Salman Thru. His Father Ajmat Ali vs State Of U.P. & Anr.
2021 Latest Caselaw 9591 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

								Reserved.
 

 
Case :- CRIMINAL REVISION No. - 617 of 2020
 

 
Revisionist :- Salman Thru. His Father Ajmat Ali
 
Opposite Party :- State Of U.P. & Anr.
 
Counsel for Revisionist :- Manish Bajpai,Sushil Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Saroj Yadav,J.

1.   This criminal revision has been preferred by the juvenile Salman through his father, under Section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 (in short 'Act of 2015') against judgement and order dated 6.11.2020 passed by Additional District and Sessions Judge/POCSO Act, Court No.1, Lucknow in Criminal Appeal No.250 of 2020 (Salman Vs. State of U.P.) and order dated 6.10.2020 passed by the learned Juvenile Justice Board, Lucknow ( in short 'J.J. Board') in Misc. Case No.116/2020 arising out of Case Crime No.184/2020, under Sections 376, 342, 506 of The Indian Penal Code ( in short 'I.P.C.') and Section 5/6 of the Protection of Children from Sexual Offences Act of 2012 ( in short 'POCSO Act'), Police Station Gudamba, District Lucknow.

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

3.   On 22.7.2020, a First Information Report ( in short 'F.I.R.') was registered at Case Crime No.0184 of 2020, on the basis of written report presented by Mobin Khan. It was alleged in the report that on 22.7.2020, at about 1.00 p.m. his daughter aged about nine years was alone in the house. Salman son of Azmat, resident of same village came to his house and asked his daughter to come to his (Salman's) house and take mangoes which have been sent by her father (victim's father). On this, his daughter alongwith her cousin Samad aged about five years went to the house of Salman. Salman ousted Samad and restrained his daughter and closed her in his house. Thereafter, Salman committed rape on her giving threat to kill her. Victim came back crying at about 1.30 p.m.

4. Investigation started. The revisionist was taken into custody. He claimed juveniity and was so declared, by the learned J.J.Board vide order dated 11.9.2020. He moved bail application and that was rejected by learned J.J.Board vide order dated 6.10.2020. An appeal was preferred under Section 101 of the Act of 2015, that too was rejected vide order dated 6.11.2020. Being aggrieved by above order and judgement, this criminal revision has been preferred.

5. Heard Shri Sushil Kumar Singh, learned counsel for the revisionist and Shri Ashwani Kumar, learned A.G.A. for the respondent State.

6. None appeared for respondent no.2 despite of service of notice.

7. Learned counsel for the revisionist submitted that the revisionist is a juvenile. He has been so declared by the learned J.J.Board. His age was found 12 years, nine months and 17 days on the date of the incident. There is no criminal history of the revisionist. Nothing adverse to the revisionist has been found in the report of the District Probation Officer, Lucknow ( in short 'D.P.O.') to bring the case of the juvenile under either of the exceptions provided in the proviso to Section 12(1) of the Act of 2015.   Father of the juvenile will keep him under his supervision.

He has further submitted that the learned J.J Board and learned appellate court did not apply 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 given under Section 12(1) of the Act of 2015 and not otherwise, hence the impugned order and jugement should be set aside.

9. On the contrary, learned A.G.A. submitted that the revisionist committed rape on the victim of tender age. Victim was of just nine years' old at the time of the incident. She has supported the F.I.R. version in her statements recorded under Sections 161 and 164 of the Code of Criminal Procedure (in short 'Cr.P.C.'). The revisionist was mature enough to know the consequences of the act what he did. There is no illegality in the order and judgement impugned, 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 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 thatperson 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."

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 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 11.9.2020. His age was found 12 years, nine months and 17 days on the date of the incident. The revisionist is in detention since 23.7.2020.

There is nothing in the report of the D.P.O. to show that the case of the revisionist  falls within any of the three exceptions mentioned in the proviso to Section 12 (1) of the Act of 2015.

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

14.   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.

15.   The revision is allowed.  

Impugned order dated 6.11.2020 passed by the learned Additional District and Sessions Judge/POCSO Act, Court No.1, Lucknow in Criminal Appeal No.250 of 2020 (Salman Vs. State of U.P.) and order dated 6.10.2020 passed by the learned J.J.Board, Lucknow in Misc. Case No.116/2020 arising out of Case Crime No.184/2020(supra) are hereby  set aside.

The juvenile (Salman) shall be released on bail in Case Crime No.184/2020, under Sections 376, 342, 506 I.P.C. and Section 5/6 of POCSO Act, Police Station Gudamba, District Lucknow 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, Lucknow subject to  following conditions :-

(i).   That Ajmat Ali, 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  Salman and his father Ajmat Ali 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, Lucknow on such periodical basis as the J.J. Board determines.

(Saroj Yadav,J)

Order Date :- 5.8.2021

Shukla