JUDGMENT : 1. Rohit Kumar, a child in conflict with law has invoked the jurisdiction of this Court under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the 'Act') assailing a judgment and order passed by Sri Sarvesh Chandra Pandey, Additional District and Sessions Judge, Court no.1, Azamgarh dated 21.12.2017 dismissing Criminal Appeal No.151 of 2017 and affirming an order dated 14.12.2017 made by the Juvenile Justice Board, Azamgarh in Case no.144 of 2017 (arising out of Case Crime no.170 of 2017), under Sections 354A, 376D, 506 IPC and Section 3/4 of the POCSO Act, Police Station Sarai Meer, District Azamgarh denying bail plea by Rohit. 2. Facts giving rise to the instant revision are that a First Information Report was lodged by one Urmila wife of Ram Ajor to the effect that her daughter and hereinafter referred to as the 'prosecutrix' aged about 15 - 16 years was eve teased by some boys who are natives of her village, to wit, Surendra son of Ram Jatan, Amarjeet son of Lal Singh, Suraj son of Mohan and Rohit son of Harish Chandra (revisionist), and, that she complained in the matter to their parents, which did not move them. It was said in the information that in the meanwhile the informant had to proceed to Faridabad in connection with her medical treatment. During this time on 13.08.2017, Rohit came over to her house and told the prosecutrix that Surendra's sister-in-law (Bhabhi) was calling her. In response the prosecutrix went over to Surendra's place, where she did not find his sister-in-law home. Rohit has two houses and not finding his sister-in-law at the one where the prosecutrix first went, she proceeded to the other house. There all the four boys, last mentioned, including Rohit were present, of whom the prosecutrix enquired, where Rohit's sister-in-law was. Rohit responded by telling the prosecutrix that she was sitting inside. The prosecutrix went inside to find the door shut behind her, confining her to the room, where Surendra was already present. Surendra muffled her voice by a tight grip of his palm to her mouth and by the other he shot a photograph of the prosecutrix’s, using his mobile. Thereafter, he attempted to ravish her by use of force, but the prosecutrix resisted and cried out loud. Surendra muffled her voice by a tight grip of his palm to her mouth and by the other he shot a photograph of the prosecutrix’s, using his mobile. Thereafter, he attempted to ravish her by use of force, but the prosecutrix resisted and cried out loud. He threatened her with sending out her photograph over Whatsapp and turned on the volume of a music player to deafening decibels, in consequence of which the prosecutrix's cry for help could not be heard outside. In the meanwhile, the prosecutrix banged the doors and windows in order to invite attention, and, in the meantime, electric supply went off (turning off the music system). This scared the offenders, who opened the door and took to their heels. The prosecutrix still crying rushed to her brother and sister-in-law (Bhabhi) to whom she narrated the entire episode. The brother of the prosecutrix immediately proceeded to Surendra's sister-in-law and shared the information with her, who told the prosecutrix's brother that when his mother and Surendra's mother would return from Faridabad, this matter would be brought to their concern. As these facts were reported to the police in writing by the mother of the prosecutrix, a First Information Report giving rise to the crime under reference was registered under Sections 354, 506 IPC and Section 7/8 of the POCSO Act. 3. In her statement recorded under Section 164 Cr.P.C. before Magistrate, the prosecutrix seemingly did a material alteration to the FIR version and bolstered the prosecution case, the cardinal features of which, different from the FIR version, are to the effect that Rohit called her over to Surendra's place saying that it was the prosecutrix's sister-in-law (Bhabhi), who was calling her there as against the FIR version, where it is said that Rohit told the prosecutrix that it was Surendra's sister-in-law (Bhabhi), who was calling her to Surendra's place. The most material variation in the prosecution account that was introduced by the prosecutrix in her statement under reference is to the effect that when she went to Surendra's place to meet her sister-in-law, who had according to Rohit's representation called her to Surendra's place, she did not find her there and instead the four accused, Rohit and Surendra included, ravished her by turns muffling her cry for help under the deafening sound of a blaring music system. Suddenly, the electricity supply went out and the prosecutrix cried out for help, which led the offenders to take to their heels. The prosecutrix has gone on to say that thereupon she went to her brother crying and told him everything except the fact of having suffered rape. The statement closes with the prosecutrix saying that she has nothing to add. 4. It is on the aforesaid statement of the prosecutrix that the case was converted from one under Sections 354, 506 IPC and Section 7/8 of the POCSO Act to one under Sections 354A, 506, 376D IPC and Section 3/4 of the POCSO Act. In due course, the matter was investigated and the accused have been charge sheeted. 