Abhinay Shrivastav @ Arjun ... vs State Of U.P. & Another
2021 Latest Caselaw 10981 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                                     Reserved.
 

 
Case :- CRIMINAL REVISION No. - 291 of 2020
 

 
Revisionist :- Abhinay Shrivastav @ Arjun Shrivastav 
 
                    Through his father Vineet Shrivastav
 
Opposite Party :- i).  State of U.P.   
 
			   ii).  Sanjay Saini
 
Counsel for Revisionist :- Shri Devendra Pratap Singh
 
Counsel for Opposite Party :- Shri Rao Narendra Singh,
 
				               A.G.A.
 
				     ii). Shri Mohammad Babar Khan,
 
				     iii).  Shri Prabhakar Srivastava
 

 
Hon'ble Mrs. Saroj Yadav,J.

1.   This criminal revision has been preferred by the juvenile Abhinay Shrivastav @ Arjun Shrivastav through his father Vineet Shrivastav, under Section 102 of The Juvenile Justice (Care and Protection of Children) Act, 2015 (in short 'Act of 2015') against judgement and order dated 24.2.2020 passed by learned Special Judge/ Additional Sessions Judge (POCSO Act), Court No.12, District Hardoi in Criminal Appeal No.4 of 2020 and order dated 14.1.2020 passed by learned Juvenile Justice Board, Hardoi (in short 'J.J. Board') on Bail Application No.1/2020 in Case Crime No.706 of 2019, under Sections 363, 366, 376 of Indian Penal Code ( in short 'I.P.C.') and Section 3/4 of The Protection of Children from Sexual Offences Act of 2012 ( in short 'POCSO Act'), Police Station Kotwali City, District Hardoi whereby the bail application of the juvenile was rejected by the learned J.J.Board and the appellate court dismissed the appeal preferred against the order of the learned J.J.Board.

2.  The brief factual matrix necessary for disposal of this criminal revision is as under :-

3.   On 18.10.2019, a First Information Report ( in short 'F.I.R.') was registered at Case Crime No.706 of 2019 at Police Station Kotwali City, District Hardoi on the basis of the written complaint moved by Sanjay Saini.

In the complaint, it was written that on 8-9.10.2019 in the midnight, his daughter aged about 16 years, had gone somewhere. On inquiry it came to surface that she had been enticed away by Arjun Shrivastav for performing marriage.

4. Investigation started. Revisionist was taken into custody. He claimed juvenility and was so declared by the learned J.J.Board vide order dated 7.1.2020. His age was found more than 16 years but below 18 years on the date of the incident. Thereafter, the revisionist moved bail application before the learned J.J.Board, that was rejected vide order dated 14.1.2020. Against the order of learned J.J.Board, the revisionist preferred an appeal under Section 101 of the Act of 2015 but that too was rejected vide order dated 24.2.2020.

5. Being aggrieved by the judgement of the learned appellate court and the order of the learned J.J.Board, this criminal revision has been preferred.

6. Heard Shri Devendra Pratap Singh, learned counsel for the revisionist, Shri Prabhakar Srivastava learned counsel for respondent no.2 and Shri Rao Narendra Singh, learned Additional Government

Advocate for the respondent State and perused the record.

7. Learned counsel for the revisionist submitted that the learned J.J.Board as well as the learned appellate court had passed the impugned judgement and order without applying legal mind. The impugned judgement and order are against the law. Both the learned courts below have failed to appreciate the legal position that a juvenile can be denied bail only in the exceptional cases provided under Section 12(1) of the Act of 2015.

8. Learned counsel for the revisionist further submitted that there is no criminal antecedents and nothing against the revisionist in the report of the District Probation Officer, Hardoi ( in short 'D.P.O.').

Apart from this, the victim in her statement recorded under Section 164 Code of Criminal Procedure (in short 'Cr.P.C.') has stated that she herself went with the revisionist as she has love affair with him and her radiological age is above 18 years.

Considering these facts, the impugned judgement and orders passed by the J.J.Board and appellate court should be set aside and the revisionist should be released on bail.

