe that the release is likely to bring him into association with known or unknown criminals or expose him to mental, physical or psychological danger or that his release will defeat the ends of justice. A perusal of the present order does not indicate any of these three ingredients in the case of this applicant. Harshness of the crime may be a ground for refusing bail to any accused but it cannot form a ground for the accused who has been found a juvenile. In the case of such person two courses are open for the Court either to grant him bail and hand him over to the safe custody of his parents or any other responsible person willing to take charge of him or send him to a juvenile or reformative home. None of the two courses was adhered to by the juvenile Court. Had that been done, probably question of bail would not have arisen." 8. Thus, I feel the revision is likely to be allowed. The order of the juvenile justice board dated 15.4.2014 and that of the Sessions Judge, Court No. 3, Bulandshahr dated 6.6.2014 both are set aside. 9. Let the revisionist Shabbir be released on bail in Case Crime No. 409 of 2013 under Section 376 I.P.C. and under Section 4 of the POCSO Act, Police Station Jahangirabad, District Bulandshahr on his guardian's furnishing personal bond and two sureties in the like amount to the satisfaction of the Chief Judicial Magistrate concerned and undertaking to the effect that he will not let the juvenile come in the association with any known criminal and will assure that he is not exposed to moral, physical or psychological danger. 10. Accordingly, this revision is allowed.