Anand Singh @ Anand Kumar Singh vs State Of U.P. & Another
2018 Latest Caselaw 3397 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

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

 
Case :- CRIMINAL REVISION No. - 3334 of 2017 
 

 
Revisionist :- Anand Singh @ Anand Kumar Singh 
 
Opposite Party :- State Of U.P. & Another 
 
Counsel for Revisionist :- R.K. Shahi 
 
Counsel for Opposite Party :- G.A. 
 

 
Hon'ble J.J. Munir,J.

1. This Criminal Revision under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015, and, hereinafter, referred to as the 'Act' is directed against an order of Sri Lal Mani, the Additional Sessions Judge, Court no.2, Kushi Nagar at Padrauna, dated 26.09.2017 passed in Criminal Appeal no.54 of 2017, dismissing the said appeal, and, affirming an order dated 16.08.2018 passed by the Juvenile Justice Board, Kushi Nagar at Padrauna rejecting an application for bail by the revisionist in Case Crime no.255 of 2017, under Sections 376, 363, 366, 506 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, Police Station Kubersthan, District Kushi Nagar.

2. Heard Sri R.K. Shahi, learned counsel for the revisionist and Sri J.B. Singh, learned A.G.A. on behalf of the State.

3. The First Information Report giving rise to the present prosecution was registered on 30.06.2017, on a written information by the grandfather of the prosecutrix, under Sections 363, 366 IPC, Police Station Kubersthan, District Kushi Nagar. It is alleged by the informant, who is opposite party no.2 to this revision, that on 28.06.2017 at 5.00 p.m. the revisionist, along with co-accused Yogendra Singh, Vikas Singh and Poonam Singh, all residents of Tadava, P.S. Kubersthan, District Kushi Nagar, took away the prosecutrix by blandishment. It is said that the prosecutrix was aged 15 years, and, a search amongst relatives, did not lead to her whereabouts. Complaining of enticing away, his minor granddaughter, the prosecutrix, the second opposite party, requested registration of a case. On the basis of the aforesaid written first information dated 30.06.2017, a First Information Report was registered, on the said date at half past noon.

4. The revisionist, being a minor, applied to be declared a child in conflict with the law, under the provisions of the Act, through an application made to the Juvenile Justice Board, Kushi Nagar at Padrauna, and, hereinafter referred to as the 'Board'. The said application was heard and granted by the Board vide an order dated 05.08.2017, declaring the revisionist to be a child in conflict with the law, aged 17 years, 4 months and 18 days, on the date of occurrence. The revisionist, upon being declared a juvenile, made an application seeking bail pending trial to the Board, that has come to be rejected vide order dated 16.08.2017. The said order, on being appealed by the revisionist to the learned Sessions Judge, has been upheld. The present revision has been preferred, asking this Court to overturn orders, passed by the two courts below.

5. The learned counsel for the revisionist has submitted that the revisionist, if an adult, on the evidence that appears on record would be entitled to bail. It is urged, that the two courts below have refused bail, without adverting to the prima facie merits of the case, so as to assess, whether the revisionist, if an adult, would be entitled to bail. It is submitted that they have assumed the prosecution case against the revisionist proved, and, then on that assumption, purportedly tested whether he is entitled to bail, by enquiring into the three exceptions, engrafted under the proviso to Section 12(1) of the Act. In other words, the courts below have attempted to find out, dehors the merits of the prosecution case, whether one or the other disentitling grounds, under the proviso to Section 12(1) of the Act, obtain in the revisionist's case, and, nothing more. The learned counsel submits that on the merits of the prosecution, no case is made out against the revisionist, as it is a case of a consensual relationship between the revisionist and the prosecutrix, taken at its worst. At best, it is a case of no evidence.

6. This Court has been taken through the medico-legal report, which shows that the prosecutrix, on a medical estimation of her age, opined to be 18 years old. So far as the submission of the learned counsel for the revisionist that a case on merits is made out, so as to entitle the revisionist to bail, on parameters that an adult similarly circumstanced, would be entitled to bail is concerned, this Court is of opinion that not much can be said at this stage, one way or the other. In any case, the revisionist has his right under Section 12(1) of the Act, and, therefore, the said contention does not require further consideration, without prejudice to the revisionist's right to urge the said plea, at an appropriate stage, if required.