5. At the time of incident, the revisionist was a minor and he made an application to the Juvenile Justice Board that he may be declared a juvenile/a child in conflict with law and dealt with as such. The Juvenile Justice Board considered the aforesaid plea put forth on behalf of the revisionist and by their order dated 11.12.2017 held his age to be 17 years 4 months and 14 days on the date of occurrence, and, accordingly, declared him a juvenile. The revisionist having been declared a juvenile applied for bail to the Juvenile Justice Board, who took into consideration the three parameters envisaged under the proviso to Section 12(1) of the Act and opined that looking to the act of the juvenile in ravishing the prosecutrix, shooting her photograph, threatening to put it on Whatsapp are factors which would lead to the ends of justice being defeated in case the revisionist were enlarged on bail. It was further held that releasing the revisionist on bail would also lead the juvenile to be exposed to moral, physical or psychological danger. Saying so, the Juvenile Justice Board rejected the bail application of the revisionist by their order dated 14.12.2017. 6. The revisionist to secure his liberty appealed the order under Section 101 of the Act to the Sessions Judge, Azamgarh vide Criminal Appeal no.151 of 2017, which came up for determination before the Additional Sessions Judge, Court no.1, Azamgarh, who has proceeded to dismiss the same and affirmed the Juvenile Justice Board. 7. Aggrieved the present revision has been filed. 8. 7. Aggrieved the present revision has been filed. 8. Heard Sri Rajesh Kumar, learned counsel for the revisionist and Sri Vishwajyoti Sahai, learned A.G.A. along with Sri Avanish Shukla, learned counsel appearing on behalf of the State. 9. At the outset, learned counsel for the revisionist has invited the attention of this Court to the fact that an adult co-accused, Surendra, has been admitted to the concession of bail by this Court vide order dated 08.11.2017 passed in Criminal Misc. Bail Application no.42724 of 2017, a copy of which is annexed as Annexure 6 to the affidavit filed in support of the present revision. This Court has been taken through the bail order dated 08.11.2017 passed in the case of co-accused Surendra, an adult offender, by this Court which the Court has carefully considered. This Court in case of Surendra while proceeding to grant bail has largely opined in favour of bail on ground of material variation between the first information version and the case of the prosecutrix under Section 164 Cr.P.C. by noticing the contentions of the applicant in the following words:- "As per FIR on 13.8.2017, the prosecutrix was molested by the applicant with the help of other co-accused. A written report regarding the molestation was lodged on 29.8.2017. The statement of the prosecutrix under Section 164 Cr.P.C. was recorded wherein she deposed that after molestation it was the Surendra who committed rape on her also. It is submitted by learned counsel for the applicant that applicant is innocent and has been falsely implicated in the present case. Initially in the FIR no case of rape was narrated but later on after a thought a new story has been cooked into. AS per medical report the prosecutrix is major and no injury was observed by the doctor on her body during the examination." (Emphasis by Court) 10. No doubt if an adult offender is entitled to bail on ground that a prima facie case is not made out, certainly a child in conflict with law on the same charge and evidence would also be entitled to bail bereft of reference to the provisions of Section 12(1) of the Act that come into play even when a case against the juvenile offender prima facie is made out to an extent that if he were an adult, he would not be entitled to bail. In that situation the juvenile is still entitled to bail as a matter of rule subject alone to the three known exceptions engrafted in the proviso to Section 12(1) of the Act, that are:- 1. Where there are reasonable grounds for believing that the release is likely to bring the child into association with any known criminal 2. The release is likely to expose the child to moral, physical or psychological danger 3. The release of the child would defeat the ends of justice. 