Bhola @ Satendra vs State Of U.P. & Another
2014 Latest Caselaw 1677 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 21
 
A.F.R.
 

 
Case :- CRIMINAL REVISION No. - 3154 of 2013
 

 
Revisionist :- Bhola @ Satendra
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Ram Babu Sharma,G.R.S. Pal
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

This revision has been preferred against the impugned judgment and order dated 26.10.2013 passed by Sessions Judge, Budaun in Criminal Appeal No. 186 of 2013 ( Bhola @ Satendra Vs. State of U.P.) arising out of order dated 24.9.2013 passed by Principal Judge, Juvenile Justice Board, Budaun in Case Crime No. 37 of 2013, under Sections 363, 366, 368 and 376 I.P.C., Police Station Civil Lines, Budaun whereby the learned lower appellate court has dismissed the criminal appeal of the revisionist and has confirmed the order of the Juvenile Justice Board, Budaun, refusing the bail to the juvenile/revisionist.

I have heard learned counsel for the revisionist, learned counsel for opposite party no. 2 as well as learned A.G.A. and perused the records.

On 14.1.2013 at 11.30 A.M. an F.I.R. was lodged by opposite party no. 2 at Police Station Civil Lines, Budaun to the effect that on 13.1.2013 in the early morning at about 5.00 A.M., his daughter Km. Mamta aged about 14 years had gone to the fields to attend the call of nature from where she was enticed away by accused persons Bhola, Karru and Sandhya Devi. While the accused persons were taking away his daughter, two persons living in the vicinity Roop Ram and Amreesh had seen them.

On the basis of the above written report, a case was registered against the accused persons. On an application moved by the revisionist to declare him a juvenile offender, his case was sent to Juvenile Justice Board, Budaun where he was declared a juvenile by the order dated 1.8.2013. The revisionist thereafter moved a bail application before Juvenile Justice Board which was rejected vide order dated 24.9.2013 by the Presiding Officer of Juvenile Justice Board. Against the aforesaid order the juvenile (revisionist) preferred a criminal appeal which was also dismissed by the learned Sessions Judge, Budaun vide impugned order dated 26.10.2013.

Aggrieved by both the aforesaid orders, the revisionist has approached this Court by means of instant revision challenging the aforesaid impugned orders on the ground that both the courts below while rejecting the bail application of the revisionist have not considered the fact that during medical examination of the prosecutrix no mark of injury was found on her body and she was found to be habitual of sexual intercourse. There is infordinate delay in recording her statement by the I.O. The prosecutrix has come back to her home on 28.1.2013 but her statement under Section 161 Cr.P.C. has been recorded on 5.2.2013 despite the fact that she was available to the investigating oficer on 28.1.2013. Moreover her statement under Section 164 Cr.P.C. was never recorded and chargesheet has been filed against the revisionist without proper investigation. On the aforesaid grounds learned counsel for the revisionist has assailed the orders passed by both the courts below as illegal and arbitrary. Learned counsel has contended that both the courts below have not exercised their jurisdiction properly. No plausible reason has been assigned by the courts below while refusing to release the revisionist on bail. Both the learned courts below have not considered the provision of Section 12 of Juvenile Justice Act in letter and spirit. It is settled law that gravity of offence will not be considered while deciding the bail application of a juvenile but both the courts below committed error of law while rejecting the bail application of the revisionist. The revisionist is innocent and has been falsely implicated in the present case due to village politics. The revisionist is a juvenile, so he is entitled to be benefited by the provisions of Juvenile Justice Act. Hence, it has been prayed by the learned counsel for the revisionist that the revision be allowed. Impugned order be quashed and the revisionist be released on bail.

Learned A.G.A. has opposed the revision by contending that the courts below have rightly exercised their jurisdiction by refusing the bail to juvenile and there is no need to interfere in the order impugned.

