Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1752 (ALL)

Shani v. State of U. P.

2023-07-21

SAMIT GOPAL

body2023
JUDGMENT : 1. List revised. 2. Heard Sri Vijay Shantam, learned counsel for the applicant and Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record. 3. Sri Ravindra Kumar, learned counsel for the first informant is not present even when the matter is taken in the revised list. 4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Shani, seeking enlargement on bail during trial in connection with Case Crime No. 86 of 2019, under Section 376 I.P.C. and Section 3/4 POCSO Act, 2012, registered at Police Station Banna Devi, District Aligarh. 5. On 07.07.2023 the following order was passed by this Court:- "1. List revised. 2. Heard Shri Vijay Shantam, learned counsel for the applicant and Shri J.P. Tripathi, learned counsel for the State. Shri Ravindra Kumar, learned counsel for the first informant is not present despite the matter being taken up in revised. 3. At the outset, learned counsel for the applicant submits that the applicant had claimed juvenility which has been rejected by the court concerned against which revision has been preferred before this Court which is pending consideration being Criminal Revision No. 121 of 2023 (Juvenile (X) vs. State Of U.P. and others) under the Juvenile Justice (Care and Protection of Children) Act, 2015. 4. It is submitted that since applicant is in jail, present bail application under Section 439 Cr.P.C. be considered as his bail application before the trial court was rejected. 5. Learned counsel for the State has serious objection to it. It is argued that the said proposition cannot be permitted to go on. Once the applicant has chosen to take benefit under the Special Act under juvenile jurisdiction, he has to follow the said path and proceed as per law. He cannot take up the simultaneous path under the Code of Criminal Procedure for release on bail under Section 439 Cr.P.C. He submits that the present application is not maintainable and thus be rejected. 6. Since learned counsel for the first informant is not present, in the interest of justice, matter is adjourned. 7. The matter has interesting question involved in it as learned counsel for the applicant has chosen two paths for the applicant. In these circumstances, learned counsel for the applicant shall give a notice to the counsel for the first informant in writing within a week. 7. The matter has interesting question involved in it as learned counsel for the applicant has chosen two paths for the applicant. In these circumstances, learned counsel for the applicant shall give a notice to the counsel for the first informant in writing within a week. He prays for and is granted ten days' time to prepare the matter. 8. Prayer is allowed. 9. List on 21 July 2023." 6. The facts of the case are that a first information report was lodged on 01.02.2019 by Smt. Manju Devi for offences under Section 376 I.P.C. and Section 3/4 POCSO Act, 2012 against the applicant with the allegation that she lives in a rented house on I.T.I. Road, Aligarh. She has two daughters. The first daughter is aged about 10 years and the second daughter is aged about 08 years. Shani the son of her so called jeth came to the house on 30.01.2019 at about 6.30 pm and forced her to send her daughters to see a fair. She refused sending her daughters with him but Shani did not listen to her and took both her daughters on a motorcycle. He took them to a jungle instead of taking them to fair where he made the younger daughter wait near the bike but took the elder daughter inside a jungle. He then committed rape upon her and then at about 8.30 or 9 pm dropped both girls outside the house and went away. Both her daughters then told about the incident to her so called mami who then told it to her and then she has brought her daughters to the police station. Her report be lodged. 7. The victim was medically examined where although the doctor did not found any injury on her body but found her hymen to be ruptured. The final opinion in the supplementary Medico Legal report as given by the doctor is as follows:- "There is use of sign of force of penetration present. Hymen ruptured fresh injury present on internal examination. According to pathological examination for vaginal smear no spermatozoa seen. FSH Report awaited. So final opinion after FSH report." 8. Some material was sent to the chemical analyst for examination in which in item no. 8 being a pyaijami of the victim human semen was found as reported vide report dated 13.02.2019. 9. According to pathological examination for vaginal smear no spermatozoa seen. FSH Report awaited. So final opinion after FSH report." 8. Some material was sent to the chemical analyst for examination in which in item no. 8 being a pyaijami of the victim human semen was found as reported vide report dated 13.02.2019. 9. The applicant applied for bail before the Additional Sessions Judge, Court No.7, Aligarh through Bail Application No. 1321 of 2019 (Shani vs. State of U.P.) which was rejected vide order dated 26.04.2019. The present bail application has thus been filed on behalf of the applicant before this Court. 10. Counter affidavit dated 20.12.2019 has been filed on behalf of the State to which a rejoinder affidavit dated 22.02.2023 has been filed on behalf of the applicant. 11. A perusal of the said rejoinder affidavit in which paragraph 11 to 16 brings on record certain additional facts and events which have taken place during the pendency of this bail application. The said paragraphs are extracted herein below:- "11. That the applicant with the leave of this Hon’ble Court want to bring additional facts and events which have taken place during the pendency of this bail application. 12. That the applicant was having the original name as Bhetendra Singh and Shani is his nick name/public name but in school record as well as Aadhar card his name was Written as Bhetendra Singh. 