Kana Urf Devraj Singh vs The State Of U.P. & Another
2018 Latest Caselaw 1818 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 53							  	 A.F.R.
 

 
Case :- CRIMINAL REVISION No. - 3205 of 2017
 

 
Revisionist :- Kana Urf Devraj Singh
 
Opposite Party :- The State Of U.P. & Another
 
Counsel for Revisionist :- Narendra Kumar Yadav,Nishi Mehrotra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble J.J. Munir,J.

1. Failure in Criminal Appeal no.150 of 2017 before the learned Sessions Judge, Aligarh under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter referred to as the ''Act') carried from an order of the Juvenile Justice Board, Aligarh, dated 28.06.2017 made in relation to the Case Crime no.89 of 2017, State vs. Kana alias Devraj Singh, under Sections 376D IPC and Section 5/6 of the POCSO Act, Police Station Madrak, District Aligarh, rejecting a bail plea by Kana alias Devraj Singh, a child in conflict with law, has brought him to this Court. The appeal before the Sessions Judge was dismissed by an order dated 21.08.2017, whereafter the present revision was filed on 4th October, 2017 by the revisionist who is confined in the Children Reformatory Home since 19.05.2017 - a period of about a year and two months by now.

2. The prosecution case as set out in the First Information Report giving rise to the present crime is to the effect that the informant Nepal Singh is a native of Village Nagla Puranmal, Police Station Madrak (District Aligarh); that on 08.05.2017 at about 7.30 in the morning his daughter aged about 14 years, and, hereinafter referred to as the 'prosecutrix', left home to answer the call of nature heading out to the fields for the purpose; that thereabout one Rahul son of Virendra Dhimar and Kana son of Kali Charan Jatav (revisionist), both natives of Village Nagla Puranmal pounced upon the prosecutrix, muffled her voice by a grip of their palm to her mouth and each of them, one after the other, ravished the prosecutrix; that on return her home, the prosecutrix shared what had befallen with the informant and his wife, her mother; that ever since the occurrence, natives of the Village had been pestering the informant to amicably settle the matter; and, that it is on this count, he did not come to report the matter earlier.

3. The First Information Report was registered on 10.05.2017 at 17:00 hours vide GD Entry no.27 as Case Crime no.0089 of 2017, under Section 376D IPC, Section 5/6 of the POCSO Act and Section 3(2)(5) of the SC/ST (Prevention of Atrocities) Act, 1989 at Police Station Madrak, District Aligarh. The revisionist moved the Juvenile Justice Board seeking to be declared a juvenile, and, after consideration of the plea, the Board vide their order dated 09.06.2017 declared the revisionist a juvenile/ a child in conflict with law.

4. An application for bail was thereupon made by the revisionist to the Board, that was registered as Misc. Case no.46 of 2017 in the case crime. The said application on being heard, was rejected by the Board vide order dated 28.06.2017. The revisionist assailed that order before the Sessions Judge through Criminal Appeal no.150 of 2017 that has since been dismissed by the learned Judge by her order dated 21.08.2017, impugned in the present revision.

5. The Juvenile Justice Board has largely referred to some remarks in the Social Investigation Report that the juvenile is mentally capable to discern the difference between right and wrong; he has the association of some bad elements, on account of which juvenile delinquency has developed. There is somewhere lack of effective control of the parents. Based on the aforesaid handpicked remarks in the Social Investigation Report, the Board have not done much to assess the revisionist's bail plea and doing a little more than shallow recitation and reiteration of the said remarks in the Social Investigation Report besides paraphrasing the three disentitling grounds under the proviso to Section 12(1) of the Act have proceeded to reject the revisionist's bail plea.

6. The learned Sessions Judge has proceeded to test the bail plea of the revisionist on the touchstone of the three disentitling grounds embodied in Section 12(1) of the Act and has opined that on a perusal of the record it is clear that the parents of the juvenile have no command or control over him. She has further recorded that there is no other relative in the family to keep that check and control over the revisionist, that is required for the betterment of moral and psychological qualities. Upon the said findings the learned Judge has concluded that if the revisionist were released on bail not only would it lead to ends of justice being defeated, it would push him further into the dark abyss of criminality. The learned Judge in appeal has opined that the ambit and scope of the Act is reformative, and, therefore, the juvenile is required to be placed in circumstances where he can be separated from ways of criminals and crime. In the opinion of the learned Judge the revisionist's case fell into more than one of the three disentitling exceptions envisaged in the proviso to Section 12(1) of the Act. The learned Judge has entered her agreement with the view taken by the Board that in case the juvenile were released on bail that would expose him to psychological and moral danger. The learned Judge has recorded that she has looked into the facts of the case not to show the gravity of the offences committed by the revisionist but in order to indicate his criminal propensity discernible from the daring manner in which he has committed the offence for the limited purpose of assessing whether his case falls in one or the other disentitling categories. She has inferred that the gravity of the offence committed and the manner of its perpetration reflects the mind of the juvenile and his criminal association. Possibly, from that the learned Judge has moved on to hold, reading it together with some remarks in the Social Investigation Report, that release would bring the juvenile into association with some known criminal.

