Allahabad High Court
X X Minor vs State Of U.P.And 3 Others on 16 September, 2022
Bench: Jyotsna Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 91
Case :- CRIMINAL REVISION No. - 1058 of 2022
Revisionist :- X X Minor
Opposite Party :- State Of U.P.And 3 Others
Counsel for Revisionist :- Sanjeev Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Sanjeev Kumar Singh, learned counsel for the revisionist and learned A.G.A. for the State-respondent no.1. None appears for the informant-respondent no.2 despite sufficient service of notice.
2. This criminal revision has been filed with the prayer to set aside the order dated 19.01.2022 passed by Juvenile Justice Board, Gorakhpur and order dated 07.02.2022 passed by Additional District & Special Judge, POCSO Act, Gorakhpur in Criminal Appeal No.18 of 2022, declining bail to the juvenile arising out of case crime no.383 of 2021, under Sections 363, 328, 376D I.P.C. and Section 5/6 POCSO Act and Section 3(2)V S.C.&S.T. Act, P.S. Pipraich, District Gorakhpur.
3. It is alleged in the F.I.R. lodged by the victim herself that when she was playing near a water canal in her village, three persons including the present juvenile, belonging to her maternal uncle's village i.e. village Madapar, P.S. Khorabar, District Gorakhpur coaxed her and abducted her on a motorcycle and sexually assaulted her after administering some intoxicating substance to her on 21.11.2021 at about 5.00 P.M. She was abandoned next day morning at 9.00 A.M. on 22.11.2021 at Rajahi Camp, Nishad Samiyana House, P.S.Khorbar, District Gorakhpur. From there she came to her house and disclosed everything to her parents.
4. Finding one of the accused persons juvenile, the matter was placed before the J.J.Board where determination of his age took place and he was found to be a little over 15 years and six months. His application for bail moved by his natural father and guardian was dismissed by order dated 19.01.2022. Against the above order the revisionist, through his father and guardian, preferred an appeal no.18 of 2022 before the Children Court. The same was dismissed and the order of the J. J. Board was affirmed. Aggrieved by the above two orders, the revisionist has come in criminal revision before this Court.
5. It is contended on behalf of the revisionist that both the courts below have completely ignored the mandatory provision of Section 12 of J. J. Act, 2015. It is also contended that relevant facts like age of the juvenile which was found to be below 16 years i.e. about 15 and half years, delay in lodging of F.I.R., age of the so called victim which was almost equal to the age of the juvenile, the doubtful statements of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C., the absence of any witness and inherent improbabilities of the incident were ignored. It is also contended that the juvenile has been found to be not entitled to bail and has been brought in the three exceptions as provided in proviso to clause 1 of Section 12 of J. J. Act without any ground whatsoever. The juvenile is in observation home since 03.01.2022.
6. I have perused the impugned orders. It appears that J. J. Board has rejected the bail application on the basis of report of the District Probation Officer only. On the other hand learned appellate court below has given a finding that release of juvenile shall expose him to moral, physical or psychological danger and that his release will defeat the ends of justice. It is not clear from the perusal of the impugned order dated 07.02.2022 that what was in fact the material before the appellate court to arrive at such a conclusion.
7. In my view, above order has been passed on the basis of mere opinions and not on substantial grounds. My attention has been drawn to certain facts including the fact that the victim and juvenile have been found to be of same age group. The F.I.R. has been lodged after delay of 12 days. No injury was found on the person of the victim. The victim in her statement under Section 161 Cr.P.C. said that present juvenile did nothing. However, later on she threw allegations on him in the statement under Section 164 Cr.P.C. The victim's statement recorded under Section 161 and 164 Cr.P.C. available on record imparts this case a different colour bringing the matter in a doubtful category. In my view, the court while excising the power under Section 12 of the J. J. Act and while giving a finding that matter came within three exceptions as provided under the Proviso to, Clasue-1 of Section 12 of the J. J. Act had no material to rely upon. In my view, merits of the matter cannot be ignored altogether while considering bail under the above provisions.
8. In view of the above, especially, in view of the period of incarceration already undergone, the revision is allowed. The judgment and order dated 19.01.2022 passed by Juvenile Justice Board, Gorakhpur and order dated 07.02.2022 passed by Additional District & Special Judge, POCSO Act, Gorakhpur are hereby set aside.
9. Let the revisionist, minor "XX' through his natural guardian/father Jainual Husain, resident of village Madapar, police station Khorabar, District Gorakhpur, be released on bail in case crime no.383 of 2021, under Sections 363, 328, 376D I.P.C. and Section 5/6 POCSO Act and Section 3(2)V S.C.&S.T. Act, P.S. Pipraich, District Gorakhpur upon his father Jainual Husain 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/father Jainual Husain 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.
Order Date :- 16.9.2022
Asha
