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2022 DIGILAW 1543 (ALL)

Ex (Changed Name) v. State of U. P.

2022-09-23

GAJENDRA KUMAR

body2022
JUDGMENT : Gajendra Kumar, J. 1. Heard Sri N.D. Shukla, learned counsel for the revisionist, Sri M.P.S. Gaur, learned AGA for the State as well as learned counsel for the respondent no. 2 and perused the record. 2. This criminal revision under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015, has been filed on behalf of the minor 'X' through his natural guardian/mother Anita w/o Shri Prakash, R/o Village-Merdha, Police Station Khutahan, District Jaunpur with the prayer to admit the minor on bail alongwith the prayer to set aside the order dated 15.12.2021 passed by the Juvenile Justice Board, Jaunpur and order dated 01.02.2022 passed by the Additional District and Sessions Judge/Special Judge, POCSO Act, Jaunpur in Misc. Case No. 102/2021 arising out of Case Crime No. 81 of 2021 under Section 377, 352, 504 IPC and 3/4 POCSO Act, Police Station-Khutahan, District-Jaunpur by which the criminal appeal No.88 of 2021 was rejected. 3. As per the version of the FIR lodged by Sanjeet Singh (informant) father of the victim, it is alleged that on 04.04.2021 at 5.00 P.M. the accused revisionist and co-accused Nitin Tiwari lured his son (victim) aged about 06 years and took him to a secrete place where the accused persons established unnatural relation with the son of the informant. At that point of time, the informant was not present at his home as he had gone to his relatives' house and when he came back to his house, his wife and the victim had apprised him about the incident. Thereafter, when he went to the house of the accused-persons and made complaint, they abused him in filthy-language and also threatened him. On the basis of the said FIR, Case Crime No. 0081/2021 under Sections 377, 352, 504 IPC and 3/4 POCSO Act was registered and investigated upon. During the investigation, after collection of some evidence and recording of statement under Section 161 Cr.P.C. of the witnesses, the victim was medically examined and his statements u/s 161 Cr.P.C. and 164 Cr.P.C. were also recorded. 4. During the proceedings before the Juvenile Justice Board, after giving him benefit of one year on lowerside, though in medical report his age on 12.11.2021 was shown about 19 years, the revisionist was found to be the age of below 18 years on the date of the incident and was declared juvenile vide order dated 18.11.2021. 4. During the proceedings before the Juvenile Justice Board, after giving him benefit of one year on lowerside, though in medical report his age on 12.11.2021 was shown about 19 years, the revisionist was found to be the age of below 18 years on the date of the incident and was declared juvenile vide order dated 18.11.2021. A bail application through his guardian was moved before the Juvenile Justice Board, Jaunpur, but the same was rejected. Thereafter, a criminal appeal No.88/2021 was preferred by the father and guardian of the juvenile and the same was also dismissed vide order dated 01.02.2022. 5. Aggrieved by the above orders, this criminal revision has been preferred to set aside the same and to admit the juvenile on bail. 6. First and foremost contention is that gravity of the offence is not relevant consideration for refusing bail to the juvenile as has been held by a coordinate Benches of this Court in Criminal Revision No.379 of 2009 (Shiv Kumar vs. State of U.P.) decided on 22.12.2009, Criminal Revision No. 4141 of 2017 (Dharmendra vs. State of U.P.) decided on 13.04.2018, Criminal Revision No.1693 of 2021 (Juvenile X vs. State of U.P.) decided on 22.02.2022 and Criminal Revision No.860 of 2022 (X vs. State of U.P.) decided on 21.03,2022 and Criminal Revision No. 1852 of 2015 (Amit vs. State of U.P.) decided on 16.03.2016. 7. In Criminal Revision No. 1852 of 2015 (Amit vs. State of U.P.) decided on 16.03.2016, the Court referred to the earlier judgement in Vijendra Kumar Mali vs. State of U.P., 2003 (1) J.I.C. 103, wherein it was observed that in a number of judgements, it has been categorically held that bail to the juvenile can only be refused if one of the grounds as provided in proviso to Section 12(1) of the Juvenile Justice Act, 2015 exist. So far as the ground of gravity is concerned, it is not covered under the relevant provisions. If the bail application of the juvenile was to be considered under the provisions of Cr.P.C., there would have been absolutely no necessity for the enactment of the aforesaid Act. The Section 12 of the Act contains a non-obstante clause, which indicates that the general provisions of Cr.P.C. shall not apply. Therefore, the gravity or seriousness of the offence should not be taken as an obstacle or hindrance to refuse the bail to delinquent juvenile. 8. The Section 12 of the Act contains a non-obstante clause, which indicates that the general provisions of Cr.P.C. shall not apply. Therefore, the gravity or seriousness of the offence should not be taken as an obstacle or hindrance to refuse the bail to delinquent juvenile. 8. It is contended that there existed no material to justify rejection of bail on the grounds envisaged in Section 12 of the Act. In view of the above provisions, the 'child in conflict with law', who has been in custody for quite some time deserves to be released on bail otherwise, the purpose of provisions of Section 12 of the Juvenile Justice Act shall stand defeated. It is also contended that care of the juvenile in a child care institution cannot be preferred over his care in his biological family. 