7. The learned Judge in appeal has approached the matter as if she wanted to maintain not just the distinction mandated by the Act while dealing with the bail plea of a juvenile but to place standards of appraisal of a bail plea of a juvenile on the one hand and that of an adult on the other into two watertight compartments. The learned Judge has apparently thought in a manner where she is not alone in that opinion that merits of the case are absolutely irrelevant in assessing the bail plea of a minor. However, the said position is not so impervious as some times it is thought to be. The merits of the case which would mean many things like the gravity of the offence, the manner of its perpetration, the circumstances of the victim and the like that do bring into the play the merits of the case also, none else than through the parameters of the proviso to Section 12(1) of the Act. It, generally, is the last disentitling ground under the proviso to Section 12(1) of the Act, that is to say, the ground that release of the child would defeat the ends of justice which permits the court to look into the gravity of the offence, the heinousness of it, the manner of its perpetration, and, all of it put together in some manner referable to the merits of the case. In this regard a decision of this Court in Mangesh Rajbhar vs. State of U.P., 2018(6) ADJ 60, is relevant, where it is held:-

"23. No doubt, generally speaking bail is the rule in the case of a juvenile, even after the enforcement of the present Act, in cases of juveniles below the age of 16 years, and, burden is on the prosecution to show that on the parameters specified in the proviso to Section 12 (1) of the Act bail should be denied to a juvenile. In this connection reference be made to an order passed by this Court in the case of Raja (minor) v. State of U.P. in Criminal Appeal No. 1113 of 2017 decided on 4.5.2017. In this case, the Court has endorsed the view that burden is on the prosecution to bring the case within one of the exceptions under the proviso to Section 12(1) relying on an authority of the Hon'ble Supreme Court in Jitendra Singh vs. State of U.P.3 which makes a clear statement of the law on a reading of paragraph 5 of the judgment in Raja (minor) (supra).

"39. The provision dealing with bail (Section 12 of the Act) places the burden for denying bail on the prosecution. Ordinarily, a juvenile in conflict with law shall be released on bail, but he may not be so released if the reappear 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."

24. This court from what appears on a further reading of the judgment in Raja (minor) (supra) did not construe the last of the three grounds for the refusal of bail to a juvenile in the proviso to Section 12(1) of the Act ejusdem generis; rather, this court in that case referred to the merits of the case and related the ground for denying bail to the juvenile being released on bail "would defeat the ends of justice" with the merits of the prosecution case. In other words, this Court found in the expression "defeat the ends of justice" a repose for the society to defend itself from the onslaught of a minor in conflict with law by certainly making relevant though not decisive, the inherent character of the offence committed by the minor. In this connection paragraph nos. 11, 12 and 13 of the judgment in Raja (minor) (supra) may be gainfully quoted.

"11. The report of the medical examination of the victim clearly shows that the revisionist had forced himself upon the victim, who was seven years old child and in the statements under sections 161 Cr.P.C. and 164 Cr.P.C., the child had clearly deposed about how she was taken away by the revisionist and later on caught on the spot by the public and he pretended to be taking a bath. In the orders impugned, there is specific mention about the fact that the revisionist was accused by name by the victim, who was studying in class II and the release on bail of the revisionist would defeat the ends of justice.

12. Having gone through the record of the case including statement under section 161 Cr.P.C. and the statement under section 164 Cr.P.C. given by the victim and also the report of the medical examination of the victim, which shows penetration by force and resultant injury, I am of the opinion that there is no legal infirmity in the orders impugned as the release on bail of the revisionist would indeed defeat the ends of justice.

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.4 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. 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."

26. The Hon'ble Supreme Court in the case of Om Prakash vs. State of Rajasthan and another5 has brought in due concern in matters relating to juveniles where the offences are heinous like rape, murder, gang-rape and the like etc., and, has indicated that in such matters, the nature and gravity of the offence would be relevant; the minor cannot get away by shielding himself behind veil of minority. It has been held in Om Prakash (supra) by their Lordships thus:

"3. Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of children/juvenile by the juvenile court as it was felt that children 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. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a juvenile court or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held.

23. ...... Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him."

27. It seems thus that the suggestion of the learned counsel for the revisionist that bail to a juvenile or more properly called a child in conflict with law can be denied under the last ground of the proviso to Section 12 ejusdem generis with the first two and not with reference to the gravity of the offence, does not appear to be tenable. The gravity of the offence is certainly relevant though not decisive. It is this relevance amongst other factors where gravity of the offence committed works and serves as a guide to grant or refuse bail in conjunction with other relevant factors to refuse bail on the last ground mentioned in the proviso to Section 12 (1) of the Act, that is to say, on ground that release would "defeat the ends of justice"."

8. In the present case this Court finds that the statement of the prosecutrix under Section 164 Cr.P.C. is of particular relevance where she has said that she was gang raped by the revisionist and the co-accused muffling her voice by their superior physical strength. She has in the concluding part of the statement said that when she was proceeding to the Police Station with her family, the father and brother of revisionist offered them Rs.10,000 - 15,000/- not to report the matter to the police. The offence, thus, committed by the revisionist is certainly of a heinous nature and it discloses a matured mind at work. It also shows that the revisionist well understands the nature and consequences of his actions. The fact that the revisionist is a neighbour of the prosecutrix shows that he is absolutely a desperate, unbridled and violent youth who is certainly not well bonded into regulation of a family that may have taught him good values of civil behaviour. The Social Investigation Report also gives that input about the revisionist's family and indicates that there is no other male member in the family to keep him in good discipline.

9. Under these circumstances this Court is of opinion that the revisionist's case falls for sure under the third category of the disentitling grounds under the proviso to Section 12(1) of the Act where release of the juvenile would lead to ends of justice of being defeated.

10. This Court is, thus, in agreement with the concurrent opinion of the two courts below and would dismiss this revision.

11. In the result, this revision fails and is dismissed.

Order Date :- 3.8.2018

Anoop