Allahabad High Court
X vs State Of U.P. And 3 Others on 16 December, 2022
Bench: Jyotsna Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 91
Case :- CRIMINAL REVISION No. - 1485 of 2022
Revisionist :- X
Opposite Party :- State Of U.P. And 3 Others
Counsel for Revisionist :- Sapan Kumar Singh
Counsel for Opposite Party :- G.A.,Manvendra Dixit
Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Sapan Kr. Singh, learned counsel for the revisionist as well as learned AGA for the State and perused the record. None is present for the opposite party No.2.
2. This criminal revision has been filed for setting aside the judgment and order dated 7.2.2022 passed by Principal Magistrate Juvenile Justice Board, Gorakhpur and order dated 14.3.2022 passed by Addl. District and Special Sessions Judge (POCSO Act)/ Gorakhpur, in Criminal Appeal No. 34 of 2022 affirming the order of J. J. Board declining bail to the juvenile in case crime No. 642 of 2021, under Sections 376 I.P.C. and 3/4 POCSO Act, P.S. Cantt., District Gorakhpur.
3. As per the prosecution case, an F.I.R. was lodged by the mother of the victim (the minor girl aged about 6 years) with the allegation that the revisionist-juvenile enticed away her daughter and attempted to sexually ravish her. The victim's mother found her daughter returning crying loudly and, therefore, asked as to what happened, the girl disclosed the incident to her mother. The mother complained to nearby Police Chowki whereupon the Police called both the sides and got a compromise paper written there. She waited for suitable action to be taken against the juvenile but not action was taken, therefore, she lodged the instant F.I.R. The statements of the witnesses including the victim were recorded. Her mother refused her medical examination. After completion of investigation, charge sheet was submitted u/s 376 I.P.C. and 3/4 POCSO Act. Finding the accused a minor, he was produced before the J.J. Board. In his age determination inquiry he was found aged 16 years 6 months and 25 days on the date of occurrence. His bail application was dismissed by the J.J. Board. The appeal filed challenging the order of the J.J. Board also came to be dismissed. Now the minor revisionist is before this Court through his natural guardian/mother challenging both the aforesaid orders u/s 102 of J.J. Act, 2015.
4. It is contended on behalf of the revisionist that the court below did not consider the provisions of Section 12(1) of J.J. Act, 2015 and its proviso in right perspective and declined bail to him without considering other relevant material available on record. There was absolutely no evidence to prima facie make out a case u/s 376 I.P.C. against him as is very evident from the contents of the F.I.R. and the statement given by her mother u/s 161 Cr.P.C. The social investigation report did not reveal anything adverse to the conduct and character of the juvenile. The statement given by the victim, at later stages of the investigation u/s 161 and 164 Cr.P.C., have been in fact given as a result of tutoring as she was just a minor girl of age 6 years. No injury of any kind was found on the person of the victim. The juvenile is deaf and dumb and it will not be appropriate to keep him in continued detention in the observation home for long as he needs support of his family. He has already been there for the last one year.
5. I went through the impugned orders. It appears that the J.J. Board declined bail to the juvenile on the basis of presumptions and probabilities. The appellate court, though affirmed the order of the J.J. Board, however, it also took into consideration the nature of the case and the merits of the matter observing that the victim, in her statement, has supported the allegations of sexually assaulting her. These facts can not simply be glossed over that initially the F.I.R. was lodged u/s 376 I.P.C. read with Section 511 I.P.C. The victim's mother, in her statement u/s 161 Cr.P.C., did not state that her daughter was sexually assaulted. However, the statements, given at later stages, mention that an offence u/s 376 I.P.C. actually took place and not merely an offence u/s 376 read with 511 I.P.C. It is said that the revisionist/minor was implicated falsely in this case. He has, as per the report of the D.P.O., no criminal history and no tendencies as such. In fact the report of the D.P.O. suggests in opposite direction and it says that there was a tiff which occurred at a local shop on the point of buying some article and the girl was merely held by her hand and was dragged and put aside but her family members added certain facts and brought the matter within the definition of Section 376 I.P.C. Admittedly, the juvenile is a deaf and dumb boy, aged about 16 years. There was absolutely no material before the J.J. Board or the appellate court for drawing the conclusion that in case he is released on bail, he may come in association with any criminal or that he may be put to moral, physical or psychological danger or that his release may defeat the ends of justice.
6. In view of the above, especially, in view of the period of incarceration already undergone, the revision is allowed. The judgment and order dated 7.2.2022 passed by Principal Magistrate Juvenile Justice Board, Gorakhpur and order dated 14.3.2022 passed by Addl. District and Special Sessions Judge (POCSO Act)/ Gorakhpur, are hereby set aside.
7. Let the revisionist, minor "X" through his natural guardian/mother, be released on bail in Case Crime No. 642 of 2021, under Sections 376 I.P.C. and 3/4 POCSO Act, P.S. Cantt., District Gorakhpur. Upon his mother furnishing a personal bond with two solvent sureties of her 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/mother 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.
8. 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 :- 16.12.2022
Vandana
