Allahabad High Court
Sunny Rajbhar vs State Of U.P. on 5 January, 2021
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 87
Case :- CRIMINAL REVISION No. - 3590 of 2019
Revisionist :- Sunny Rajbhar
Opposite Party :- State of U.P.
Counsel for Revisionist :- Shivasare,Umesh Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
This revision has been preferred by the revisionist Sunny Rajbhar, (Minor) through his father Badri Rajbhar against the judgment and order dated 5.4.2019 passed by learned 1st Additional Sessions Judge Deoria in Criminal Appeal No. 7 of 2009 dismissing the appeal and confirming the impugned order dated 28.2.2019 of the learned Principal Judge/Kishore Nyay Board Deoria rejecting the bail application of the revisionist under Section 376D IPC read with Section 3/4 of POCSO Act, P.S. Rudrapur, District Deoria.
Heard learned counsel for the revisionist, learned A.G.A for State of U.P. and perused the record.
Learned counsel for the revisionist has submitted that the revisionist is juvenile and has falsely been implicated in the present case. It is further submitted that in physical examination, no mark of injury seen on the body of the victim and guardian of the victimclearly refused the internal examination of the victim and doctor opined that the definite opinion cannot be given for sexual assault. It is also submitted that as per Juvenile Justice Board order dated 9.1.2012 at the time of incident, age of the revisionist was twelve years and six months. There is no evidence against him. No specific role has been assigned against him. No incriminating fact has been mentioned in the report submitted by the District Probation Officer. If he is released on bail, he will not misuse the liberty of bail. He is languishing in remand home since 4.11.2018. Similarly placed co-accused, namely Shivam Rajbhar and Jhinak Rajbhar have got bail in Crl. Revision Nos. 2257 of 2019 and 2261 of 2019. The aforesaid impugned orders are against the provision of law which are liable to be set aside.
Learned A.G.A has vehemently opposed the prayer made by the learned counsel for the revisionist and submitted that if the revisionist is released on bail, he will join in the company of habitual criminal,hence he is not entitled for bail.
The Juvenile Justice (Care and Protection) Act, 2015 (Act) has been enacted with object to reform and protect the future career of children below the age of 18 years. The main purpose of this Act is to keep the juvenile out of company and society of habitual criminals and to keep them in place of safety. The parameter and guidelines for assessment of plea of bail of a juvenile has been provided in Section 12 of the Act which is as under:-
"When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety 1[or placed under the supervision of a Probation Officer or under the care of any fit institution of fit person] but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."
Thus it is clear that the provision for release to a juvenile has overriding effect to any provision contained in Code of Criminal Procedure, 1973 or in any other law for the time being in force. According to this provision, a duty has been cost to grant bail to a juvenile unless there is a reasonable ground for plea that the release is likely to bring the juvenile into association with any known criminal or exposed the said juvenile to moral, physical or psychological danger or that his release would defeat the end of justice.
Plea of bail raised by juvenile cannot be rejected in a mechanical manner. While considering the parameter provided in Section 12 of the Act, nature of offence, role played by the juvenile in committing the offence, his family background, his association with known or unknown criminals or bad elements of society, number of person named in the occurrence and future carrier of juvenile should also be taken into consideration by Juvenile Justice Board or court concerned in addition to the other factors.
In this case the revisionist was aged about 12 years six months at the time of occurrence. Admittedly the revisionist was juvenile at the time of occurrence. No material is available on record whereby it can be presumed that the revisionist was in association of any criminal or bad elements.
From perusal of impugned judgement and order passed by the appellate Court as well as passed by the Board, it transpires that both the Courts below have passed the impugned judgement and orders in cursory manner without placing due reliance on the report submitted by the District Probation Officer as well as facts and circumstances of this case. The impugned judgment and orders are liable to be set aside.
Consequently, the revision succeeds and is allowed. Both the impugned judgment and orders dated are hereby set aside.
Let the revisionist-Sunny Rajbhar through his natural guardian be released on bail in the aforesaid criminal case and be given into his custody on furnishing a personal bond with two solvent sureties of his relatives each in like amount to the satisfaction of Juvenile Justice Board concerned on the following conditions.
(i)That, father / natural guardian of the revisionist will furnish an undertaking that upon release on bail, the juvenile will not be permitted to go into contact or association with any known or unknown criminal or exposed to any moral or physical danger and will not indulge in any criminal activity and he will make best effort for improvement of juvenile's carrier.
(ii)That the revisionist and his aforesaid father/ natural guardian shall remain present before the trial court on each date fixed, either personally or through his counsel.
Order Date :- 5.1.2021
Ankita
