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2022 DIGILAW 50 (JK)

Irfan Ahmed v. Union Territory of J&K

2022-02-18

MOHAN LAL

body2022
JUDGMENT : Mohan Lal, J. Instant criminal revision petition under Section 397 Cr.P.C r/w Section 102 Juvenile Justice (Care and Protection of Children Act), 2015 has been preferred to challenge the impugned orders dated 13.12.2021 rendered by the learned Principal Sessions Judge, Rajouri in file No. 275/appeal along with order dated 20.11.2021 passed by the Juvenile Justice Board, Rajouri in file No. 67/miscellaneous in case titled Irfan Ahmed vs UT of J&K through SHO Police Station Thanamandi, District Rajouri, whereby bail to the petitioner/juvenile was declined and the same was affirmed by the court of Principal Sessions Judge, Rajouri. Prayer has been made for setting aside the aforesaid impugned orders and release of petitioner/juvenile on bail. Prayer has been made for setting aside the aforesaid impugned orders and release of petitioner/juvenile on bail. It is averred, that the petitioner is a citizen of India and permanent resident of Union Territory of J&K, seeks protection of his fundamental rights guaranteed under Constitution of India including right to liberty and freedom; the petitioner is a juvenile of 14 years and the student of 10th class having date of birth 01.01.2007, has been implicated in false FIR No. 196/2021 on 18.09.2021 for commission of offence under Section 376 IPC and 6 POCSO Act for the allegations that he committed alleged commission of offence of rape upon victim/minor aged 11 years; that he got arrested on 22.10.2021 and for the last almost four (4) months, he is lodged in Juvenile Observation Home R. S. Pura, Jammu; he is just 14 years of age has been sent to Juvenile Observation Home, R.S. Pura, will be exposed to the company of many hardcore juvenile criminals which will be dangerous for his future life and same will defeat the ends of justice; he has no efficacious/alternate remedy except to knock the doors of this Court as he has not filed any other petition before this court or any court of the Country; the impugned orders clearly show that there is no specific allegation against him leading to filing of FIR and the same allegation have not been considered by the appellate court while passing the order; the orders impugned are bad in the eyes of law and deserve to be set-aside as none of the orders discloses that neither the prosecution nor the Board as discussed the fact as when and on which date the prosecutrix has been raped, the age, fact and date should have been discussed; there is no material on record to prove that there is likelihood of minor applicant to come in association with any criminal or expose him to such moral, physical or psychological danger and his release would defeat the ends of justice; Section 12 of the Juvenile Justice Act 2015 dealing with the provisions of bail of a juvenile clearly shows that seriousness or gravity of the offence is not a consideration and bail has to be granted to the juvenile and refused only in three exceptions, viz, there must be some record to show that accused is a member of criminal gang or any report submitted by social investigation agency showing the conduct of the family not conductive to keep the minor in a proper way, but there is no such material on record to show anything contrary and on this ground the impugned order deserves to be set aside; the petitioner needs to be granted bail. 2. Respondent has opposed bail on the grounds, that on the basis of complaint filed by father of the victim on 18.09.2021 under Section 376 IPC r/w Section 6 of POCSO Act FIR has been registered against accused who has committed rape upon minor prosecutrix/victim; accused is involved in heinous crime needs no sympathy; the victim is minor girl and pregnant for the more than five months; the bail application of the petitioner has been rightly rejected by the Juvenile Justice Board Rajouri, and the appellate Court of Principal Sessions Judge, Rajouri has rightly observed that petitioner does not deserves any concession as there is apprehension that petitioner may tamper with the prosecution evidence and may try to win over the witnesses. 3. Learned counsel for the petitioner, while seeking release of the petitioner on bail, has vehemently articulated arguments, that the petitioner and victim belong to the same village and are relatives, there is no evidence on record to establish that there is likelihood of the juvenile to come in association with any known criminal or his release of bail would expose him to moral, physical or psychological danger; it is argued, that Section 12 of the Juvenile Justice Act deals with bail to juvenile and categorically demonstrates that a juvenile shall be released on bail irrespective of the gravity of offence and he shall not be released if there appears reasonable ground for his release or brings him association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice, the orders of Juvenile Justice Board dated 20.11.2021 and that of Principal Sessions Judge Rajouri dated 13.12.2021 do not reveal that how the Juvenile Justice Board and the learned Principal Sessions Judge Rajouri have arrived at conclusion without any material on record to reasonably believe that release of petitioner/juvenile would expose him to come in association with known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice. It is argued that the juvenile is of 14 years of age and the victim is also 11 years of age, keeping of the juvenile in Observation Home for indefinite period would infringed his right to life and personal liberty, and moreso even in the event of conviction the juvenile cannot be sentenced to life imprisonment or death penalty, but the maximum punishment only upto three years, the petitioner/juvenile has already suffered imprisonment of about four months and his keeping in the Observation Home would amount to inflicting pre-trial punishment to him which is against the fundamental principle of criminal jurisprudence as the petitioner/juvenile is presumed to be innocent till guilty is proved against him. To support his arguments, learned senior counsel for the petitioner has placed reliance upon the decisions viz (i) in case titled Ravi Singh Vs State of Punjab, decided by Punjab-Haryana High Court on 06.08.2021, (ii) in Criminal Revision Nos. 660 of 2021 and 725 of 2021, decided by the Chhattisgarh High Court on 11.01.2022, (iii) in Criminal Revision No. 1639 of 2017 case titled Km. Fatma (Minor) vs. State of U.P and another, decided by Allahabad High Court on 02.06.2017, (iv) in Criminal Revision No. 3005 of 2016, decided by Punjab-Haryana High Court on 04.10.2016, (v) in Criminal Revision No. 1398 of 2015, decided by Allahabad High Court on 22.01.2016, and (vii) in Criminal Revision No. 959 of 2017, decided by Patna High Court on 17.10.2017. 