Faisal (Minor) Thru. His Father ... vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 14317 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 27
 

 
Case :- CRIMINAL REVISION No. - 244 of 2022
 
Revisionist :- Faisal (Minor) Thru. His Father Ali Husain @ Kallu
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lucknow And 2 Others
 
Counsel for Revisionist :- Smriti
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

Heard Mrs. Smriti, learned counsel for the revisionist, Sri Alok Saran, learned A.G.A. for the State and perused the entire record.

The instant Criminal Revision is preferred against the impugned judgment and order dated 09.03.2022 passed by the learned Special Judge POCSO Act/ Additional Sessions Judge, Court No.15, Hardoi in Criminal Appeal No.11 of 2022 (Faisal vs. State of U.P. and another) arising out of F.I.R./ Case Crime No.493 of 2021, under Sections 376D, 504, 506 I.P.C. and Sections 5/6 POCSO Act, Police Station Sandila, District Hardoi as well as order dated 04.03.2022 passed by the Juvenile Justice Board, Hardoi arising out of F.I.R./ Case Crime No.493 of 2021, under Sections 376D, 504, 506 I.P.C. and Sections 5/6 POCSO Act, Police Station Sandila, District Hardoi.

From the perusal of report dated 14.04.2022 furnished by the learned Chief Judicial Magistrate, Hardoi, it transpires that the notice has been served upon opposite party No.2. However, no one has appeared on behalf of opposite party No.2.

It has been submitted by learned counsel for the revisionist that the revisionist is innocent who has falsely been implicated in the present case. She has further submitted that the revisionist hails from a family who have no criminal history. Her further submission is that both the courts below have been swayed by the alleged seriousness of the offence, whereas for the purposes of enlarging the revisionist on bail under proviso to Section 12(1) of The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as Act of 2015) is significant, which has been overlooked by the court below, therefore, impugned judgment and orders are not sustainable in the eyes of law. She has further submitted that revisionist is confined in the Children Reformatory Home since 06.12.2021. The only three years institutional incarceration permissible for a juvenile, under Section 18(1)(g) of Act of 2015.

In particular, the learned counsel for the revisionist has drawn attention of the Court to the social investigation report dated 07.02.2022, which clearly shows that the revisionist belongs to a poor family with no criminal record and no disentitling facts.

Per contra, learned A.G.A. submits that the revisionist though a juvenile in conflict with law, is a budding criminal. He is involved in an offence which has serious adverse societal impact. His further submission is that upon his release, there is every likelihood that he will come into association with known criminals, that would lead to the revisionist facing physical, psychological and moral danger. It is, therefore, submitted by the learned A.G.A. that the revisionist's case falls under the disentitling contingencies postulated under the proviso to Section 12(1) of the Act of 2015. However, he could not dispute the fact that the social investigation report dated 07.02.2022 does not disclose existence of any disentitling facts.

This Court has keenly considered the rival submissions and perused the record.

The revisionist was declared a juvenile by the Juvenile Justice Board in the aforesaid case. The revisionist is aged about 11 years 09 Months and 29 days on the date of occurrence and this fact remains undisputed.

Bail can be denied to a juvenile in the circumstances enumerated under the proviso to Section 12(1) of the Act of 2015. Section 12 reads as under:

"12. Bail to a person who is apparently a child alleged to be in conflict with law.-

(1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person:

Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

(2) When such person having been apprehended is not released on bail under sub-section (1) by the officer in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.

(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.

(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."

From the perusal of the F.I.R. and the overall facts and circumstances of the present case, it is revealed that the revisionist had no criminal history prior to the present case. His family members too have no criminal history. A perusal of the social investigation report dated 07.02.2022 also clearly projects that the revisionist belongs to a poor family with no criminal record and no disentitling facts. The entire report does not indicate any credible fact or factor which brings the case of the revisionist in any of the three disentiteling reasons postulated under the proviso to Section 12(1) of the Act of 2015.

A perusal of the impugned orders passed by the Juvenile Justice Board and court below show that the both courts below have been swayed by the fact that the nature of offence is heinous and therefore, they have concluded that the case of revisionist falls in the three disentitling exceptions postulated under under the proviso to Section 12(1) of the Act of 2015. This Court in the case of Shiv Kumar alias Sadhu vs. State of U.P. 2010 (68) ACC 616 (LB) has held that the gravity of the offence is not relevant consideration for refusing grant of bail to the juvenile. There is nothing on record which substantiates the aforesaid findings/conclusion of the courts below. The aforesaid finding of the courts below is thus, based on surmises and conjunctures only.

In view of the overall facts and circumstances of the case and the mandate of the proviso to Section 12(1) of the Act of 2015, this Court is of the considered opinion that there is nothing on record on the basis of which it can be inferred that the revisionist's case is one that falls into any of three exceptions postulated under the proviso to Section 12(1) of the Act of 2015. The courts below have acted with material irregularity.

The instant revision, thus, deserves to succeed for the reasons mentioned herein above.

In the result, the instant criminal revision succeeds and is allowed. The impugned judgment and order dated 09.03.2022 passed by the learned Special Judge POCSO Act/ Additional Sessions Judge, Court No.15, Hardoi in Criminal Appeal No.11 of 2022 (Faisal vs. State of U.P. and another) arising out of F.I.R./ Case Crime No.493 of 2021, under Sections 376D, 504, 506 I.P.C. and Sections 5/6 POCSO Act, Police Station Sandila, District Hardoi as well as order dated 04.03.2022 passed by the Juvenile Justice Board, Hardoi arising out of F.I.R./ Case Crime No.493 of 2021, under Sections 376D, 504, 506 I.P.C. and Sections 5/6 POCSO Act, Police Station Sandila, District Hardoi, are hereby set aside and reversed. The bail application of the revisionist stands allowed.

Let the revisionist, Faisal (minor) be released on bail in the aforesaid case upon his natural guardian father furnishing a personal bond with two solvent sureties of his relatives in the like amount to the satisfaction of the Juvenile Justice Board, Hardoi subject to the following conditions:

(i) that the natural guardian father 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 father will ensure that the juvenile will not repeat the offence.

(ii) The revisionist and his natural guardian father will report to the District Probation Officer, Hardoi on the first Monday of every calendar month, commencing with the first Monday of November, 2022 and if during any calendar month the first Monday falls on a holiday, then on the following working day.

(iii) 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, Hardoi on such periodical basis as the Juvenile Justice Board may determine.

(Ajai Kumar Srivastava-I, J.)

Order Date :- 19.10.2022/ cks/-