9. Learned AGA and learned counsel for the respondent no. 2 have opposed the prayer for bail. 10. The Court is conscious of the fact in case of Om Prakash vs. State of Rajasthan and another; (2012) 5 SCC 201 , the Hon'ble Apex Court, wherein the Court has observed that the "Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of juvenile as it was felt that child become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. It was further observed that in cases when an accused is involved in grave and serious offence which he committed in a well planned manner reflecting his maturity of mind the court ought to be more careful. Thus, the Hon'ble Apex Court has clearly brought in focus the nature of crime, conduct of an accused as reflected in the method employed in the commission of crime as a relevant consideration while considering the matters of juvenile." 11. It may be noted that the Hon'ble Apex Court gave this view in the background of the facts that age of the juvenile as determined by the courts below was not free from doubts. In the circumstances, the Court observed that where accused commits grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording his age, is not acceptable. In the circumstances, the Court observed that where accused commits grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording his age, is not acceptable. It is also observed that the shelter of the principle of benevolent legislation of the Juvenile Justice Act is meant for minors, who are innocent law breakers. Nevertheless, in my view, the nature of crime the juvenile was found involved in, is again at the center stage. 12. In Mangesh Rajbhar vs. State of U.P. and Another; 2018 (2) ACR 1941 , a coordinate Bench of this Court noted down very important observations which I choose to refer avidly : "13. No doubt, the Juvenile Justice Act is a beneficial legislation intended for reform of the juvenile/child in conflict with the law, but the law also demands that justice should be done not only to the accused, but also to the accuser." 25. It is not that this aspect of the gravity of the offence has been considered irrelevant to the issue of grant or refusal of bail to a minor in the past and before the present Act of 2015 came into force. In a decision of this Court under the Juvenile Justice Act, 2000 where the interest of the society were placed seemingly not on a level of playing field with the juvenile, this Court in construing the provisions of Section 12 in that Act that were pari materia to Section 12 of the Act in the matter of grant of bail to a minor held in the case of Monu @ Moni @ Rahul @ Rohit v. State of U.P., 2011 (74) ACC 353 in paragraph Nos. 14 and 15 of the report as under: "14. Aforesaid section no where ordains that bail to a juvenile is a must in all cases as it can be denied for the reasons"......if there appears 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." 15. In the light of above statutory provision bail prayer of the juvenile revisionist has to be considered on the surrounding facts and circumstances. In the light of above statutory provision bail prayer of the juvenile revisionist has to be considered on the surrounding facts and circumstances. Merely by declaration of being a juvenile does not entitle a juvenile in conflict with law to be released on bail as a matter of right. The Act has a solemn purpose to achieve betterment of juvenile offenders but it is not a shelter home for those juvenile offenders who have got criminal proclivities and a criminal psychology. It has a reformative approach but does not completely shun retributive theory. Legislature has preserved larger interest of society even in cases of bail to a juvenile. The Act seeks to achieve moral physical and psychological betterment of juvenile offender and therefore if, it is found that the ends of justice will be defeated or that goal desired by the legislature can be achieved by detaining a juvenile offender in a juvenile home, bail can be denied to him. This is perceptible from phraseology of section 12 itself. Legislature in its wisdom has therefore carved out exceptions to the rule of bail to a juvenile." 13. I am in respectful agreement with the above observations. Ordinarily, the merits of the matter may not be important where the Courts are inclined to give benefit of bail as envisaged in Section 12 of the Juvenile Justice Act, I am of the firm view that nature of crime including other merits of the matter may assume ample significance when the Court has to form an opinion about the ends of justice. It may be noted that the phrase 'ends of justice', cannot stand in a vacuum. The manner of commission of the crime, the nature thereof cannot be ignored while striking a balance between the demands of justice of either of the sides. Hence, it cannot be said that the nature of the crime, the manner or methodology applied, the extent of involvement and evidence available are of no relevance when judging the entitlement of a juveniles to bail in cases where heinous crimes are committed. The ends of justice is undoubtedly a meaningful phrase with multidimensional implications. The Courts are under obligation to address the concerns of both the sides and strike a delicate balance between the competing and often conflicting the demands of justice. The ends of justice is undoubtedly a