4. Per-contra, learned GA has strongly opposed the grant of bail by portraying arguments, that 11 years old minor girl has been the victim of crime as petitioner/accused developed physical relations with her and she become pregnant and is having fetus of 22 weeks; it is argued that the offence indicted against petitioner/accused is grave and serious as the victim/prosecutrix has been left in the society having a stigma upon her of the allegations of rape, the Juvenile Justice Board has passed a reasoned order declining bail of the petitioner and the said order has been affirmed by the court of learned Principal Sessions Judge Rajouri also by a reasoned order, which do not call for any interference. 5. Heard and considered. 6. I have heard learned senior counsel for the petitioner and learned GA for respondent. I have perused the impugned orders as well as the allegations leveled against the petitioner/juvenile in FIR. 5. Heard and considered. 6. I have heard learned senior counsel for the petitioner and learned GA for respondent. I have perused the impugned orders as well as the allegations leveled against the petitioner/juvenile in FIR. The allegations as emerged from the Xerox record submitted by the appellate court of learned Principal Sessions Judge Rajouri along with contents of FIR reveal that on 18.09.2021 FIR No. 196/2021 under Section 376 IPC and Section 6 of the POCSO Act was lodged against the petitioner for the allegation that he and the prosecutrix are relatives, the prosecutrix is reading in 7th class and is of 11 years of age, the petitioner/juvenile called the prosecutrix in his house caught hold of her forcibly when none was present in the house and committed rape upon her, and later-on threatened the prosecutrix. The report of I.O which is appended with the record shows that the victim/girl was medically checked up in Government Medical College Rajouri and was found having 22 weeks’ fetus (pregnancy) as per her ultrasound and was handed over to her parents, but the statement of victim/girl recorded under Section 164 Cr.P.C reveals that both petitioner and victim was in love affair, the boy promised to marry and sexual intercourse was committed with the consent of both. However, the petitioner/juvenile presently is in Juvenile Observation Home, R.S. Pura, Jammu from 23.10.2021 onwards. 7. Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (here-in-after referred to as ‘J.J. Act’) deals with the provisions of bail to the juvenile. For the sake of clarity Section 12 is reproduced as under: “12. Bail to a person who is apparently a child alleged to be in conflict with law. 7. Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (here-in-after referred to as ‘J.J. Act’) deals with the provisions of bail to the juvenile. For the sake of clarity Section 12 is reproduced as under: “12. Bail to a person who is apparently a child alleged to be in conflict with law. (1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 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 person: Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the persons release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision (emphasis supplied) (2) When such person having been apprehended is not released on bail under sub-section (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board. (3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order. (4) When a child in conflict with law is unable to fulfill the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail.” 8. (4) When a child in conflict with law is unable to fulfill the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail.” 8. Bare reading of the provisions of Section 12 of the J. J. Act clearly demonstrates that the intention of the legislature is to grant bail to the juvenile irrespective of the nature or gravity of the offence alleged to have been committed by him, and bail can be declined to the juvenile only in three circumstances viz; (i) if there appears reasonable grounds for believing that the release of juvenile will bring him into association with known criminal, (ii) or expose the said juvenile to moral, physical or psychological danger, (iii) or his release would defeat the ends of justice. The aforesaid provisions clearly demonstrate that a juvenile can be denied the concession of bail, if the above three contingencies specified under Section 12 (1) of the J. J. Act is available. The impugned order dated 13.12.2021 rendered by the learned Principal Sessions Judge, Rajouri clearly reveals that the Juvenile Justice Board vide its order dated 20.11.2021 has declined bail to the petitioner/juvenile only on the ground that the juvenile has threatened the minor prosecutrix to eliminate her and the prosecutrix has four months pregnancy and the release of juvenile would defeat the ends of justice. The court of Principal Sessions Judge, Rajouri vide its order dated 13.12.2021 as also while affirming the order of Juvenile Justice Board dated 20.11.2021 observed that the statement of the prosecutrix has not been recorded by the juvenile court. The term ‘ends of justice’ is not defined in the Juvenile Justice Act and therefore, has to be interpreted keeping in view the statement and object of the statute and the legislative intent behind it. There is no doubt that the Juvenile Justice Act is