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Allahabad High Court · body

2017 DIGILAW 2535 (ALL)

Rahul Patel (Minor) v. State Of U. P.

2017-11-03

VIJAY LAKSHMI

body2017
JUDGMENT : VIJAY LAKSHMI, J. 1. The present revision is preferred against the judgment and order dated 17.2.2017 passed by Additional Sessions Judge/F.T.C. Court No. 20, Allahabad in Criminal Appeal No. 243 of 2016, whereby the appeal filed by a juvenile against the rejection of his bail application by Juvenile Justice Board vide order dated 29.11.2016 arising out of Case Crime No. 148 of 2016, under Sections 363, 366 and 376-D I.P.C., Police Station Holagarh, district Allahabad, has been dismissed. 2. No one appeared on behalf of opposite party no. 2 despite sufficient service of notice, which is apparent from the office report dated 1.7.2017 showing that the notice has been personally served on the wife of opposite party no. 2. On 24.3.2017 this Court had directed the opposite party no. 2 to file counter affidavit within four weeks. However, despite the expiry of a considerable period, no counter affidavit has been filed by opposite party no. 2 till today. 3. Heard learned counsel for the revisionist and learned A.G.A. Perused the record. 4. Learned counsel for the revisionist has submitted that the revisionist is innocent, he was a juvenile at the time of occurrence and the Juvenile Justice Board vide its order dated 4.11.2016 had declared the revisionist as a juvenile. However, the benefits of Juvenile Justice Act were not extended to the revisionist and his bail applications were illegally rejected by both the courts below. It is further contended that there is a delay of 10 days in lodging the F.I.R. which itself makes the occurrence false and concocted. It is next submitted that there are material contradictions between the F.I.R. version of the story and the statements of the victim recorded under Sections 161 and 164 Cr.P.C. The victim has given statement under Section 164 Cr.P.C. under pressure of her parents. It is further contended that the radiological age of the victim has been found to be of 21 years and the medical evidence does not support the story of rape as no injury has been found on the body of the victim. The medical examination report also shows that in her statement given to the doctor, the victim has stated that Rahul's uncle Ram Poojan had committed rape with her. Thus, there is no allegation of rape against the present revisionist (Rahul). The medical examination report also shows that in her statement given to the doctor, the victim has stated that Rahul's uncle Ram Poojan had committed rape with her. Thus, there is no allegation of rape against the present revisionist (Rahul). It is further contended that the occurrence is said to have taken place on 17.9.2016 whereas during medical examination, which has been conducted on 3.10.2016, the victim has been found 9 weeks 3 days pregnant, which clearly shows the false implication of the revisionist. It is lastly submitted that the revisionist has no criminal antecedent, there is nothing adverse in the report of the D.P.O., the revisionist is languishing in 'Observation Home' since long. Therefore the impugned orders rejecting his bail applications which have been passed without keeping in view the provisions of Section 12 of the Juvenile Justice Act be set aside and the revisionist-juvenile be released on bail. 5. Per contra, learned A.G.A has supported both the impugned orders and has submitted that the parents have got no control over the revisionist offender therefore for the betterment of his future life, his retention in Juvenile Home has been rightly ordered by both the courts below. Consequently instant revision being merit less be dismissed. 6. After giving my thoughtful consideration to the arguments advanced by both sides, I am of the considered view that this instant revision deserves to be allowed for the reasons mentioned below:- 7. Section 12(1) of Juvenile Justice (Care and Protection of Children) Act, 2000 provides as under :- "12. Bail of Juvenile-(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 o 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 institution or fit person) but he shall not be so released if there appear 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." 8. The Apex Court in a catena of judgments has constantly held that gravity of the offence is not a ground to deny bail to a juvenile accused. Unless the conduct of the accused is such to indicate that in all likelihood, after being released on bail, the juvenile-accused will indulge into more crimes. If there are no imminent chances of his repeating the crime, bail to a juvenile should not be ordinarily refused. 9. In A Juvenile Vs. State of Orissa : 2009 Cr.L.J. 2002, it has been observed as under:- "A Juvenile needs parental protection and guidance to bring him back to the mainstream of the society from which he has strayed. Thus his release on bail would aid the ends of justice rather than defeat it." 10. In Prakash Vs. State of Rajasthan: 2006 Cr.L.J. 1373, it has been observed thus:- "9. At the time of consideration of bail under Section 12 of the Act, the merit or nature of offence has no relevancy. The language of Section 12 of the Act, using the word "shall" is mandatory in nature and providing non obstante clause by using the expression "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force be released on bail" shows the intention of the Legislature to grant bail to the delinquent juvenile offender by releasing him on bail who is arrested or produced before a Court; however, with exception to release him on bail if there are reasonable grounds for believing that his 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. It is for the prosecution to bring on record such material while opposing the bail and to make out any of the grounds provided in this Section which may persuade the Court not to release the juvenile on bail. 10. The Act is beneficial and social oriented legislation which needs to be given full effect by all concerned whenever the case of juvenile comes before them. 10. The Act is beneficial and social oriented legislation which needs to be given full effect by all concerned whenever the case of juvenile comes before them. In absence of any material or evidence of reasonable ground to believe that the delinquent juvenile, if release on bail, is likely to come into association with any known criminal or expose him to moral, physical or psychological danger, it cannot be said that his release would defeat the ends of justice. On the contrary, keeping in view the legislative intent in enacting the Act, the juvenile offender deserves to be released on bail." 11. In Sanjay Chaurasiya Vs. State of U.P.: 2006 Cr.L.J. 2957 it has been observed as follows:- "10. In case of the refusal of the bail, some reasonable grounds for believing above mentioned exceptions must be brought before the court concerned by the prosecution but in the present case, no such ground for believing any of the above mentioned exceptions has been brought by the prosecution before the Juvenile Justice Board and appellate court. The appellate court dismissed the appeal only on the presumption that due to commission of this offence, the father and other relatives of other kidnapped boy had developed enmity with the revisionist, that is why in case of his release, the physical and mental life of the revisionist will be in danger and his release will defeat the ends of justice but substantial to this presumption no material has been brought before the appellate court and the same has not been discussed and only on the basis of the presumption, Juvenile Justice Board has refused the bail of the revisionist which in the present case is unjustified and against the spirit of the Act. It appears that the impugned order dated 27-6-2005 passed by the learned Sessions Judge, Meerut and order dated 28-5-2005 passed by the Juvenile Justice Board are illegal and are hereby set aside". 12. Above pronouncements are fully applicable to the facts of this revision. The impugned orders have been passed by both the Courts below merely on the basis of presumption and guess work without any substance. 13. In view of the above discussions, the revision deserves to be allowed and is hereby allowed. 12. Above pronouncements are fully applicable to the facts of this revision. The impugned orders have been passed by both the Courts below merely on the basis of presumption and guess work without any substance. 13. In view of the above discussions, the revision deserves to be allowed and is hereby allowed. Both the impugned orders passed by Juvenile Justice Board as well as lower appellate court are set aside and the courts below are directed to release the revisionist on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned in the aforesaid case crime with the condition that the parents of the revisionist will take care of his education and betterment and they will not allow him to indulge in any criminal activity and will keep a check on his activities. Both the sureties are directed to be close relative of the revisionist juvenile.