meaningful phrase with multidimensional implications. The Courts are under obligation to address the concerns of both the sides and strike a delicate balance between the competing and often conflicting the demands of justice. When viewing the matters of bail from this particular angle of deciphering the ends of justice not only the nature of crime, but the manner of commission thereof, methodology applied, the mental state, the extent of involvement, the evidence available shall be the factors to reckon with. The phrase 'ends of justice' may bring in within its interpretation such factors which may otherwise seem not so material or may be seemingly extraneous, irrelevant or unimportant at first glance for the purpose of applicability of last part of the proviso to Section 12(1) of the Juvenile Justice Act. 14. Following facts cannot go in oblivion that alleged incident happened has been done intentionally with a conspiracy by the accused revisionist, which is evident in the statements of the victim recorded under Section 161 Cr.P.C. as well as 164 Cr.P.C. wherein, victim has specifically stated that accused-revisionist has made unnatural sex with him. 15. In nutshell, it can be inferred that the juvenile was found to have complicity in this frightful crime. The juvenile was found to be the age of below 18 years on the date of the occurrence, after giving him benefit of one year on lower side, though in medical report his age on 12.11.2021 was shown about 19 years. It was a borderline case where the accused was reaching the age of adulthood. The manner, in which, the crime was committed and the nature thereof impels me to draw a conclusion that in case the juvenile is released on bail, he shall fall of in the same hands and environs which most probably contributed towards his criminal bent of mind. 16. This Court has considered the rival submissions and perused the record. It may be true that the Courts below have not undertaken a careful exercise by evaluating the social investigation report while forming their opinion on the first of the two dis-entitling parameters under the proviso to Section 12(1) of the Act, that is to say, the prospect of release bringing the child in conflict with into association with some known criminal or exposing him to moral, physical or psychological danger. But, that does not end the matter. It is a case where the revisionist, though below the age of 18 years, has ravished a very young victim, who is just six years old. About the factum of the incident, there is reasonable assurance at this stage, short of the charge being tested at the trial. The prosecution is consistent in the FIR lodged by the victim's father, the statement of the victim and his father, recorded by the police, under Section 161 Cr.P.C. and the statement of the prosecutrix, under Section 164 Cr.P.C. before the Magistrate. 17. In view of the above, these remarks may not be understood as the Court's intendment to express any opinion on the merits of the charge. All that this Court wishes to say is that for the present, the Court seized as it is of the bail matter, there is a reasonable assurance about the charge being prima facie credible. It is true that the merits of the case or prima facie tenability of the charge, like an adult, is not entirely decisive to the fate of the bail plea. At the same time, it is not altogether irrelevant. The gravity of the charge, manner of its perpetration, circumstances in which the offence is alleged to have been committed, its immediate and not so immediate impact on the society at large and the locality, in particular, besides its impact on the aggrieved family, are all matters to be taken into reckoning while judging a juvenile's bail plea. All these factors are relevant under the last dis-entitling clause postulated under the proviso to Section 12(1) of the Act, which says that release of the juvenile would ''defeat the ends of justice'. After all ''defeat the ends of justice' is not a word of art. It has been thoughtfully introduced by the legislature to arm the Court with a right to overcome an otherwise absolute right to bail, where in the totality of the circumstances, release on bail would adversely impact the law and order and the equilibrium of an ordered society. 18. The case in hand shows that the revisionist by his action, if true, has put the society and its surroundings on alarm. 18. The case in hand shows that the revisionist by his action, if true, has put the society and its surroundings on alarm. His actions have led to a situation, where prima facie no child of tender years, and more than that the parents or the guardians of a young child, would feel safe during their daily routine, when there is nothing otherwise to call extra caution. In the opinion of this Court, it is a case where release of the child in conflict with law would lead to ends of justice being defeated. 19. The learned appellate Court and the Board have given concurrent view and have found him not at all entitled to bail. 20. For all the reasons recorded above and considering the above-mentioned case laws, I am of the considered opinion that it is not a fit case to grant bail to the present revisionist. 21. The revision is, accordingly, dismissed. 22. Copy of the order be certified to the Court concerned. 23. The Court/concerned Board is directed to expedite the hearing and conclude the same at the earliest without getting influenced by any of the observations made in this order.