Faheem vs State Of U.P. And Another
2015 Latest Caselaw 2884 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 28
 
Case :- CRIMINAL REVISION No. - 1220 of 2015
 
Revisionist :- Faheem
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Sunil Kumar Singh,Vichitra Kumar Chandel
 
Counsel for Opposite Party :- Govt.Advocate,Shuzauddin
 

 
Hon'ble Mrs. Ranjana Pandya,J.

Heard counsel for the revisionist and the learned A.G.A. for the State. Opposite party no. 2 was served sufficiently but he did not appear before this Court.

On oral request of the learned counsel for the revisionist, he is permitted to amend the section only in the memo of the revision.

Challenge in this revision is to the order dated 21.3.2015 passed by the District & Sessions Judge, J.P. Nagar in Criminal Appeal No. 12 of 2015 (Faheem (Minor) Vs. State of U.P. ) in which the appellate court has dismissed the appeal of the revisionist preferred against the order dated 6.2.2015 passed by Juvenile Justice Board, J.P. Nagar in Bail Application No. 24 of 2014 (Faheem Vs. State of U.P.) in Case Crime No. 429 of 2014, under Section 376 and 506 I.P.C. and 3/4 POSCO Act, P.S. Amroha Dehat, District- J.P. Nagar, by which the learned lower court rejected the bail application of the revisionist.

As per the allegations of the F.I.R. is that an F.I.R. was lodged by Amna Khatoon on 7.7.2014 at Police Station-Amroha Dehat stating that on 6.7.2014, she had gone to Kamalpur to her relatives house. At her house her daughter Gulishta, her daughter-in-law and small kids were present. On 7.7.2014 at 6 p.m. when she returned home, her daughter aged about 16 years told her that on 6.7.2014 Faheem dragged her into the guava orchard and raped her and threatened her not to tell anybody.

Castigating the impugned Judgment, learned counsel for the revisionist has argued that there is absolutely no evidence on record to show that if the juvenile revisionist is released on bail then his release is likely to bring him into association with any known criminal or that his release would defeat the ends of justice. He has further submitted that gravity of the offence committed cannot be a ground to decline bail to a person who has been declared juvenile and which order has attained finality. Counsel for the revisionist has further contended that the learned courts below in quite cursory manner have declined bail to the revisionist which orders are not based upon definite facts but are based on surmises and conjectures.

Per contra, learned A.G.A. has contended that considering the nature of the offence, the revision is liable to be dismissed. It has also been contended that the order passed by the Juvenile Justice Board in declining the bail to the petitioner and also the Judgment passed by the appellate Court upholding the order of the Principal Judge, Juvenile Justice Board are based on materials on record.

The Act, namely, Juvenile Justice Court and Protection of Children Act, 2000 being a beneficiary and social reform oriented legislation should be given full effect by all concerned whenever matters relating to Juvenile comes for consideration before them. It is not disputed that the bail application of the delinquent juvenile is to be considered under the provisions contained in Section 12 of the Juvenile Justice Act which is 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, 1973 (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.

(2) When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can brought before a Board.

(3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."

The above provisions clearly show that once a person is held to be a juvenile in conflict with law then Section 12 of the Act would govern the question of grant of bail and the custody of juvenile, and it will not be governed by the provisions of the Code of Criminal Procedure. It is noteworthy that the gravity or seriousness of the offence, divorced from the above exceptional reasons has not been taken as an obstacle or hindrance by the legislature to refuse bail to the delinquent. No straight jacket formula of inflexible nature can be laid down as it would depend on the facts and circumstances of each case. Words 'ends of justice' should be confined to those facts which show that grant of bail itself is likely to result in injustice. For example, if there is likelihood of the juvenile delinquent to whom the bail is granted interfering with the courts of justice or he may pressurize the prosecution witnesses; he is likely to abscond from the jurisdiction of the court; then the burden to show that if the delinquent juvenile is released on bail, there appears a reasonable ground for believing that the release is likely to bring him into association with any known criminal or expose to him moral, physical or psychological danger or that his release would defeat the ends of justice is on the prosecution. In the instant case no reason has been assigned by the appellate court in the impugned order to arrive at a conclusion that if the petitioner is released on bail, it will defeat the ends of justice. The appellate court has only written the arguments of both the parties and has opined that the order of the Juvenile Justice Board is correct without assigning any reason for arriving at this conclusion. Had cogent reasons for reaching the above conclusions been given in the impugned Judgment, then it would have helped this Court in evaluating them on the touchstone of probabilities.

A perusal of the District Probation Officer goes to show that nothing has been written against the revisionist in the report dated 16.1.2015 and thus the bail application of the juvenile could be rejected only on the exigencies or the grounds mentioned above. Similar view has been expressed in Amit Kumar Vs. State of U.P. reported in 2010 (71) ACC 209 (Allahabad) and Navrang (Minor) Vs. State of U.P., 2010 (71) ACC 255 (Allahabad) in which cases also the juvenile offenders were granted bail.

Keeping in view the aforementioned legal position, I find that in this case no such condition exists on the basis of which the application of the juvenile could be dismissed. Therefore, the revision deserves to be allowed. The order dated 1.11.2014 passed by the appellate court and the order dated 6.9.2014 passed by the Principal Magistrate, Juvenile Justice Board are not sustainable in law and both the courts below have committed jurisdictional error and illegality in passing the order.

The only fact which has been written by the Probation Officer is that in case the delinquent juvenile is released some mishappenings can occur with the juvenile, since the family members of the victim have become aggressive due to this incident. But I think that this could not be a ground to refuse bail.

Consequently, the revision is allowed. The aforesaid impugned orders are set aside. It is directed that the revisionist shall be released on bail on executing the personal bond by his natural guardian with two solvent sureties each in the like amount to the satisfaction of the Principal Magistrate, Juvenile Justice Board, J.P. Nagar with the stipulation that on all subsequent dates of hearing, he shall produce the delinquent juvenile before the said Board during the pendency of the matter and his guardian shall keep proper control and look after the juvenile and keep away him from the company of known criminals. In case of default, the Board would be competent to cancel the bail of the applicant after giving an opportunity to appear before him.

Order Date :- 5.10.2015

Anurag/-