9. On the other hand, learned counsel for respondent no.2 as well as learned Additional Government Advocate opposed the submissions made by learned counsel for the revisionist. They submitted that the revisionist had enticed away the minor daughter of the complainant. The victim was

recovered from the company of the revisionist. The victim was minor, so her consent has no meaning at all, hence there is no illegality or irregularity in the judgement and order passed by learned J.J.Board and by learned appellate court.

10. Considered the rival submissions and perused the record as well as the impugned judgement and order.

11. Section 12(1) of the Act of 2015, in this regard reads as under :-

"12. (1) When any person, who is apparently a child and is alleged to have committed a bailable or non- bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 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 person:

Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person in to association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision."

12. Legal position is that, for a juvenile in conflict with law bail is the Rule. The bail to a juvenile can be denied exceptionally.

A juvenile can be denied bail only if there appears reasonable ground for believing; (i) that the release is likely to bring the juvenile into association with  any known criminal ; or,

(ii).  expose the juvenile to moral, physical or psychological danger ; or,

(iii).  release of the juvenile would defeat the ends of justice.

13.  It is discernible from the record that the revisionist was declared juvenile by the learned J.J.Board vide order dated 7.1.2020. His age on the date of incident was found above 16 years but below 18 years.

14. Apart from it, it is also discernible from the record that the victim in her statement recorded under Section 164 Cr.P.C. has stated that on 8.10.2019, she herself went to Shahjahanpur from her home without disclosing it to anyone, alongwith Arjun. She knew Arjun since last four years as she has love affair with him. She went with him on her own volition and came back on 19.10.2019. Father of Arjun gave her a call and told that her father has lodged an F.I.R. So she came back. She has also stated that she wants to marry Arjun. The radiological age of the victim has been found about 19 years as is clear from the medical report available on record annexed as Annexure No.6 to the petition.

There is nothing adverse against the revisionist in the D.P.O's report so as to come to the conclusion that juvenile if released on bail, would come into association of known criminals or the ends of justice stand defeated. There is no criminal antecedents of the juvenile.

15. Considering the above facts and circumstances and the settled position of law, the order of learned J.J. Board and the judgment of the learned appellate court are not sustainable.  Therefore, it appears just

to set aside the order passed by the learned J.J. Board and the judgement passed in appeal.

16.   The revision is allowed.   The impugned judgement and order dated 24.2.2020 passed by learned Special Judge/ Additional Sessions Judge (POCSO Act), Court No.12, District Hardoi in Criminal Appeal No.4 of 2020 and order dated 14.1.2020 passed by learned J.J.Board in Bail Application No.1/2020 arising out of Case Crime No.706 of 2019, under Sections 363, 366, 376 I.P.C. and Section 3/4 of the POCSO Act, Police Station Kotwali City, District Hardoi are hereby  set aside.

17. The juvenile (Abhinay Shrivastav @ Arjun Shrivastav) shall be released on bail in Case Crime No.706 of 2019, under Sections 363, 366, 376 I.P.C. and Section 3/4 of POCSO Act, Police Station Kotwali City, District Hardoi and be given in custody of his father, on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the learned Principal Magistrate of J.J. Board, Hardoi subject to  following conditions :-

(i).   That Vineet Shrivastav, father of the juvenile shall furnish an undertaking  that upon release on bail, the juvenile will not be permitted to come into contact  or association with any known criminal or be exposed to any moral, physical or psychological danger and further that father will ensure that the juvenile do not repeat the offence.

(ii).  The father will further furnish an undertaking to the effect that he will encourage the juvenile to pursue his studies.

(iii).  The revisionist  Abhinay Shrivastav @ Arjun Shrivastav and his father Vineet Shrivastav will report to the D.P.O on the first Monday of every month with effect from the first  Monday of the month next after release from custody, and if during any calendar month, the first Monday falls on a holiday then on the following working day.

(iv).   The D.P.O. will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the learned J.J.Board, Hardoi on such periodical basis as the J.J. Board determines.

(Saroj Yadav,J)

Order Date :- 27.8.2021

Shukla