7. This leaves the revisionist with his right to bail, unless there are disentitling grounds, envisaged under the proviso to Section 12(1) of the Act. The courts below have tested the case of the revisionist, on that anvil. At least, they have attempted to do so. This Court has perused the orders, passed by both courts below, and, finds that the Board have concluded, without adverting to any specific material that the revisionist keeps bad company, and, his family have scant supervision over him, on account of which he has been involved in the present offence. There is a remark that his circumstances do not appear to be positive, but negative. It is with these rather un-understandable observations that the Board have concluded, that the revisionist is disentitled to bail, on each of the three parameters, envisaged under the proviso to Section 12(1) of the Act. This Court finds that the findings of the Board, in the absence of consideration of specific facts, evidence and circumstances, relative to one or the other disentitling grounds, cannot be accepted. The conclusions of the Board, in the opinion of this Court, are no more than an ipse dixit of the learned Members.

8. The Appellate Court has done little to improve upon the Board's determination, of the revisionist's bail plea. For the most part, the learned Judge in appeal, after a reference to some facts of the case, has referred to the statutory provisions governing consideration of a bail plea by a juvenile under the Act. In the concluding part of the judgment, the learned Judge in appeal, has upheld the Board's order on a finding, that looking to the facts that the revisionist has ravished a minor of 15 years, in case bail were granted, a wrong message would go out in society. It has been opined, that looking to the heinous nature of the offence, in case release on bail were ordered, ends of justice would be defeated.

9. This Court finds that it is nobody's case before this Court, that the revisionist is not entitled to bail on the first of the two disentitling grounds, under the proviso to Section 12(1) of the Act. The learned A.G.A. has also not sought to urge that releasing the revisionist on bail, would bring him into association with any known criminal, or expose him to moral, physical or psychological danger. Those disentitling grounds, therefore, do not call for further revisitation, and, are held determined in favour of the revisionist. Now, for the Appellate Court's opinion that the revisionist has ravished a minor, a girl of 15 years, and, therefore, releasing him on bail would send out a wrong message in society, that brings the case of the revisionist in teeth of the disentitling ground, where 'ends of justice would be defeated'. In the opinion of this Court it is a finding recorded, ignoring relevant material from consideration, and, in breach of the provisions of Section 94(2) of the Act, that require the age of the victim of rape, where the accused is a juvenile, to be determined in accordance with the said provision.

10. In this connection, the decision of the Hon'ble Supreme Court in State of Maharasthra vs. Anoop Singh, (2015) 7 SCC 773, is an authoritative pronouncement of law that would require the Appellate Court to act in accordance with the provisions of Section 94(2) of the Act. The Appellate Court has not determined the age of the prosecutrix at all, and, believed her to be a minor, aged 15 years, for the mere assertion of the first informant, in the First Information Report. The assumption of the Appellate Court, therefore, that the prosecutrix is a minor, is manifestly illegal, and, one based on no evidence. The Appellate Court has also ignored from consideration vital inputs in the Social Investigation Report, that show the family profile of the revisionist to be quite conducive, prima facie, to his rehabilitation in the social mainstream. His father is an Advocate, his mother a home-maker, two sisters of his are graduates, and a brother, who is reading in some technical course, in the Polytechnic. The learned Judge has also ignored from consideration, an important input in the Social Investigation Report, that says that there is an angle of some kind of a love affair between parties that has come to light. This Court refrains from expressing any final opinion in the matter, whether release of the revisionist would lead to ends of justice being defeated. But, certainly the Appellate Court ought to take into consideration all materials indicated hereinabove, and, others that might be relevant, before determining the issue. The age of the prosecutrix is also required to be investigated, and, determined in accordance with law by the Appellate Court, it being the last court of fact.

11. In the result, this revision succeeds in part, and, is allowed accordingly. The impugned judgment and order dated 26.09.2017 passed by the learned Additional Sessions Judge, Court no.2, Kushi Nagar at Padrauna in Criminal Appeal No.54 of 2017 is set aside, with a remit of the matter to the Appellate Court, where the appeal shall stand restored to file to be determined afresh in accordance with law, and, what has been said in this judgment, within a period of six weeks from the date of receipt of a certified copy of this order.

12. Let a copy of this order be certified to the Appellate Court concerned through the learned Sessions Judge, Kushi Nagar at Padrauna by the office forthwith.

Order Date :- 29.10.2018

Anoop