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2019 DIGILAW 1050 (ALL)

AMAN @ FAUZI v. STATE OF U. P.

2019-04-24

PRADEEP KUMAR SRIVASTAVA

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JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. Heard Shri Jitendra Prasad, Advocate holding brief of Shri Vidit Khanna, learned counsel for the appellant, Ms. Vaibhavi, Advocate holding brief of Ms. Swati Agrawal, learned counsel for the complainant, learned AGA for the State and perused the record. 2. This appeal has been filed by juvenile Aman @ Fauzi against the order dated 07.02.2018 passed by the Additional Sessions Judge/FTC Court no. 1, Special Judge (POCSO Act) in Bail Application No. 150 of 2018 (Juvenile Justice Act, 2012) arising out of case no. 77 of 2017, under section 302 I.P.C., P.S. Sherkot, District - Bijnor whereby the bail of the juvenile has been rejected by the learned court below. 3. The appellant has challenged the impugned order on the ground that the F.I.R. was against unknown persons while passing the order, the learned court below did not consider the report of District Probation Officer nor the psychologist report. There is no direct evidence against the appellant, the impugned order is against the facts and evidence. The juvenile has been falsely implicated and hence he was entitled for bail, therefore, the impugned order dated 07.02.2018 rejecting bail of the juvenile Aman @ Fauzi is liable to be set aside. 4. From perusal of F.I.R. it appears that in respect of an incident dated 06.06.2017 at 4:30 p.m., the F.I.R. was lodged on 07.06.2017 in which no one was named and it was stated in F.I.R. that the mother of the informant had gone to jungle at 4:30 p.m. to collect fodder and she did not return till 7:30 p.m. A rigorous search was made but she could not be traced that day. Again, a rigorous search was made next day in the morning, when the informant side reached the sugarcane field of Virendra his mother was found dead there, somebody had caused injury of sickle in her abdomen. 5. Subsequently in the statement of one witness Mukesh Kumar given before the I.O., it came that he saw the juvenile going from the side of the field of Krishna and he was looking very disturb and when he was asked about the mother of the informant he did not say any thing and ran away from there. When the informant went to his house, he was found missing and his mother told that he was missing from the last 10 days. When the informant went to his house, he was found missing and his mother told that he was missing from the last 10 days. On this basis he became the prime suspect and whole case was investigated in that light and after the post-mortem and all other formalities undertaken by the IO a charge-sheet was filed against the juvenile under section 302 I.P.C. 6. From perusal of the impugned order, it appears that the learned court has remarked the Juvenile Justice Board finding that the age of the juvenile to be more than 16 years transferred the case of the juvenile for trial under section 18(3) of the Juvenile Justice Act, 2015. It has also been mentioned that on the date of the incident, the age of the juvenile was determined to be 16 years and 11 months and in the impugned order the learned court has made observation that the juvenile was healthy physically and mentally fit and he was fully aware of the consequences of the commission of offence, that offence was heinous in nature and also giving the finding that on his being released on bail the ends of justice may be defeated, the bail application of juvenile was rejected. 7. The report of the Probation Officer is on record and there is nothing adverse in the report on the basis of which an adverse inference may be drawn against him and his bail application may be rejected. 8. Learned A.G.A. has vehemently opposed and has contended that the learned trial court has rightly rejected the bail application on the basis of sufficient evidence available on record against the accused-appellant. 9. Section 12 of Juvenile Justice Act, 2015 by the amended Act the criteria for bail under section 12 of the Juvenile Justice Act has not been changed and provision has been made under Section 12 of the Act that when any person accused of a bailable or a non-bailable offence and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution except when 1. if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or 2. if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or 2. that it will expose him to moral, physical or psychological danger, or 3. that his release would defeat the ends of justice. 10. It has been held by the supreme court in Dr. Subramaniam Swamy vs Raju, (2014) 86 AllCriC 637 that a juvenile has to be released on bail unless the court has a reasonable ground to believe that his release will bring him into association of some known criminal, or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice. 11. Section 15 of the Amending Act only provides for transfer of a juvenile to the Children Court for trial as an adult. Where the child has attained the age of 16 years and has been alleged to have committed heinous offence, the JJ Board is required to conduct a preliminary inquiry with regard to his mental and physical capacity to commit offence, ability to understand the consequence of the offence and the circumstances in which the offence was committed considering their physical, psychological and mental status in commission of crime. Section 18(3) of the Act provides that after making the assessment under section 15, JJ Board comes to a conclusion that there is a need for trial of the child as an adult, the Board may pass an order for the transfer of the trial of the case to the Children Court. 12. It is pertinent to mention here that Section 12 of the Juvenile Justice (Care and Protection of Children) Act has not been amended so far as the parameters and yardstick for granting bail to the juvenile-accused is concerned. Therefore, while rejecting the bail application of such juvenile, it cannot be the criteria that the alleged offence is of serious and heinous nature. The order must show that the grant of bail to the juvenile-accused is against his interest as there is possibility of his being associated with known criminals, or there is some short of moral, physical or psychological danger to him or there is likelihood of end of justice being defeated. All these conditions have been incorporated in law in order to ensure justice to the juvenile. 13. All these conditions have been incorporated in law in order to ensure justice to the juvenile. 13. Considering the discussions made above, the Court is of the opinion that the case of prosecution is based on circumstantial evidence and there is no direct evidence and nobody has seen the juvenile committing the offence. 14. The appeal is accordingly allowed. The impugned order dated 07.02.2018 passed by the Additional Sessions Judge/FTC Court no. 1, Special Judge (POCSO Act) in Bail Application No. 150 of 2018 (Juvenile Justice Act, 2012) is set aside. Consequently the bail application of juvenile is allowed. 15. The juvenile, accused-appellant namely Aman @ Fauzi be released on bail and he be given in the custody of his mother guardian namely Baby Devi wife of Gajendra on her filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian mother Baby Devi shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. She will also give an undertaking that on being so released on bail, the accused-appellant namely juvenile Aman @ Fauzi will not however indulge in commission of any crime and she will ensure his presence during trial before the court whenever so required by the court below. 16. With the aforesaid direction the present appeal is disposed of finally. 17. Office is directed to transmit the certified copy of this order to the court concerned for information and its necessary compliance.