Birju @ Brijesh vs State Of U.P. And Another
2022 Latest Caselaw 9018 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 88
 

 
Case :- CRIMINAL REVISION No. - 179 of 2021
 

 
Revisionist :- Birju @ Brijesh
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Virendra Singh Parmar
 
Counsel for Opposite Party :- G.A.,Dev Prakash Sharma,Priyanka Devi
 

 
Hon'ble Sanjay Kumar Singh,J.

Heard learned counsel for the revisionist and learned Additional Government Advocate representing the State of U.P. and perused the record of the case.

The present criminal revision under Section 102 of Juvenile Justice (care and protection of children) Act, 2015 has been preferred against the judgment and order dated 24.12.2020 passed by Additional Sessions Judge/Special Judge (POCSO Act), Mahoba in Criminal Appeal No. 23 of 2020 (Birju @ Brijesh Vs. State of U.P.) under Section 101 of Juvenile Justice (Care and Protection of Children) Act, 2015, and against order dated 01.12.2020 passed by Principal Judge, Juvenile Justice Board, Mahoba in Case Crime No. 452 of 2020, under sections 363, 366, 376 I.P.C. and 4 of the Protection of Children from Sexual Offences Act, 2012, police station Kotwali, District Mahoba, whereby the learned Juvenile Justice Board as well as learned appellate court refused the prayer of bail of accused-revisionist.

As per the prosecution case, the informant who is the father of victim lodged an F.I.R. on 31.07.2020 regarding an incident which took place on 30.07.2020 against 4 persons, namely, Ashok, Anita, Birju (appellant) and Chhanga expressing suspicion upon them alleging inter-alia that on 30.07.2020 at about 2.00 AM in the night, his daughter has left her house without giving any information to the family members.

It is argued by learned counsel for the revisionist that the victim is aged about 16 years and she, in her statement recorded under Section 161 Cr.P.C., stated that on being annoyed by scolding of her father, she herself left her house and had gone with the appellant who is known to her for the last one year and there is also love affair between them.

Learned counsel for the revisionist assailing the impugned orders submits that the revisionist was a juvenile on the date of the alleged incident dated 30.07.2020 and he has been declared juvenile vide order dated 19.10.2020 of Additional Sessions Judge/Special Judge (POCSO Act), Mahoba treating the age of revisionist as 15 years 2 months and 25 days on the date of alleged incident. It is next submitted that aforesaid order declaring the revisionist as juvenile has attained finality because the same has not been challenged by the opposite party No.2. It is also not disputed that the revisionist has remained confined in juvenile home since 08.08.2020.

As to the offence alleged, it is submitted that the revisionist has falsely been implicated in the case with ulterior motive. In this regard, it is further stated that proper investigation was not conducted by the police and thus the revisionist had wrongly been charged with the offence.

It has been submitted that the Social Investigation Report filed in this case also does not raise any specific or strong objection against the revisionist being released and only general and unfounded objections and observation have been made therein. It has further been emphasized that the revisionist does not have any criminal antecedent to his credit. Lastly, it is submitted that there is no material on record for believing that the release of revisionist is likely to bring him into association with any known criminal or expose him to moral, psychological danger, therefore, aforesaid impugned orders are not sustainable and liable to be set aside and revisionist is entitled to be released on bail in view of Section 12 of Juvenile Justice (Care and Protection of Child) Act, 2015.

Learned Additional Government Advocate vehemently opposed the present revision. It has thus been submitted that merely because the revisionist is a juvenile, it would not entitle him to bail without going into the gravity of the offence and the nature of the crime. It is also contended that the bail sought for has been rightly refused in view of Section 12(1) of Juvenile Justice (Care and Protection of Child) Act, 2015.

Having considered the arguments so advanced by learned counsel for the parties, it is seen that while it is true that a juvenile offender is not entitled as of right to be enlarged on bail, irrespective of any other fact or circumstance, however, it also cannot be denied that in view of specific and special legislative intent and intervention, refusal of bail in the case of a juvenile may be made only for specific reasons and circumstance. Otherwise, a general legislative presumption does appear to exist under the scheme of the Act that the welfare of alleged juvenile offender would be better served without his being confined for long duration. Here, the revisionist has remained in juvenile home since 08.08.2020.

The Court has to see whether the opinion of the learned appellate Court as well as Juvenile Justice Board recorded in the impugned judgment and orders are in consonance with the provision of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 12 of the aforesaid Act lays down three contingencies in which bail could be refused to juvenile. They are:-

(1) if the release is likely to bring him into association with any known criminal, or

(2) expose him to moral, physical or psychological danger, or

(3) that his release would defeat the ends of justice.

Gravity of the offence has not been mentioned as a ground for rejection of bail in Section 12 of the aforesaid Act. Though the prayer for bail of the revisionist has been opposed by learned counsel for opposite parties, but could not demonstrate from the record that there existed any of the grounds on which bail application of a juvenile could be rejected keeping in view the provisions of Section 12 of the Juvenile Justice Act.

Considering the above, it appears that the findings recorded by the learned Courts below are erroneous and cannot be sustained. The aforesaid impugned orders dated 24.12.2020 and 01.12.2020 are hereby set aside.

Accordingly, the present criminal revision is allowed.

Let the revisionist Birju @ Brijesh, involved in the aforesaid case crime be released on bail on furnishing a personal bond of his father namely Kamlesh @ Ashok who is his natural guardian with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The revisionist shall not tamper with the evidence or extend threat to the witnesses;

(ii) The revisionist through his guardian shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law;

(iii) The revisionist through guardian shall remain present before the trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial Court may proceed against him under Section 229-A of the Indian Penal Code.

Order Date :- 3.8.2022

Nirmal Sinha