11. To place the law in perspective on this point, the decision of this Court in Dharmendra (juvenile) vs. State of U.P. and others, Criminal Revision no.4141 of 2017, may be quoted with profit:- "10. The matter can be looked at from another vantage. In case the revisionist were an adult and stood charged of the offence that he faces with a weak circumstantial evidence of last seen and confession to the police, in all probability, it would have entitled him to bail pending trial. If on the kind of evidence forthcoming an adult would be entitled to bail, denying bail to a child in conflict with law may be denying the juvenile/child in conflict with law the equal protection of laws guaranteed under Article 14 of the Constitution. 11. The rule in Section 12(1) of the Act is in favour of bail always to a juvenile/child in conflict with law except when the case falls into one or the other categories denial contemplated by the proviso. It is not the rule about bail in Section 12 of the Act that in case a child in conflict with law is brought before the Board or Court, his case is not to be seen on merits prima facie about his complicity at all for the purpose granting him bail; and all that has been done is to see if his case falls is one or the other exceptions, where he can be denied bail. The rule in Section 12 sanctioning bail universally to every child in conflict with law presupposes that there is a prima facie case against him in the assessment of the Board or the Court based on the evidence placed at that stage. The rule in Section 12 sanctioning bail universally to every child in conflict with law presupposes that there is a prima facie case against him in the assessment of the Board or the Court based on the evidence placed at that stage. It is where a case against a child in conflict with law is prima facie made out that the rule in Section 12(1) of the Act that sanctions bail as a rule, except the three categories contemplated by the proviso comes into play. It is certainly not the rule, and, in the opinion of the Court cannot be so, that a case on materials and evidence collected not being made out against a child at all, his case has to be tested on the three parameters where bail may be denied presuming that a prima facie case is constructively there. Thus, it would always have to be seen whether a case prima facie on merits against a child in conflict with law is there on the basis of material produced by the prosecution against him. If it is found that a prima facie case on the basis of material produced by the prosecution is there that would have led to a denial of a bail to an adult offender, in that case also the Rule in Section 12(1) of the Act mandates that bail is to be granted to a juvenile/child in conflict with law except where his case falls into any of the three disentitling categories contemplated by the proviso. 12. In the opinion of this Court, therefore, the perception that merits of the case on the basis of prima facie evidence is absolutely irrelevant to a juvenile's bail plea under the Act would not be in conformity with the law. The catena of decisions that speak about merits of the case or the charge against a juvenile being irrelevant, proceed on facts and not an assumption that a case on merits is made out, and, not where the case is not at all made out prima facie. It is not that a child alleged to be in conflict with law against whom there is not iota of evidence to connect him to the crime would still have bail denied to him because his case may be placed in or the other disentitling categories under the proviso to Section 12(1) of the Act. It is not that a child alleged to be in conflict with law against whom there is not iota of evidence to connect him to the crime would still have bail denied to him because his case may be placed in or the other disentitling categories under the proviso to Section 12(1) of the Act. If this kind of a construction were to be adopted it might expose the provisions of Section 12(1) of the Act to challenge on ground of violating the guarantee of equal protection of laws enshrined in Article 14 of the Constitution. It is an enduring principle that a construction that lends a statute to challenge about its constitutionality should be eschewed and one that saves and upholds its vires is to be adopted. In this context the guidance of their Lordships of the Hon'ble Supreme Court in Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 may be referred to:- "51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of 'litera legis'. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution." 12. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution." 