13. That the applicant was the minor at the time of incident of age about 17 and half years having the date of birth as 14.8.2001 recorded in Adhaar Card of the accused Shani which was prepared at the initiation of her parents long back shows his original name as Bhetendra Singh, the name of his father as Santosh Kumar. The true copy of the Adhaar Card of the accused Bhetendra alias Shani is being provided as Annexure no. 1 to this affidavit. 14. That the applicant moved the trial court for declaration of the Juvenile by proving his date of birth as recorded in primary school transfer certificate and Aadhar card. The true copy of the Transfer certificate issued by the Principal of the Primary school in which the applicant studied is being provided as Annexure no. 2 to this affidavit. 15. That Ld. The true copy of the Transfer certificate issued by the Principal of the Primary school in which the applicant studied is being provided as Annexure no. 2 to this affidavit. 15. That Ld. Trial court instead for sending the matter of the applicant to the juvenile board, it decided the said application suo motu without any medical examination and ossification test and rejected the claim of the application due to the double name of the applicant being Shani and Bhetendra and double name of his mother Jashoda and Yashoda. The true copy of the Order dated 4.11.2022 passed by AD&SJ (POCSO), Court No.1-, Aligarh in Criminal Misc. Case No. 344 of 2022 rejecting the claim of the applicant to declare his as juvenile is being provided as Annexure no. 3 to this affidavit. 16. That the order dated 4.11.2022 was challenged before this Hon’ble Court in CRIMINAL REVISION No.-121 of 2023 (Juvenile-X Versus State of U.P. and Anr.) which is still pending and in which notices have already been issued by this Hon’ble Court on 25.1.2023 and next date has been fixed for hearing on 14.3.2023. The true copy of the order dated 14.3.2023 passed by this Hon’ble Court in CRIMINAL REVISION No.-121 of 2023 (Juvenile-X Versus State of U.P. and Anr.) filed by the applicant for declaring his as juvenile is being provided as Annexure no. 4 to this affidavit." 12. The said additional facts and events are that the mother of the applicant filed an application before the court of the Additional District & Sessions Judge (POCSO Act), Court No.1, Aligarh as the guardian of the accused Shani @ Bhatendra Singh with the prayer that he be declared as a juvenile. The said application stood rejected vide order dated 04.11.2022. The accused-applicant preferred a revision before this Court numbered as Criminal Revision No. 121 of 2023 (Juvenile (X) vs. State of U.P. and 3 others) which vide order dated 25.01.2023 has been admitted, notice has been issued to the State and the opposite party nos. 2 & 4 therein and they have been called upon to file their response. The original records of enquiry made by the trial court have also been summoned. The said order reads as under:- "Shri Vijay Shantam, learned counsel for the revisionist and Shri Saurabh Srivastava, learned A.G.A. for the State are present. 2 & 4 therein and they have been called upon to file their response. The original records of enquiry made by the trial court have also been summoned. The said order reads as under:- "Shri Vijay Shantam, learned counsel for the revisionist and Shri Saurabh Srivastava, learned A.G.A. for the State are present. Present Criminal Revision has been preferred to set aside the judgment and order dated 4.11.2022 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 1, Aligarh by which the application of the revisionist to declare him as Juvenile was rejected. Learned counsel for the revisionist submits that the impugned order has been passed without considering the facts and circumstances of the case and disbelieving the date of birth certificate in which mother's name was mentioned as Jashoda and Yashoda. Admit. Learned A.G.A. has accepted notice on behalf of opposite party No. 1. Issue notice to opposite party Nos. 2 & 4 through C.J.M. concerned returnable at an early date. Learned A.G.A. as well as other respondents may file counter affidavit within three weeks. Rejoinder affidavit, if any, may be filed within one week thereafter. Call the original documents of inquiry made by the trial court." 13. Learned A.G.A. for the State at the very outset raises a preliminary objection that the present application under Section 439 Cr.P.C. is not maintainable in as much as a remedy for declaring the applicant as a juvenile is being pursued seriously and as such the applicant cannot resort to take advantage of two laws at a time being the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Code of Criminal Procedure, 1973. It is argued that since even in the Juvenile Justice Act there is a provision for grant of bail to an accused and the accused is exploring the remedy of being declared as a juvenile therein he cannot be permitted to invoke the provisions of Cr.P.C. for bail. The present bail application is not maintainable. It is argued that the applicant can either choose to invoke the provisions of the Cr.P.C. or of the Juvenile Justice Act but cannot pursue the remedy in one Act during the pendency of another and take benefit of whichever he can get at an earlier point of time. It is argued that as such the present bail application is not maintainable and be dismissed as such. 14. It is argued that as such the present bail application is not maintainable and be dismissed as such. 14. The issue whether the provisions of Sections 437 and 439 Cr.P.C. can be invoked for grant of bail simultaneously by an accused while he is pursuing his remedy of being declared a juvenile diligently is the issue before this Court. 