Anurag Mishra @ Kapil vs State Of U.P. And Another
2021 Latest Caselaw 6013 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 78
 

 
Case :- CRIMINAL REVISION No. - 178 of 2021
 
Revisionist :- Anurag Mishra @ Kapil
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Lal Mani Tripathi,Lal Mani Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shekhar Kumar Yadav,J.

Heard Mr Lal Mani Singh, learned counsel for the revisionist through Video-link, learned A.G.A. and also perused the record.

Notice has been served upon opposite party no. 2 personally as per report of CMM, Kanpur Nagar dated 09.02.2021 but none has appeared on behalf of the opposite party no. 2 nor any counter affidavit has been filed.

The present criminal revision has been filed against the Judgment and order dated 21.11.2020 passed by learned Special Judge, POCSO Act/ Addl. Sessions Judge, Court No. 25, Kanpur Nagar in Criminal Appeal No. 75 of 2020, whereby the appeal filed by the revisionist has been dismissed and for quashing the order dated 23.102020 passed by Principal Judge, Juvenile Justice Board, Kanpur Nagar whereby the bail application of the revisionist (Juvenile) has been rejected in Case Crime No. 82 of 2020, under Sections 376, 328, 384, 506 IPC and Section 3/4 of POCSO Act, P.S. Naubasta, District Kanpur Nagar.

As per prosecution version, revisionist frequently used to tease the minor daughter of complainant, who is alleged to be 17 years of age, in her way to school. It is alleged that on 17.05.2019, the revisionist is said to have enticed away her daughter to his home and gave her intoxicated cold drink and after drinking the said cold drink, she became unconscious and thereafter committed rape upon her in her inebriated condition and also took some photographs. It is further alleged that the revisionist took money from the victim after threatening her. Where-after, the complainant got her daughter admitted at Vanasthali Vidyapeeth, Rajasthan in Class XI but somehow, the revisionist arranged the mobile number of her daughter and started demand of money from her after flashing filthy messages and photographs. Fade up with these situations, daughter of the complainant consumed the mosquito liquid and after getting treatment, the victim came to her house and narrated all the incident to the informant. Thereafter, the FIR of the incident was lodged on 07.02.2020 against the revisionist under sections 328, 376, 384 IPC and Section 3/4 of POCSO Act at P.S. Naubasta, District Kanpur Nagar.

It is contended by learned counsel for the revisionist that the alleged incident said to have taken place on 17.5.2019 whereas the FIR was lodged on 7.2.2020 i.e. after a long delay of more than 9 months without there being any plausible explanation. It is further submitted that during medical examination, no injury visible on any part of the body and the doctor has opined that her hymen is old torned healed. It is further submitted that revisionist was declared as juvenile in conflict of law on 06.10.2020 but even that both the court below were failed to consider the special provision for bail to juvenile; there are contradiction in the version of the F.I.R. and the statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C.; the prosecution story does not support the medical report; only gravity of the offence is not relevant consideration for refusing grant of bail to juvenile as has been envisaged in Section 12 of the Juvenile Justice (Care and Protection) Act and it has been consistent view of various courts; the Board or the lower appellate court has not given any reason or material on record which shows that release of the juvenile is likely to bring him into association with any known criminal or expose him to moral physical or psychological danger, that his release would defeat the ends of justice; there is no criminal history of the applicant and there is no hope of early conclusion of the trial. The revisionist is in jail since 09.02.2020.

It is next contended that revisionist has been falsely implicated by the police. It is further contended by learned counsel for the revisionist that bail application of the Juvenile has been rejected primarily taking into account the gravity of the offence alleged to have been committed without there being any substance. It is contended by learned counsel for the revisionist that the revisionist was juvenile i.e. 16 years, 08 months and 15 days on the date of incident i.e. on 17.5.2019. It is further argued that once the person has already been declared Juvenile, his bail cannot be rejected on account of gravity of offence committed, if there is no other reason as required for not granting bail.

It is next argued on behalf of revisionist that there exists no ground as specified in Section 12 of Juvenile Justice (Care and Protection) Act for rejection of bail application. He further submits that the orders passed by the appellate court as well as the Juvenile Justice Board do not disclose any concrete reason for concluding that release of revisionist would bring him in association with bad elements of society and his release would expose him morally, physically and psychologically. He further submitted that the report of the District Probation Officer discloses that the revisionist has no criminal tendency nor has any criminal history on record and the said fact has not been considered by the Juvenile Justice Board.

Learned A.G.A. opposed the bail prayer.

Gravity of the offence has not been mentioned as a ground to reject the bail. It is not a relevant factor while considering to grant bail to the juvenile. It has been so held by this Court in the cases of Shiv Kumar alias Sadhu Vs. State of U.P. 2010 (68) ACC 616(LB); Abdullah @ Abdul Hassan Vs. State of U.P. and Others [2015 (90) ACC 204]; Maroof Vs. State of U.P. and Another [2015 (6) ADJ 203]; Criminal Revision No. 112 of 2015 (Suraj @ Ashok Sukla Thru. Father Mahendra Shukla Vs. State of U.P. and Another) and Amit Kumar Vs. State of U.P. 2010(71) ACC 209 decided on 02.07.2015.

It is evident that there is no satisfactory material on record to conclude that the release of juvenile would expose him to moral, physical or psychological danger or that it would defeat the ends of justice or would bring him into association of known criminals. In the circumstances, I am of the opinion that revisionist deserves to be released on bail to his parents or legal guardians in absence thereof.

Accordingly, this criminal revision is allowed, impugned judgments/orders passed by the courts below are hereby set aside.

Let revisionist Anurag Mishra @ Kapil (minor) be enlarged on bail in Case Crime No. 82 of 2020, under Sections 376, 328, 384, 506 IPC and Section 3/4 of POCSO Act, P.S. Naubasta, District Kanpur Nagar, on furnishing a personal bond by either of his parents and in absence by his legal guardians two sureties each in the like amount to the satisfaction of the Court concerned and subject to following conditions:-

(i) That the natural guardian of the revisionist will 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 allowed to be exposed to any moral, physical or psychological danger and further that the natural guardian will ensure that the juvenile will not repeat the offence.

(ii) The revisionist and his natural guardian will report to the District Probation Officer on the first Wednesday of every calendar month commencing with the first Wednesday of December, 2020 and if during any calendar month the first Wednesday falls on a holiday, then on the next following working day.

(iii) 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 concerned on such periodical basis as the Juvenile Justice Board may determine.

(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or the certified copy issued by the Registry of the High Court, Allahabad.

(v) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

(vi) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

However, considering the peculiar facts and circumstances of the case, the court below is directed to make every possible endeavour to conclude the trial of the aforesaid case within a period of four months from today without granting unnecessary adjournments to either of the parties.

Order Date :- 4.6.2021

RavindraKSingh