Sachin Yadav (Minor) Thru.Father ... vs State Of U.P. & Anr.
2021 Latest Caselaw 9589 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Case :- CRIMINAL REVISION No. - 21 of 2019
 

 
Revisionist :- Sachin Yadav (Minor) Thru.Father Shobhnath Yadav
 
Opposite Party :- State Of U.P. & Anr.
 
Counsel for Revisionist :- Brijesh Yadav "Vijay",Sumit Kumar Srivastava
 
Counsel for Opposite Party :- Govt. Advocate,Vikas Chauhan
 

 
Hon'ble Mrs. Saroj Yadav,J.

1.   This criminal revision has been preferred by the juvenile Sachin Yadav through his father Shobhnath Yadav, under Section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 (in short 'Act of 2015') against judgement and order dated 30.5.2018 passed by Additional Sessions Judge, Court No.1, Pratapgarh in Criminal Appeal No.18 of 2017 and order dated 15.2.2018 passed by the learned Juvenile Justice Board, Pratapgarh ( in short 'J.J.Board') in Bail Application No.21 of 2018 arising out of Case Crime No.267 of 2017, under Sections 376(2) of The Indian Penal Code ( in short 'I.P.C.') and Section 3/4 of Protection of Children from, Sexual Offences Act, 2012 (in short 'POCSO Act'), Police Station Patti, District Pratapgarh.

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

3.  On 25.12.2017, a First Information Report ( in short 'F.I.R.') was registered at Case Crime No.267 of 2017 at Police Station Patti, District Pratapgarh on the basis of a complaint moved by Sanjay Yadav. In the complaint, it has been written that on 25.12.2017 at about 1.30 p.m., his daughter aged about 5 years was playing in front of the house. Sachin Yadav, the resident of the same village aged about 19 years enticed her away in a sugarcane field and committed rape on her. His daughter came back soaked in blood. He gave information on the police helpline No. Dial-100. The police reached at the spot.

4. Investigation started. Revisionist was arrested. He claimed juvenility and was so declared, by the learned J.J. Board.

5. Thereafter, he moved bail application and the same was rejected by the learned J.J.Board vide order dated 15.2.2018. He preferred an appeal under Section 101 of the Act of 2015 and that too was rejected vide judgement and order dated 30.5.2018. Being aggrieved by the above order and judgement, the revisionist has invoked jurisdiction of this court.

6. Heard Shri Sumit Srivastava, learned counsel for the revisionist, Shri Vikas Chauhan, learned counsel for the respondent no.2 and Shri Ashwani Kumar, learned A.G.A. for the respondent State.

7. Learned counsel for the revisionist submitted that the impugned judgement and order passed by the learned J.J. Board as well as learned appellate court are illegal, arbitrary and mala fide. The revisionist has been declared juvenile. The revisionist is a student of High School. His age was found 13 years, nine months and 17 days at the time of the alleged incident, by the J.J.Board vide order dated 6.12.2018. No substantial reason has been recorded for denying the bail to the revisionist. There is nothing adverse to the revisionist in the report of the District Probation Officer, Pratapgarh ( in short 'D.P.O.').

8. He further submitted that, learned J.J.Board as well as learned Appellate Court have not applied their legal minds while passing the impugned order and judgement because under Section 12 (1) of the Act of 2015, a juvenile can be denied bail only if his case falls within any of the exceptions mentioned in the proviso to Section 12(1) of the Act of 2015 and not otherwise, hence the impugned judgement and order should be set aside.

9. Learned counsel for the respondent no.2 and learned A.G.A. on the other hand, have submitted that there is no illegality in the order of learned J.J. Board as well as the order passed by the appellate court. Revisionist has committed rape on the victim who was of tender age i.e. five years old at the time of the incident. Hence the revision should be dismissed.

10. Considered the rival submissions and perused the record.

11.  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."

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

12.   It is settled law that  a bail application of a juvenile can be rejected only if there appears reasonable ground for believing that : (i) 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.  In the present matter, the Juvenile Justice Board came to the conclusion that if the Juvenile revisionist was released on bail, then it will cause moral, physical and psychological danger to him and it will defeat the ends of justice and the juvenile would commit offence again in the association with known or unknown criminals.

14.  The appellate court concluded that there exists reasonable ground to believe that if the juvenile is released on bail, he will be exposed to moral, physical or psychological danger and confirmed the order of the learned J.J. Board and rejected the appeal  of the juvenile. 

15. It is discernible from perusal of the record that the revisionist was declared juvenile by the learned J.J.Board vide order dated 6.12.2018. His age was found 13 years, nine months and 17 days at the time of the alleged incident. The revisionist is in detention since 27.12.2017. It means he has spent more than three and a half years in detention.

16.   In the report of the D.P.O., which is Annexure No.3 to the affidavit filed, there is nothing in this report  to lead to the conclusion that the case of the revisionist  falls within any of the three exceptions mentioned in the proviso to Section 12 (1) of the of the Act of 2015.

Learned J.J.Board and appellate court have not given reasons on what basis they came to the conclusion mentioned in the impugned order and judgment.

17.   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.

18.   The revision is allowed.  Judgement and order dated 30.5.2018 passed by Additional Sessions Judge, Court No.1, Pratapgarh in Criminal Appeal No.18 of 2017 and order dated 15.2.2018 passed by learned J.J. Board, Pratapgarh in Bail Application No.21 of 2018 arising out of Case Crime No.267 of 2017 under Section 376 (2) Cr.P.C. are set aside.

The juvenile (Sachin Yadav) shall be released on bail in Case Crime No.267 of 2017, under Sections 376(2) I.P.C. and Section 3/4 of POCSO Act, Police Station Patti, District Pratapgarh. 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 Principal Magistrate, J.J. Board, Pratapgarh subject to  following conditions :-

(i).   That the 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 the 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  Sachin Ydav and his father Shobhnath Yadav 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, Pratapgarh on such periodical basis as the learned J.J.Board determines.

( Saroj Yadav,J)

Order Date :- 5.8.2021

Shukla