Allahabad High Court
Shubham Chaubey(Minor) vs State Of U.P. And Another on 15 December, 2022
Bench: Jyotsna Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 91
Case :- CRIMINAL REVISION No. - 3437 of 2021
Revisionist :- 'X' (Minor)
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Pawankumar Dubey,Sandeep Kumar Tiwari,Saurabh Kumar Pandey
Counsel for Opposite Party :- G.A.,Satya Prakash Singh
Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard learned counsel for the revisionist, Sri S.P. Singh, learned counsel for the opposite party No.2 as well as learned A.G.A. for the State of U.P. and perused the record.
2. It appears that name of the revisionist-juvenile has been disclosed in the memo of revision. This fault from the side of revisionist escaped detection by the Registry. The concerned officer of the registry is directed to delete the name of the revisionist-minor from the title of the revision as fed and shown in the data on website and represent him as "Minor through guardian & father Sri Vinod Kumar Chaubey".
3. This criminal revision has been filed challenging the order dated 17.9.2021 & 11.10.2021 passed by the Juvenile Justice Board, Azamgarh and further challenging the order dated 3.11.2021 passed by the Special Judge (POCSO Act), Azamgarh in Criminal Appeal No. 59 of 2021 (Shubham Chaubey vs. State and another) affirming the order of the Juvenile Justice Board declining bail to the juvenile in criminal case arising out of Case Crime No. 261 of 2021 under Section 363, 366, 376D, 506, 328 I.P.C. and 5/6 POCSO Act, Police Station Kotwali, District-Azamgarh.
4. As per the prosecution case, the minor daughter of the informant was found missing from her house on 23.08.2021 at about 11.30 am; the family members tried to search for her and suspected that another minor, (hereinafter addressed as 'Y' for the purpose of not disclosing his name) has enticed her away; the informant also expressed suspicion on his two companions, who too were minor as having hand in this episode; An FIR was lodged on same day and the girl was recovered 2 days thereafter; the statement of the girl was recorded under Sections 161 and 164 Cr.P.C.; she was medically examined; the present minor was apprehended and produced before the Juvenile Justice Board; the Juvenile Justice Board after going through the social investigation report, rejected his bail application; the appeal filed on his behalf was also dismissed by the appellate Court and now the juvenile is before this Court through his natural guardian/father under Section 102 of the Juvenile Justice Act, 2015.
5. It is contended on behalf of the revisionist that the impugned orders have been passed ignoring the principles of law, as applicable in the matters relating to bail to the juvenile and further ignoring the mandate of Section 12(1) of the Juvenile Justice Act, 2015; the courts below have passed the impugned orders in an arbitrary manner and have drawn conclusions without having sufficient material before them; the court below altogether ignored certain very material fact which belies the prosecution theory of commission of rape and administration of some intoxicating substance and forcible sexual assault on the victim; the facts were otherwise in fact the victim eloped with the minor 'Y' (not the present revisionist) on her own, out of her own free will and consent as they had a long relationship between them as is clearly stated by mother of the victim in her statement under Section 161 Cr.P.C. In fact, no case is made out against the present revisionist; Moveover, there was nothing in the social investigation which can be taken as adverse to his conduct or his character; the people of the locality did not express any negative opinion about him; the juvenile has no criminal history or criminal tendencies and he is in detention since last more than 1 year and 4 months now since 28.8.2021.
6. I went through the impugned order of the Juvenile Justice Board as well as the appellate Court. In my view, there has not been any real material before the court below for drawing inferences so as to bring this case within the restrictive confines of proviso to Section 12(1) of the Juvenile Justice Act, 2015. This is not disputed in the statement given under Sections 161 and 164 Cr.P.C. there is variance on material points; initially the victim had imputed only vague allegations against the named three persons and stated that it was the minor 'Y' whom she had accompanied from her house; The mother of the victim has given certain statements disclosing that this fact come into her knowledge that she had been in contact with the minor 'Y', when she opened the chat in the mobile. The present revisionist has been found aged marginally above 13 years and the victim has been found aged between 16 to 18 years by the report of the C.M.O. The social investigation report mentions nothing adverse as far as conduct or character of the present revisionist is concerned. He has no criminal history and is in detention since last more than 1 year and 4 months that is more than one third of the period of detention permissible under the provision of J.J. Act, 2015 in case he is convicted. In my view, the impugned orders are not sustainable in the eyes of law as inferences bringing this case within the scope of proviso to Section 12(1) of the J.J. Act, 2015 have been drawn without substantive material before the court concerned.
7. In view of the above, the revision is allowed. The judgment and order dated 3.11.2021 passed by the Special Judge (POCSO Act), Azamgarh and orders dated 17.9.2021 & 11.10.2021 passed by the Juvenile Justice Board, Azamgarh, are hereby set aside.
8. Let the revisionist, 'X' (minor) through his guardian/father be released on bail in Case Crime No. 261 of 2021 under Section 363, 366, 376D, 506, 328 IPC and 5/6 POCSO Act, Police Station Kotwali, District-Azamgarh upon his guardian furnishing a personal bond with two solvent sureties of her relatives, each in the like amount to the satisfaction of the Juvenile Justice Board, Azamgarh subject to the following conditions:
(i) that the guardian 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 guardian 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.
9. 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 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 :- 15.12.2022
Vandana
Note-copy of the order be sent to concerned office of the Registry for immediate compliance of direction given in para-2 of the order.
