Burhan vs State Of U.P. And Another
2022 Latest Caselaw 6204 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 88
 

 
Case :- CRIMINAL REVISION No. - 675 of 2022
 
Revisionist :- Burhan
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Ajay Kumar Mishra
 
Counsel for Opposite Party :- G.A.,Umair Mahmood
 

 
Hon'ble Sanjay Kumar Singh,J.

Heard Mr. Ajay Kumar Mishra, learned counsel for the revisionist, learned Additional Government Advocate representing the State of U.P., Mr. Umair Mahmood, learned counsel for opposite party no. 2 and perused the record.

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 24.01.2022 passed by Additional Sessions Judge/Special Judge (POCSO Act), Bijnor in Criminal Appeal No. 65 of 2021 (Burhan Vs. State of U.P.) and against the order dated 22.11.2021 passed by Principal Magistrate, Juvenile Justice Board, Bijnor in Case No. 106 of 2021 (State of U.P. Vs. Burhan) arising out of Case Crime No. 136 of 2021, under Sections 363, 504, 506, 376, 323 IPC and Sections 3/4 POCSO Act, police station Badhapur, District Bijnor, whereby learned Juvenile Justice Board as well as learned Appellate Court refused the prayer of bail of accused-revisionist.

As per the prosecution case, in brief, complainant, who is father of the victim lodged first information report on 11.09.2021 with regard to an incident which took place on 01.09.2021 under Sections 363, 504, 506 IPC against the revisionist alleging inter alia that his daughter (victim) aged about 17 years was forcibly abducted by the revisionist when she had gone to attend call of nature. The first information report further alleges that when he went to make complaint to the house of the revisionist, his daughter was present there but on account of threat extended by the revisionist, he did not make complaint to the police against the revisionist.

It is argued by learned counsel for the revisionist that first information report has been lodged after 10 days of the alleged incident. In fact revisionist and victim were consenting party on the date of the incident dated 01.09.2021, as they belong to same locality. In medical examination report of the victim, her hymen was found old torn and healed. As per high school certificate of the victim, she was aged about 17 years and 04 months and on the date of the incident, age of the revisionist was 16 years and 07 months. Referring the statement of the victim, it is pointed out that she in her statement has also stated that revisionist has committed rape in presence of all the family members, which is not possible at all. Much emphasis has been given by contending that exaggerated allegation has been levelled against the revisionist under the pressure of the complainant.

Learned counsel for the revisionist assailing the impugned orders submits that the revisionist was a juvenile on the date of the alleged incident dated 01.09.2021 and he has been declared juvenile vide order dated 02.11.2021 of Juvenile Justice Board treating the age of revisionist as 16 years and 07 months on the date of alleged incident. It is next submitted that aforesaid order declaring the revisionist as juvenile has attained finality. It is also not disputed that the revisionist has remained confined in juvenile home since 12.09.2021.

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 is further being 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 Children) Act, 2015.

Learned Additional Government Advocate as well as learned counsel for opposite party no. 2 vehemently opposed the present revision. It has thus been submitted by them that merely because the revisionist is a juvenile it would not entitle him to bail without going into the gravity of the offence, 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 Children) 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 he being confined for long duration. Here, the revisionist has remained in juvenile home since 12.09.2021.

The Court has to see whether the opinion of 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 Court below are erroneous and cannot be sustained. The aforesaid impugned orders dated 24.01.2022 and 22.11.2021 are hereby set aside.

Accordingly, the present criminal revision is allowed.

Let the revisionist - Burhan involved in the aforesaid case crime be released on bail on furnishing a personal bond of his father, namely, Iliyas, 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 threaten the witnesses;

(ii) The revisionist through 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 :- 7.7.2022

Shubham