The record shows that the revisionist was declared juvenile on 01.8.2013 by Principal Magistrate, Juvenile Justice Board. There is no dispute regarding the age of the revisionist because till the date of hearing of appeal by learned Sessions Judge no appeal had been filed against the aforesaid order declaring the revisionist to be a juvenile on the date of offence and the aforesaid order declaring the revisionist a juvenile had attained finality. In the aforesaid circumstance, both the courts below should have decided the bail application and the appeal in view of the provisions as provided under Section 12 of Juvenile Justice Act, which is reproduced as under:

"12. Bail of Juvenile:-(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1972 (2 of 1974) 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 institution or fit person but he shall not be so released if there appear 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"

Thus, Section 12 of the Act lays down only three contingencies in which the bail can be refused to juvenile. These are:

i.If his release is likely to bring him into association with any known criminal, or;

ii.Expose him to moral, physical or psychological danger, or;

iii.That his release would defeat the ends of justice.

Both the Impugned orders show that the courts below have opined that if released on bail, the possibility cannot be ruled out that the juvenile would come into association with his family members, who are the co-accused in the same occurrence. The reason given by the Courts below for refusing bail to juvenile does not appear just and proper.

In Prakash Vs. State of Rajasthan, 2006, Cri Law Journal, pg. 1373, it has been observed that "at the time of consideration of bail under Section 12 of the Act, the merit or nature of offence has no relevancy. The language of the Section 12 of the Act, using the word "shall" is mandatory in nature and providing non obstante clause by using the expression "notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force", he be released on bail.........................................", shows the intention of legislature to grant bail to the delinquent juvenile offender with certain exceptions. It is for the prosecution to bring on record such materials while opposing the bail and to make out any of the grounds/exceptions provided in the Section which may persuade the Court not to release the juvenile on bail.

The impugned order dated 26.10.2013 passed by learned lower appellate court shows that learned sessions judge has refused bail to the revisionist on the ground that in case he is released on bail, the possibility of his coming into contact with criminals cannot be ruled out.

The above reason assigned for refusing bail appears vague and unsustainable in wake of the law laid down in the case of Rais Vs. State of U.P., A.C.C. in Criminal Revision No. 860 of 1991 where this Court has held as under:

"The word 'known' has not been used by the parliament in the section without purpose. By use of word 'known' the Parliament requires that the court must know the full particulars of the criminal with which the delinquent is likely to come into association."

In Sanjay Chaurasiya Vs. State of U.P., 2006, Crl. Law Journal, pg. 2957, it has been observed as follows:

"In case of refusal of the bail some reasonable grounds for believing above mentioned exceptions must be brought before the Court concerned by the prosecution."

The Juvenile Justice Act is a beneficial and social-oriented legislation, which needs to be given full effect by all concerned whenever the case of a juvenile comes before them. In absence of any material or evidence or reasonable ground to believe that the delinquent juvenile, if released on bail is likely to come into association with any known criminal or expose him to moral, physical or psychological danger, it cannot be said that his release would defeat the ends of justice.

Keeping in view the aforesaid legislative intent in enacting the Act and considering the welfare of the revisionist with a hope that he may recover himself after being released on bail, by associating himself to the main stream of life, it appears expedient in the interest of justice that his prayer for bail be allowed.

In view of the above discussion, the revision is allowed.

Both the impugned orders passed by Juvenile Justice Board as well as Lower Appellate Court are quashed and the Juvenile Justice Board is directed to release the revisionist on bail on his father furnishing a personal bond of Rs.1,00,000/- with two solvent sureties each in the like amount to the satisfaction of the Juvenile Justice Board in Case Crime No. 37 of 2013, under Sections 363, 366, 368 and 376 I.P.C., Police Station Civil Lines, Budaun, subject to condition that the father of the revisionist shall take care of his education and betterment and will not allow to indulge him in any criminal activity and shall keep constant check on his activities. Both the sureties are directed to be close relatives of the revisionist juvenile.

Order Date :- 13.5.2014

S.B.