Allahabad High Court
Krishna Yadav @ Bholu Yadav vs State Of U.P. And Anr. on 5 January, 2021
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 87
Case :- CRIMINAL REVISION No. - 4407 of 2019
Revisionist :- Krishna Yadav @ Bholu Yadav
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Vijay Kumar Tiwari,Rakesh Kumar Gupta
Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
This revision has been filed by Krishna Yadav @ Bholu Yadav (minor) through his natural guardian/father, namely Rajaram Yadav to quash the judgement and order dated 18.10.2019 passed by learned Addl. Session Judge, Court No.1/Special Judge POCSO Act Gorakhpur in appeal no. 53 of 2019 and order dated 25.4.2019 passed by Juvenile Justice Board Gorakhpur, arising out of Case Crime No. 37 of 2019, under sections 376-D, 506 I.P.C. and 5/6 of POCSO Act, P.S. Sahjanwa, District Gorakhpur.
Heard learned counsel for the revisionist and the learned AGA for the State.
Brief facts of this case are that on 2.2.2019 that opposite party no.2 lodged an FIR against the revisionist with the allegation that revisionist alongwith co-accused committed rape on the same date at about 2.30 PM on the dumb daughter of the informant when the victim had gone to buy samosa from the shop of the co-accused, Bhola Yadav.
Learned counsel for the revisionist has submitted that revisionist is innocent, he has not committed any offence. Co-accused Firoz has been granted bail by this Court. Nothing incriminating fact has been mentioned in the report submitted by the District Probation Officer. He is languishing in jail since 5.1.2019. There is no possibility that if he is released on bail, he will fall in association of any known or unknown criminal or there will be any danger to his moral, physical or psychological development. He has no criminal history. Both the Courts below have passed the impugned order without perusing the material and evidence on record and against the provision of law hence, liable to be quashed.
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.
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 order 25.4.2019 and 18.10.2019 are hereby set aside.
Let the revisionist Krishna Yadav @ Bholu Yadav through his natural guardian/father Rajaram Yadav be released on bail in the aforesaid criminal case and be given into custody of aforesaid natural guardian on furnishing a personal bond with two solvent sureties of relatives of the aforesaid natural guardian each in like amount to the satisfaction of Juvenile Justice Board concerned on the following conditions.
(i)That, aforesaid guardian/ 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 aforesaid natural guardian will make best effort for improvement of juvenile's carrier.
(ii)That the revisionist and his aforesaid natural guardian shall remain present before the trial court on each date fixed, either personally or through counsel.
Order Date :- 5.1.2021
Anuj Singh