12. So far as the plea based on a parity of sorts from the case of Surendra is concerned, this Court is not inclined to accept the plea of parity for the juvenile based on the premise that on parity from the case of Surendra, an adult offender, the prosecution on merits of the charge is prima facie not established against the revisionist also. This Court is not inclined to extend the benefit of parity based on the decision of this Court in re Surendra (supra), inasmuch as, in that case His Lordship perhaps, amongst other evidence, took into account a submission advanced on behalf of the applicant that contrary to the FIR the statement of the prosecutrix under Section 164 Cr.P.C. shows that after molestation "it was Surendra who committed rape upon her also". That is how the matter was viewed in that case in its totality. But this Court feels that in Surendra (supra) on the submissions noticed on both sides by this Court, it did not figure in prominent relief that it was a case where the prosecutrix categorically urged "a case of gang rape" by each of the four accused, including Surendra; it is not that Surendra alone raped her. No doubt there is a vastly discrepant version in the FIR and the statement of the prosecutrix under Section 164 Cr.P.C., but with utmost respect to the opinion expressed by His Lordship while granting bail to co-accused Surendra, this Court is not inclined to extend the benefit of parity based on the case of Surendra. However, that is not to say that it is a case where the applicant may not at all have a case to urge on merits that the charge against him is not prima facie discernible to an extent that if he were an adult offender, he would be entitled to bail under Section 439 Cr.P.C. To pronounce upon that aspect may be to pre-empt a decision that, what would be said a little later, might still rest in the first instance, to be taken afresh by the Appellate Court. 13. 13. In this revision true to the nature of a revisional jurisdiction, this Court is more concerned about the legality or propriety of any order passed by any Committee or Board or Children's Court or Court and not so much to act as if it were a court of first instance dealing with the juvenile's bail application in exercise of its concurrent and original jurisdiction akin to Section 439 Cr.P.C. Section 102 of the Act at this junction needs to be recapitulated in words of the statute, which reads thus:- "Section 102. Revision.-The High Court may, at any time, either on its own motion or on an application received in this behalf, call for the record of any proceeding in which any Committee or Board or Children's Court, or Court has passed an order, for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit: Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard." 14. This Court, thus, in accordance with its duty has examined the orders passed by the two courts below. The Juvenile Justice Board after noticing the parameters on which bail may be denied to a juvenile and in all other eventualities granted, has opined in a rather cryptic determination that release of the juvenile on bail would result in the ends of justice of being defeated, and, also, it would expose him to moral, physical and psychological danger. The reasons for that conclusion have not been detailed, but the Board has, in a way, looked at the matter in the perspective that a juvenile's plea for bail has to be considered. Beyond this nothing more need be said about the order of the Board as that has met with appellate approval of the learned Sessions Judge. 15. The reasons for that conclusion have not been detailed, but the Board has, in a way, looked at the matter in the perspective that a juvenile's plea for bail has to be considered. Beyond this nothing more need be said about the order of the Board as that has met with appellate approval of the learned Sessions Judge. 15. Turning to the orders of the Sessions Judge, this Court feels it imperative to quote the material part of the learned Sessions Judge's order made in appeal that is rendered in Hindi vernacular, and, is being extracted below:- ^^fo}ku vf/koDrk ,oa vfHk;kstu dks lquk rFkk vfHkys[kksa dk voyksdu djus djus ds mijkUr ihfM+rk }kjk fn;k x;k c;ku vUrxZr /kkjk 164 na0iz0la0 dk voyksdu djus ij izkFkhZ dk ;g dFku Lohdkj fd;s tkus ;ksX; ugha ik;k tkrk gS fd mlds }kjk dsoy ihfM+rk dks cqykuk ,Q-vkbZ-vkj- esa dgk x;k gS] tcfd ihfM+rk us Lo;a /kkjk 164 na0iz0la0 esa eftLVªsV dks fn;s x;s c;ku esa dFku fd;k gS fd esjh HkkHkh nqdku ij x;h Fkh] ml le; lqcg 10 cts jgs Fks jksfgr vkdj eq>ls dgk fd rqEgkjh HkkHkh rqedks lqjsUæ ds ?kj ij cqyk jgha gS] eSa lqjsUæ ds ?kj x;h rks eq>s esjh HkkHkh ogka ugha feyh eSa okil vkus yxh rks eq>s idM+ dj lqjsUæ ds ?kj lwjt] jksfgr] vejthr us /kdsy fn;k] lwjt] jksfgr] lqjsUæ o vejthr pkjksa us esjs lkFk ckjh&ckjh ls cykRdkj fd;k FkkA bu ifjfLFkfr;ksa esa ÁkFkhZ@vfHk;qDr dh vihy