a beneficial legislation, and it is settled position of law that gravity or seriousness of the offence would not be a ground to decline concession of bail to the juvenile. There is no doubt that the Juvenile Justice Act is a beneficial legislation, and it is settled position of law that gravity or seriousness of the offence would not be a ground to decline concession of bail to the juvenile. The respondent has not placed on record or even the counsel for the respondent has not pointed out any material which can show that there are reasonable grounds for believing that the petitioner/juvenile is likely to come into the association of known criminal if released on bail, or his release will expose him to moral, physical or psychological danger or his release would defeat the ends of justice. The judgments relied upon by the learned counsel for the petitioner clearly demonstrate that in terms of Section 12 (1) of the Act a juvenile shall be released on bail irrespective of the gravity of offence. 9. (i) In Ravi Singh Vs State of Punjab in CRR No. 43 of 2021, decided by Punjab-Haryana High Court on 06.08.2021, relied by learned counsel for petitioner, a juvenile was granted bail for commission of offence of rape upon the victim age 5 years, (ii) in Criminal Revision Nos. 660 of 2021 and 725 of 2021, decided by the Chhattisgarh High Court on 11.01.2022 relied by learned counsel for petitioner, a juvenile age 15 years at the time of incident was granted bail indicted for commission of offence punishable under Section 302/147/148/149 IPC and Section 25 and 27 of Arms Act, (iii) In Km. 660 of 2021 and 725 of 2021, decided by the Chhattisgarh High Court on 11.01.2022 relied by learned counsel for petitioner, a juvenile age 15 years at the time of incident was granted bail indicted for commission of offence punishable under Section 302/147/148/149 IPC and Section 25 and 27 of Arms Act, (iii) In Km. Fatma (minor) Vs State of U.P and another in Criminal Revision No. 1639 of 2017, decided by Allahabad High Court on 02.06.2017 relied by learned counsel for petitioner, the bail was granted to juvenile indicted for commission of offences under Sections 302/120-B/34 IPC, (iv) in Lovepreet Singh @ Lovedeep Singh vs State of Punjab in Criminal Revision No. 3005 of 2016, decided by Punjab-Haryana High Court on 04.10.2016 relied by learned counsel for the petitioner, a juvenile was also granted bail indicted for commission of offence under Sections 307/323/506/148/149 IPC and Section 25 of the Arms Act, (v) in Amit Yadav alias Monu alias Bebo vs state of U.P and another in Criminal Revision No. 1398 of 2015, decided by Allahabad High Court on 22.01.2016 relied by learned counsel for the petitioner, a juvenile involved in offences under Sections 395/997/412/307 IPC was granted bail, and (vii) in Krishna Sah vs State of Bihar in Criminal Revision No. 959 of 2017, decided by Patna High Court on 17.10.2017 relied by learned counsel for the petitioner, a juvenile involved in offences registered under Sections 302/201/120-B IPC was granted bail. 10. In view of the plethora of judgments (supra) relied by the learned counsel for the petitioner/juvenile, it has been constantly held, that the gravity of offence is not a ground to deny bail to the juvenile unless the conduct of accused is such indicates that no likelihood after being released on bail the juvenile will indulge in more crime and if there are no eminent chances of his repeated crime, the bail to juvenile should not be ordinarily refused. The record submitted by the court of learned Principal Sessions Judge, Rajouri reveals that the I.O during the course of investigation has recorded the statement of the victim/girl under Section 164 Cr.P.C wherein she has stated that she was in love with boy (petitioner) who had promised to marry her and sexual intercourse between them was with the consent of both. It is settled position of law that consent of minor is not consent in the eyes of law and sexual intercourse committed with the minor even with her consent amounts to offence of rape. Be that as it may, the record reveals that there was no forcibly sexual intercourse with the victim/girl. 11. In view of the totality of the facts and circumstances of the case and the position of law as discussed above, I am of the considered view that no purpose will be served in keeping the petitioner (juvenile) in custody in Juvenile Observation Home, R.S. Pura, Jammu. The impugned orders are not sustainable in the eyes of law and as such, are liable to be set aside. Accordingly, the instant revision petition succeeds and the same is allowed. The impugned orders of learned Principal Sessions Judge, Rajouri dated 13.12.2021 and that of Juvenile Justice Board dated 20.11.2021 are set aside. The petitioner is directed to be released on bail subject to his furnishing surety bond and personal bond in the sum of Rs. 50,000/- each through his natural guardian or near relative to the satisfaction of the learned Principal Magistrate, Juvenile Justice Board, Rajuouri subject to the following conditions:- (i) the natural guardian of the petitioner/juvenile will furnish an undertaking before the Principal Magistrate, Juvenile Justice Board Rajouri, that in case the petitioner/juvenile is released on bail and given in his custody he will work for improvement of the petitioner/juvenile and will not create any situation which will bring the petitioner/juvenile into association with any known criminal or expose him to moral, physical and psychological danger or any situation when the petitioner/juvenile may repeat the offence in question and his release would defeat the ends of justice. (ii) that the petitioner will comply with all the terms and conditions of the bond executed by him. (iii) that the petitioner will cooperate in the investigation/trial, as the case may be. (iv) that the petitioner will not enter into the locality of the complainant/victim and will also not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court. (v) that the petitioner shall not commit an offence similar to the offence of which he is accused.