15. In a case before the Chhattisgarh High Court, a Division bench was faced with a reference made by a learned single Judge. The case of Tejram Nagrachi Juvenile Vs. State of Chhattsigarh Through the Station House Officer : 2019 SCC OnLine Chh 24 was referred to a Division Bench with the following reference: "1. These two bail applications under Section 439 of the Code of Criminal Procedure (for short ‘the Code’) have been placed before us for answering the reference made by the learned Single Judge while deferring with the view taken by the coordinate Bench in the matters of Mohan v. State of CG (2005 Cri L J 3271 : 2005 SCC OnLine Chh 126) followed in Subhash Kumar @ Sonu v. State of Chhattisgarh (MCrC No. 5651/2014, order dated 28.11.2014). While the view in Mohan and Subhash Kumar @ Sonu was that despite the provisions contained in Section 12 of the Juvenile Justice (Care and Protection of the Children) Act, 2000, which is pari materia to the Juvenile Justice (Care and Protection of Children) Act, 2015 (henceforth ‘the Act of 2015’), the bail application under Section 439 of the Code is maintainable before the Sessions Court and the High Court, correctness of the view has been doubted by the learned Single Judge and the following question has been referred for decision by a Bench of Two Judges:— “Whether in view of non obstante clause contained in Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015, provisions under Section 437 and 439 of Cr.P.C. are applicable for being invoked for grant of bail by a child in conflict with law as defined under the Juvenile Justice (Care and Protection of Children) Act, 2015.” 2. In Mohan (Supra), it is held in para-13 that the Act does not take away the power and jurisdiction of the High Court or Court of Session regarding bail as provided under Sections 438 and 439 of the Code. In Mohan (Supra), it is held in para-13 that the Act does not take away the power and jurisdiction of the High Court or Court of Session regarding bail as provided under Sections 438 and 439 of the Code. Similar view was taken by another coordinate Bench in the matter of Subhash Kumar @ Sonu, referred to above, holding thus at para-12:- “12.Thus, taking into consideration the provisions contained in subsection (2) of Section 6 of the Act, 2000, it is quite vivid that power conferred to the Juvenile Justice Board under the Act, 2000 can also be exercised by the High Court and the Court of Session either in appeal or revision or otherwise and the word “otherwise” also includes proceeding under Section 439 Cr.P.C. Thus, I hold that this bail application under Section 439 of the Cr.P.C., by the juvenile on refusal to grant bail by the Court of Session, is maintainable under law and it is held accordingly.” 3. Taking contrary view, the learned Single Judge would conclude thus at para18 of the Reference Order:— “18. Analyzed as above, the Juvenile Justice (Care and Protection of Children) Act, 2015 contains provision for grant of bail which is different from the scheme of grant of bail under Section 437 or 439 of Cr.P.C. as both operate on different considerations, though some of the considerations like consideration that grant of bail is likely to defeat the ends of justice could be relevant in both the cases. Therefore, it is vividly clear that the two schemes for grant of bail, one with regard to post arrest bail found under Section 437 & 439 of Cr.P.C. and other found under Section 12 of the Act of 2015 are inconsistent with each other and there is a great degree of repugnancy between them. While considering application for grant of bail under Section 439 Cr.P.C., mere gravity of allegations by itself may be ground for rejecting the bail but that considerations may not apply while considering grant of bail to a juvenile. While considering application for grant of bail under Section 439 Cr.P.C., mere gravity of allegations by itself may be ground for rejecting the bail but that considerations may not apply while considering grant of bail to a juvenile. Similarly, the Juvenile Justice Board shall have to reject the application for grant of bail of juvenile, if there appears to be reasonable ground for believing that release may expose the juvenile to moral, physical or psychological danger, which may not be relevant while considering application for grant of bail under Section 437 or 439 of Cr.P.C. Therefore, a comparative reading of the scheme for grant post arrest bail under general law and the special law reveals that the two schemes are inconsistent with each other. If this kind of conflict, inconsistency or repugnancy exists, non obstante clause would operate to exclude the applicability of general provisions relating to bail contained under the Code of Criminal Procedure to the extent, it is inconsistent with the scheme of grant of post arrest bail under Section 12 of the Act of 2015. It is equally settled proposition of law that where there is no special provision made in special law and it is silent on a particular aspect, the provisions of general law will hold field and would be applicable." 16. The Division Bench answered the reference as follows: "16. To sum up, we hold that grant of bail to a juvenile is required to be dealt with under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and not under Sections 437 or 439 of the Code of Criminal Procedure. Hence, these applications for grant of bail are not maintainable." 17. The applicant is pursuing his remedy available to him under the Juvenile Justice (Care and Protection of Children) Act, 2015. He cannot simultaneously pursue a remedy under the Code of Criminal Procedure. His attempt to get himself declared as a juvenile although did not find favour with the Court concerned dealing with the application of his mother for declaring him a juvenile but against the same a criminal revision has been filed before the High Court which has been admitted and notices have been issued to the State and the contesting respondents and also the original records of inquiry made by the trial court have been summoned. The applicant cannot be permitted to pursue remedies under two Act simultaneously especially when both the Act have the provision of final result. 18. In view of the facts of the case and the issue as decided on reference by a Division Bench, the present bail application is dismissed as not maintainable.