Anshu @ Mohd Riyaz vs State Of U.P. And Another
2022 Latest Caselaw 19843 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 91
 

 
Case :- CRIMINAL REVISION No. - 3591 of 2021
 

 
Revisionist :- "X " (Minor)
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Sanjeev Kumar Singh
 
Counsel for Opposite Party :- G.A.,Arvind Prabodh Dubey
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

Order on Criminal Misc. (Amendment) Application No.01 of 2022

Heard Sri Sanjeev Kumar Singh, learned counsel for the applicant-revisionist.

Amendment application has been moved with the prayer to amend the title of the revision deleting the name of the juvenile and representing him with alphabet "X" minor.

Sufficient ground is shown in the affidavit filed in support of the amendment application.

The amendment application is allowed.

Let amendment be carried out immediately.

Concerned Section of the registry is directed to correct the cause list and the data on Website accordingly after amendment.

Order on Criminal Revision

01. Heard Sri Sanjeev Kumar Singh, learned counsel for the revisionist, Sri Arvind Prabodh Dubey, learned counsel for opposite party no. 2 and Smt. Arti Agarwal, learned AGA for the State and perused the record.

02. This criminal revision has been filed for setting aside the judgment and order dated 13.10.2021 passed by Principal Magistrate Juvenile Justice Board, Gorakhpur and order dated 24.11.2021 passed by Sessions Judge, Gorakhpur in Criminal Appeal No.121 of 2021 affirming the order of J. J. Board declining bail to the juvenile in case crime no.107 of 2021, under Section 376 I.P.C. P.S. Rajghat, District Gorakhpur.

03. As per prosecution case, an F.I.R. was lodged by the victim herself under Sections 328, 376 and 120-B I.P.C. alleging that one Rehana, a distant relative, conspired and sent her with the juvenile accused to visit a majar. She went with the juvenile there and stayed in a room. She was administered some intoxicating substance by the accused and was sexually assaulted by him. She came to know of the incident next morning. A few days thereafter when she coaxed him, he brought her back to her house on 29.04.2021 and fled away. Her statement under Section 161 Cr.P.C. was recorded where she supported the version of the F.I.R.; she disclosed the incident to juvenile's grand mother; however, his relatives and Rehana were declining to solemnize the marriage between the two; she was medically examined; no external or internal injuries were found on her person; no spermatozoa was found in the vaginal slides. She narrated the same version in her statement under Section 164 Cr.P.C..

04. Finding the accused a minor, he was produced before the J.J.Board where his age determination enquiry was conducted. He was found aged 17 years and seven months. His bail application was rejected by J.J.Board. The appeal filed on behalf of the minor also came to be dismissed by order dated 24.11.2021. Now the minor is before this Court under Section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 through his natural guardian/father.

05. It is contended on behalf of the revisionist that besides ignoring broader principles of law applicable in the matters of bail to the juvenile and ignoring the mandate of Section 12 (1) of J.J. Act, several other material facts pertaining to the circumstances of the juvenile and pertaining to the case have altogether been ignored. The courts below did not consider the report of the District Probation Officer which mentioned nothing adverse against his character or conduct. The orders have been passed on the basis of presumptions and probabilities. Therefore, the impugned orders are not sustainable in the eyes of law.

06. I went through both the orders. It appears that there was no substantive material before the J.J.Board or before the appellate court to draw upon a conclusion as has been drawn by them bringing this case within the restrictive confines of proviso to Section 12 (1) of J.J.Act,2015. It appears that some inferences have been drawn on the basis of some of the observations mentioned in the social investigation report which, in my view, is not sufficient to bring the case within scope of proviso to Section 12(1) of J.J.Act.

07. My attention has specifically been drawn to the statement given by the victim during investigation before the Doctor wherein it appears to have been stated by her that she had a relationship since five months before the incident and that they wanted to marry each other. However, their families did not give consent for the marriage and that the juvenile has also declined to marry her. In these circumstances, the F.I.R. got lodged. It is argued that from the evidence on record, no case is made out against the juvenile.

08. Admittedly, the juvenile has no criminal history and that his age has been found below 18 years while the age of the victim has been found between 19-20 years as per her educational certificate and medical report. In my view, there is no material to suggest that in case he is released on bail, the ends of justice shall be defeated. Further there is no material to suggest that he may associate with persons of criminal antecedents or that he may be put to moral, physical or psychological danger.

09. In view of the above, especially, in view of the period of incarceration of almost one and half years already undergone, the revision is allowed. The judgment and order dated 13.10.2021 passed by Principal Magistrate Juvenile Justice Board, Gorakhpur and order dated 24.11.2021 passed by Sessions Judge, Gorakhpur are hereby set aside.

10. Let the revisionist, minor "X' through his natural guardian/father Mohd. Aurangjeb @ Juganu, resident of Turkmanpur, P.S. Rajghat, District Gorakhpur be released on bail in Case Crime No.107 of 2021, under Section 376 I.P.C. P.S. Rajghat, District Gorakhpur upon his father Mohd. Aurangjeb @ Juganu furnishing a personal bond with two solvent sureties of his relatives, each in the like amount to the satisfaction of the Juvenile Justice Board, Gorakhpur subject to the following conditions:

(i) that the natural guardian/father Mohd. Aurangjeb @ Juganu 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 mother will ensure that the juvenile will not indulge in any criminal activity;

(ii) The revisionist shall not tamper with the evidence or threaten the witnesses;

(iii) The revisionist through guardian shall also 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;

(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, Gorakhpur on such periodical basis as the Juvenile Justice Board may determine.

11. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court/J.J.Board shall be absolutely free to arrive at its independent conclusions on the basis of evidence led, uninfluenced by any finding or observation whatsoever in this order.

Order Date :- 5.12.2022

Asha