Shivam Pandey (Minor) Thru. ... vs State Of U.P. Thru. Prin.Secy., ...
2021 Latest Caselaw 9587 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 31                                                                   Reserved
 
Case :- CRIMINAL REVISION No. - 651 of 2019
 
Revisionist :- Shivam Pandey (Minor) Through mother Poonam Devi
 
Opposite Party :- State Of U.P. Through Prin. Secy., Home & Anr.
 
Counsel for Revisionist :- Upendra Prakash Pathak,Sudhakar Mishra
 
Counsel for Opposite Party :- Govt. Advocate
 
Hon'ble Mrs. Saroj Yadav,J.

1. This criminal revision has been filed under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short Act of 2015) by the revisionist/juvenile through his mother Smt. Poonam Devi against the judgment dated 01.02.2019 passed by the learned Special Judge, POCSO Act/Additional Sessions Judge-Ist, Barabanki, passed in Criminal Appeal No. 5 of 2019 and the order dated 03.01.2019 passed by the learned Juvenile Justice Board on Bail Application No. 67 of 2018, rejecting the plea of bail in Case Crime No.275 of 2018 under Section 376,506 of the Indian Penal Code, 1860 (in short I.P.C.) and 3/4 of The Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act), Police Station Asandara, District Barabanki.

2. Brief facts necessary for disposal of this revision are as under:-

i. A First Information Report No.275 of 2018 was registered against revisionist/juvenile under Section 376/506 of I.P.C. and ¾ of POCSO Act on the basis of written complaint moved by Ashok Kumar, father of the victim. It was alleged in the F.I.R. that on 11.08.2018 he was working in his field. In the evening at about 5:00 hours, when his daughter aged about 13 years was going to market, Shivam Pandey alias Chhotu dragged her in the forest and committed rape on her. When she resisted, Shivam Pandey threatened her to kill. She some how came to home and told everything to her mother. He could not go to the police station due to fear of stigma in society. The F.I.R. was lodged on 15.08.2018.

ii. The investigation started. The revisionist was taken into custody. He claimed juvenility and was so declared by the Juvenile Justice Board. He moved bail application before the Juvenile Justice Board, that was rejected. Against that order appeal was preferred and appeal too was dismissed by Appellate Court, confirming the order passed by the Juvenile Justice Board.

iii. Being aggrieved by above order and judgment this revision has been filed.

3. Heard Sri Sudhakar Mishra, learned counsel for the revisionist and Sri Dhananjay Kumar, learned A.G.A. for the State respondent. None turned up on behalf of the opposite party no. 2 despite of service of notice.

4. Learned counsel for the revisionist submitted that the Juvenile Justice Board has rejected the bail application of the juvenile without applying its legal mind in a cursory manner and the appellate court too dismissed the appeal without considering the facts and law in a right perspective. He further submitted that the bail of a juvenile can be rejected only in three conditions provided under proviso of section 12(1) of the Act of 2015 and not otherwise. In the report of District Probation Officer there is nothing adverse to the juvenile. Both the learned court below without any basis have concluded that the juvenile, if released on bail will come in association of known criminals and ends of justice shall stand defeated.

5. He further submitted that, the juvenile has been implicated in the crime falsely on the basis of enmity, as the mother of the juvenile has lodged the F.I.R. against the complainant of this case and others, being F.I.R. No. 274 of 2018 which was lodged on14.08.2018 at 22:32 hours. As a counter blast this F.I.R. was lodged to implicate the son (revisionist) of the complainant. Hence, the order passed by Juvenile Justice Board and the Appellate Court (supra) should be set-aside.

6. Contrary to it learned A.G.A. submitted that the /juvenile has dragged the minor daughter of the complainant and committed rape on her. Though the age of the victim mentioned in the F.I.R. is 13 years but in the medical examination she has been found of about 11 years. The victim in her statement under Section 164 Cr.P.C. has supported the prosecution case. The order passed by the Juvenile Justice Board and the appellate Court are perfectly legal and this revision may be dismissed.

7. Considered the rival submissions and perused the record.

8. Section 12(1) of the Act of 2015, in this regard lays down 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 into 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."

9. Legal position is that, for a juvenile in conflict with law bail is the Rule.

It is settled law that a bail application of a juvenile can be rejected only if there appears reasonable ground for believing that the realease is

(i).  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.

10. From perusal of the record it appears that the revisionist /juvenile has been declared juvenile by the Juvenile Justice Board. His age was found 15 years and 21 days on the date of incident. It is also clear from the record that he is in detention since 18.10.2018. The mother of the juvenile has also lodged First Information Report against the complainant of this case and others. A copy of that is on record, which shows, that F.I.R. was prior in time.

11. In the District Probation Officer's report, there is nothing adverse to the conduct of the juvenile. No criminal antecedent has been mentioned there. There is nothing in the report to lead to the conclusion that case of the juvenile falls within any of the three exceptions mentioned in the proviso to Sesction 12(1) of the Act of 2015. The juvenile has already completed two and half years in detention.

12. Considering the above facts and circumstances and the settled position of law, the order of Juvenile Justice Board and the judgment of the appellate court are not sustainable. Therefore, it appears just to set-aside the order passed by the Juvenile Justice Board and the judgement of the appellate court.

13. The revision is allowed. Impugned order dated 01.02.2019 passed by the learned Special Judge, ( POCSO Act, 2012) /Additional Sessions Judge-Ist, Barabanki passed in Criminal Appeal No. 5 of 2019 and the order dated 03.01.2019 passed by the Juvenile Justice Board on Bail Application No. 67 of 2018, rejecting the plea of bail in Case Crime No.275 of 2018 under Section 376,506 of I.P.C. and 3/4 of POCSO Act, Police Station Asandara, District Barabanki, are hereby set-aside.

14. The juvenile (Shivam Pandey) shall be released on bail in Case Crime No.275/2018 (supra) and be given in custody of his mother, on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Principal Magistrate of Juvenile Justice Board, Barabanki subject to following conditions :-

(i)   That the mother 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 she will ensure that the juvenile do not repeat the offence.

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

(iii)  The revisionist  Shivam Pandey and her mother Poonam Devi will report to the District Probation Officer 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 District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Sultanpur on such periodical basis as the Juvenile Justice Board determines.

(v) The party shall file a computer generated copy of such order downloaded from the official website of High Court Allahabad.

(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

(vii)  The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 05.08.2021

A.K. Singh

(Saroj Yadav, J.)