Allahabad High Court
Vipin Mali (Minor) Thru. Mother ... vs State Of U.P. & Anr. on 20 July, 2021
Bench: Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 31 Reserved "A.F.R"
Case :- CRIMINAL REVISION No. - 861 of 2019
Revisionist :- Vipin Mali (Minor) Thru. Mother Smt. Pushpa Devi
Opposite Party :- State Of U.P. & Anr.
Counsel for Revisionist :- Dhirendra Kumar Mishra, Anil Kumar Tiwari,Nitesh Yadav, Ramakar Shukla
Counsel for Opposite Party :- Govt. Advocate, Gyanendra Mishra
Hon'ble Mrs. Saroj Yadav,J.
1. This criminal revision has been preferred by the revisionist/juvenile Vipin Mali through his mother Smt. Pushpa Devi, under Section 102 of The Juvenile Justice (Care and Protection of Children) Act, 2015 (in short the "Act of 2015") against the judgement dated 30.05.2019 passed by learned Additional Sessions Judge Ist, Sultanpur in Criminal Appeal No. 55 of 2019 as well as order dated 18.04.2019 passed by Principal Magistrate, Juvenile Justice Board, Sultanpur in Case Crime No. No. 541/2018, under Sections 363, 366, 504, 506 Indian Penal Code (in short "I.P.C.") and Section 7/8 of The Protection of Children from Sexual Offences Act, 2012 (in short "POCSO Act"), Police Station Lambhua, District Sultanpur.
2. Brief facts necessary for disposal of this Criminal Revision are as follows:-
An F.I.R. bearing Case Crime No.541 of 2018 was registered against the revisionist/juvenile and four other co-accused persons on the basis of written complaint moved by the complainant Ram Bahadur Yadav narrating the facts that on 15.11.2018 at about 9 AM, the daughter of the complainant aged about 17 years, who was studying in Class 12th in Sarvodaya Inter College, Lambhua, Sultanpur went to her School and when she did not come back, he made a search for her but could not know anything. On the next date, the complainant enquired about her daughter in her School, he came to know that his daughter did not reach the School on 15.11.2018. Thereafter, the complainant made a further search and came to know that Vipin Mali resident of the same village was also missing from the date of incident. Arjun and Dheeraj Yadav, who were friends of Vipin Mali told the complainant that Vipin Mali has taken away his daughter. Thereafter, he met with the father and brother of Vipin Mali, they assured that his daughter would be brought back within two days. On 18.11.2018, when the complainant went to the house of Vipin Mali to enquire about his daughter, then the father of the Vipin Mali abused him and threatened of dire consequences.
3. After investigation, the revisionist and four other accused persons were charge-sheeted. The Court concerned took cognizance of the matter. The revisionist claimed juvenility and was declared juvenile by the Juvenile Justice Board, Sultanpur vide order dated 18.04.2019. Thereafter, the revisionist/juvenile moved bail application before the Juvenile Justice Board, Sultanpur that was rejected vide order dated 09.05.2019. Against that order an appeal was preferred under Section 101 of the Act of 2015 and that appeal too was dismissed by the Appellate Court vide judgment and order dated 30.05.2019. Being aggrieved with the said order/judgment, the revisionist/juvenile preferred the present revision.
4. Heard Sri Anil Kumar Tiwari, learned counsel for the revisionist and Sri Rao Narendra Singh, learned A.G.A. appearing on behalf of the State respondent. None turned up on behalf of the opposite party no. 2 despite of service of notice.
5. Learned counsel for the revisionist/juvenile submitted that revisionist is in Juvenile Home since 14.02.2019. He was declared juvenile by the Juvenile Justice Board, Sultanpur vide order dated 18.04.2019. The age of the revisionist was found 12 years 11 months and 5 days at the time of incident. He further submitted that Juvenile Justice Board did not consider properly, the report of District Probation Officer (in short D.P.O.), while deciding the bail application. He further submitted that the victim lived with the revisionist about three months, which shows that victim was a consenting party. Apart from it, according to provisions of Section 18(1)(g) of the Act of 2015, the juvenile in conflict with law can be sent to special home for a period not exceeding three years. In the present matter, even if it is presumed that juvenile has committed a crime, he cannot be kept in protection home for more than three years. The revisionist/juvenile already has spent about 2-1/2 years in judicial custody. He further submitted that the case of revisionist/juvenile does not fall under any of the exceptions provided in Section 12(1) of the Act of 2015. Learned Principal Magistrate, Juvenile Justice Board and the Appellate Court both have wrongly concluded that the release of the juvenile will bring the juvenile into the contact of the known criminals and that will expose the juvenile to moral, physical and psychological danger and will defeat the ends of justice.
6. Learned A.G.A. countered the submissions made by the learned counsel for the revisionist and submitted that the victim in her statement recorded under Section 164 Cr.P.C. has made allegations against the revisionist of committing rape on her, so the revision of the juvenile should be dismissed.
7. Considered the rival submissions and perused the record.
8. It is undisputed that revisionist/juvenile is in judicial custody for a period of about 2-1/2 years.
9. Revisionist was declared juvenile by Juvenile Justice Board, finding his age 12 years, 11 months and 5 days at the time of incident.
10. Section 12(1) of the Act of 2015 in this regard lays down as under :-
"12.Bail to a person who is apparently a child alleged to be in conflict with law,- (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 (2 of 1974) 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."
11. Thus, it is 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) expose the juvenile to moral, physical or psychological danger; or,
(iii) release of the juvenile would defeat the ends of justice.
12. In the present matter the Principal Magistrate of Juvenile Justice Board, came to the conclusion that if the juvenile/revisionist was released on bail then there is possibility of his coming in association of known criminals which will cause moral, physical and psychological danger to him, and ends of justice stands defeated.
13. The Appellate Court while confirming the order of the Principal Magistrate, Juvenile Justice Board has also accepted the conclusion given by the Principal Magistrate and dismissed the appeal.
14. Legal position is that, for a juvenile in conflict with law bail is the Rule. The bail application of a juvenile can be rejected exceptionally.
15. In the report of the D.P.O. available on record, which has been filed through supplementary affidavit, no criminal antecedents of juvenile has been mentioned. The family status is average. There is nothing against the juvenile in the report, so as to bring his case under the exceptions provided in proviso to Section 12(1) of the Act of 2015.
16. Considering the facts and circumstances of the case, it appears just to set aside the order dated 18.04.2019 passed by the Principal Magistrate, Juvenile Justice Board, Sultanpur as well as the judgment dated 30.05.2019 passed by the Appellate Court.
17. The Revision is allowed.
18. The order passed by Principal Magistrate, Juvenile Justice Board dated 18.04.2019 and judgment dated 30.05.2019 passed by Appellate Court are set-aside. The bail application made on behalf of the revisionist/juvenile through his mother is allowed.
19. Let the revisionist/juvenile (Vipin Mali) be released on bail in Case Crime No. 541 of 2018, under Sections 363, 366, 504, 506 IPC and Section 7/8 POCSO Act, Police Station Lambhua, District Sultanpur and be given in custody of his mother on her furnishing a personal bond and two solvent sureties each in the like amount to the satisfaction of the Principal Magistrate of Juvenile Justice Board, Sultanpur 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 she 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 Vipin Mali and his mother Smt. Pushpa Devi 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, Sultanpur on such periodical basis as the Juvenile Justice Board determines.
(v) The party shall file a computer generated copy of such order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(vii) The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 20.7.2021
Arun (Saroj Yadav, J.)