Lohdkj fd;s tkus ;ksX; ugha gSA^^ 16. The act does not define what is meant by an appeal. The word is not defined even in the Code of Criminal Procedure and in many great codes like the Code of Civil Procedure. This is for the reason that what an appeal means to the law of procedure, to which in part it belongs has come to be too well settled and acceptable, both for an idea and notion that the law has little doubt about. Appeal in its most fundamental sense is a complaint from an inferior court to a superior court that a decision by the inferior court is bad on fact or law or both, depending upon the terms of the statute that creates the right to appeal. Appeal in its most fundamental sense is a complaint from an inferior court to a superior court that a decision by the inferior court is bad on fact or law or both, depending upon the terms of the statute that creates the right to appeal. The right to appeal a decision of an inferior court to a superior court is not an inherent right, but always one that is expressly conferred by statute, and, therefore, subject to all such parameters about the scope and issues that may be dealt with in appeal are spelt by the statute creating that right. 17. In this context the decision of their Lordships of the Supreme Court in State of Gujarat vs. Salimbhai Abdulgaffar Shaikh and others, (2003) 8 SCC 50 , which again, incidentally, is a decision about an appeal from an order granting or refusing bail under Section 34(4) of the POTA, it was held by their Lordships, thus:- "10. Sub-section (4) of Section 34 of POTA provides for an appeal to the High Court against an order of the Special Court granting or refusing bail. Though the word 'appeal' is used both in Code of Criminal Procedure and Code of Civil Procedure and in many other Statutes but it has not been defined anywhere. Over a period of time, it has acquired a definite connotation and meaning which is as under:- "A proceeding undertaken to have a decision reconsidered by bringing it to a higher authority, specially the submission of a lower Court's decision to higher Court for review and possible reversal. An appeal strictly so called is one in which the question is, whether the order of the Court from which the appeal is brought was right on the material which the Court had before it. An appeal is removal of the cause from an inferior to one of superior jurisdiction for the purposes of obtaining a review or retrial. An appeal generally speaking is a rehearing by a superior Court on both law and fact." 11. Broadly speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court, and in view of express language used in sub-section (1) of Section 34 of POTA the appeal would lie both on facts and on law. Broadly speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court, and in view of express language used in sub-section (1) of Section 34 of POTA the appeal would lie both on facts and on law. Therefore even an order granting bail can be examined on merits by the High Court without any kind of fetters on its powers and it can come to an independent conclusion whether the accused deserves to be released on bail on the merits of the case. The considerations which are generally relevant in the matter of cancellation of bail under sub-section (2) of Section 439 of the Code will not come in the way of the High Court in setting aside an order of the Special Court granting bail. It is therefore evident that the provisions of POTA are in clear contradistinction with that of Code of Criminal Procedure where no appeal is provided against an order granting bail. The appeal can lie only against an order of the Special Court and unless there is an order of the Special Court refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail to them. Existence of an order of the Special Court is, therefore, a sine qua non for approaching the High Court." 18. What follows from the aforesaid position of law is that the jurisdiction of a court of an appeal and that of a court exercising original jurisdiction are generically different. A court of original jurisdiction adjudicates upon a cause brought by parties on facts and law in the first instance and renders judgment that may be termed as an original judgment or order. In essence it adjudicates upon the controversy between parties in its nascent form where one party alleges a right which the other denies and the court on evidence led by the parties in support of their respective cases decides the cause in accordance with law leading to a judgment or order in the cause before which there is none. It is a determination in the first instance and that is the essence of exercise of a Court of original jurisdiction. It is a determination in the first instance and that is the essence of exercise of a Court