Aman Kashyap vs State Of U.P. And Anr.
2021 Latest Caselaw 6985 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 31 .A.F.R.
 
Case :- CRIMINAL REVISION No. - 474 of 2020
 

 
Revisionist :- Aman Kashyap
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Vivek Pandey,Ashish Raman Mishra
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Mrs. Saroj Yadav,J.

1. This criminal revision has been preferred by the juvenile Aman Kashyap through his mother, under Section 102 of The Juvenile Justice (Care and Protection of Children) Act, 2015 (in short 'Act of 2015') against order dated 28.8.2020 passed by Additional District and Sessions Judge/Special Judge(POCSO Act), Gonda in Criminal Appeal No.21 of 2021 (Aman Kashyap Vs. State of U.P.) and order dated 2.7.2020 passed by Principal Magistrate, Juvenile Justice Board, Gonda in Case No.18/2020 (State of U.P. Vs. Aman Kashyap in Case Crime No.10/2020, under Sections 363, 366, 506, 376 (3) Indian Penal Code ( in short 'I.P.C.') and Section 3/4 of The Protection of Children from Sexual Offences Act, 2012 ( in short 'POCSO Act'), Police Station Kotwali Nagar, District Gonda.

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

3. An F.I.R. bearing Case Crime No.10/2020 was registered against the revisionist at police Station Kotwali Nagar, District Gonda under Sections 363, 366, 506, 376 (3) I.P.C. and under Section 3/4 of POCSO Act.

In the F.I.R., allegations against the revisionist are that he enticed away the daughter of the complainant on 8.12.2019 at about 9.00 p.m. in the night. He left the victim back on 29.12.2019 and threatened to kill her if she tells anybody about the incident. In her statement recorded under Sections 161 and 164 Cr.P.C., the victim has stated that Aman (revisionist) took her away forcibly and committed rape upon her.

The revisionist was declared juvenile by the Juvenile Justice Board per order dated 8.6.2020. He moved application to release him on bail which was rejected by the Juvenile Justice Board per order dated 2.7.2020.

4. Being aggrieved by the order of the Juvenile Justice Board, the applicant preferred appeal under Section 101 of the Act of 2015 which was decided by the Additional District and Sessions Judge/Special Judge, POCSO Act, Gonda per order dated 28.8.2020 wherein appeal of the applicant juvenile was dismissed.

5. Being aggrieved by the order passed in appeal, this revision has been preferred.

6. The revisionist juvenile has assailed the impugned order mainly on the ground that the court below has overlooked the report of the District Probation Officer wherein nothing adverse has been noted against the revisionist. No reason has been assigned by the appellate court to arrive at the conclusion that if the applicant will be released on bail, he would associate with criminals and that will cause moral, physical or psychological danger to the applicant/revisionist. There is also no reason to conclude that if the revisionist is released on bail, that will defeat the ends of justice.

7. It has also been stated that the bail application of the juvenile can be rejected only if there exists either of the conditions provided in the proviso to Section 12(1) of the Act of 2015. It has further been stated that the impugned orders passed by the appellate court as well as Juvenile Justice Board are without application of mind and illegal.

8. Notice was served upon respondent no.2 the informant but none turned up.

9. Counter affidavit was filed by respondent no.1 State of U.P. wherein it has been stated that if the applicant is released on bail, then there is possibility that law and order situation may worsen and the applicant may abscond.

10. Heard learned counsel for the revisionist and learned A.G.A.

11. Learned counsel for the revisionist/juvenile submitted that the revisionist is a minor. The victim and the applicant are students in the same school. Both are minor. The victim herself accompanied the applicant juvenile. Furthermore, the settled legal position is that the bail application of the juvenile in conflict with law can be rejected only on the ground mentioned in the proviso of Section 12 of the Act of 2015 and not otherwise.

He further submitted that there is no material on record to infer that the applicant juvenile if released on bail, shall come in association of known criminals or his release will defeat the ends of justice. The applicant is in judicial custody since 10.1.2020. Therefore, the applicant may be released on bail and the order dated 28.8.2020 passed by the learned Additional Sessions Judge/ Special Judge, POCSO Act as also order 2.7.2020 passed by Juvenile Justice Board be set aside.

12. Learned A.G.A. opposed the revision and submitted that the applicant juvenile enticed away the minor daughter of the informant and committed rape upon her. This has been proved by the statement of the victim under Section 164 Cr.P.C. So the application should be rejected.

13. Considered the rival submissions and perused the record.

14. 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.

15. It is settled law that a bail application of a juvenile can be rejected only -

(i). If there appears reasonable ground for believing that the release is likely to bring the juvenile into association with any known criminal ; or,

(ii). exposed the juvenile to moral, physical or psychological danger ; or,

(iii). release of the juvenile would defeat the ends of justice.

16. In the present matter, the Juvenile Justice Board came to the conclusion that if the Juvenile applicant 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.

17. 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 Juvenile Justice Board and rejected the appeal of the juvenile.

18. In the report of the District Probation Officer, which is Annexure -5 to the affidavit filed in this revision, it has been stated that the juvenile is in State Juvenile Home since 10.1.2020. He has no criminal history. He was studying in Class-11 at the time of the incident. In the report, there is no mention that there is any possibility of the association of the juvenile with known or unknown criminals.

Perusal of this report shows that 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 Juvenile Justice Act, 2015.

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

19. 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 orders passed by the Juvenile Justice Act and the judgement passed in appeal.

20. The revision is allowed. Impugned order dated order dated 28.8.2020 passed by Additional District and Sessions Judge/Special Judge, POCSO Act, Gonda in Criminal Appeal No.21 of 2021 (Aman Kashyap Vs. State of U.P.) and order dated 2.7.2020 passed by Principal Magistrate, Juvenile Justice Board, Gonda in Case No.18/2020 (State of U.P. Vs. Aman Kashyap in Case Crime No.10/2020, under Sections 363, 366, 506, 376 (3) I.P.C. and Section 3/4 of POCSO Act, Police Station Kotwali Nagar, District Gonda, are hereby set aside.

21. The bail application moved on behalf of the revisionist by his mother Madhuri is allowed.

The juvenile(Aman Kashyap) shall be released on bail in Case Crime No.10/2020(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, Gonda 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 further that the mother 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 Aman Kashyap and his mother Madhuri 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, Gonda on such periodical basis as the Juvenile Justice Board determines.

Order Date :- 5.7.2021

Shukla ( Saroj Yadav, J)