of original jurisdiction. By contrast an appellate jurisdiction has for its raison detre, the existence of a decision by a Court of first instance that is inferior to it and from whose decision one party complains asking it to be set aside or reversed. Thus, the Appellate Court cannot exist in the absence of a court of first instance, cannot decide in the absence of a judgment by that court, a party aggrieved by that judgment being there, and, an appeal being provided for from that judgment and order to it. Going by this fundamental nature of the appellate jurisdiction, a court of appeal cannot write a judgment or order in the same fashion or with the approach of the court of first instance; a court of appeal has to have the approach of a review of what the court of first instance has done, and, in doing so, it has to look at the judgment of the original court with a critical eye. It has to test that judgment with reference to the grounds raised in challenge to it by way of appeal and then decide whether the judgment rendered by the original court is correct or fallacious, in whole or in part. The jurisdiction of the Appellate Court is, therefore, one of review of what the original court has done in the first instance. It is in this sense that the two jurisdictions are generically different. A fortiori, a judgment in appeal cannot read like that of an original court for it would in some way bear reference to the judgment of the court of first instance, to the objections of the appealing party and contentions of the other in support, and, then entering its reasons of approval or disapproval to the judgment of the original court. 19. A reading of the impugned judgment passed by the learned Additional Sessions in appeal that has been extracted above does not as much as spare a hint that he has exercised jurisdiction or discharged duties as a court of appeal. 20. In the considered opinion of this Court, the impugned judgment passed by the Appellate Judge reads like another original judgment after that of the Juvenile Justice Board. 20. In the considered opinion of this Court, the impugned judgment passed by the Appellate Judge reads like another original judgment after that of the Juvenile Justice Board. There is no consideration of the grounds of objections raised in appeal to the Juvenile Justice Board's determination while rejecting the bail plea of the revisionist and then a record of reasons of agreement or disagreement with the judgment of the court of first instance with reference to those grounds. This Court, therefore, holds that the judgment of the Appellate Court impugned here is not at all in conformity with the obligations of a court of appeal under Section 101 of the Act. For the said reason alone, the impugned judgment dated 21.12.2017 passed by the learned Additional Sessions Judge is not sustainable. This Court must, before parting with the matter, place on record that the learned counsel for the revisionist has urged a number of grounds in challenge to both judgments passed by the courts below. All of them are required to be determined. But since this Court finds that the Appellate Court has not discharged its obligations under the law to decide the appeal brought before it as a court of appeal with plenary jurisdiction to undertake a review of the court of first instance, both on facts and law, the numerous grounds urged by the learned counsel for the revisionist on merits of the plea for bail are not being addressed at this stage. All those are to be considered by the Appellate Court. This Court may also add that anything said in this judgment may not be considered by the Appellate Court to which this matter is being remanded as expression of opinion on merits of the bail plea. The Appellate Court would be free to decide on all questions of facts and law canvassed before it in support of bail plea in appeal. 21. In the result, this revision succeeds and is allowed. The Appellate Court would be free to decide on all questions of facts and law canvassed before it in support of bail plea in appeal. 21. In the result, this revision succeeds and is allowed. The impugned order dated 21.12.2017 passed by the learned Additional Sessions Judge Court no.1, Azamgarh in Criminal Appeal No.151 of 2017, Rohit vs. State of U.P., is hereby set aside and the appeal shall stand restored to file of the Appellate Court with a direction that the same shall be decided in accordance with law within a period of one month from the date of receipt of a certified copy of the order of this Court. The revisionist shall appear before the Appellate Court on 24.07.2018. Thereafter, the Appellate Court will proceed in the matter ensuring service of notice upon the complainant/opposite party no.2. 22. It is accordingly ordered.