Allahabad High Court
Nasim Alias Kallu vs State Of U.P. And 2 Others on 19 September, 2022
Bench: Jyotsna Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 91
Case :- CRIMINAL REVISION No. - 3766 of 2021
Revisionist :- 'X'minor through his natural guardian/father Gaffar Khan
Opposite Party :- State Of U.P. And 2 Others
Counsel for Revisionist :- Shivakant
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Jyotsna Sharma,J.
01. 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 " 'X' Minor through guardian & father Gaffar Khan".
02. Heard Sri Shivakant, learned counsel for the revisionist and learned A.G.A. for the State and perused the record.
03. This criminal revision has been filed with the prayer to set aside the order of Juvenile Justice Board, Kanpur Nagar dated 17.09.2021 and order passed in Criminal Appeal No.92 of 2021 dated 06.10.2021 affirming the order of J.J.Board and declining the bail to juvenile arising out of case crime no.469 of 2021, under Section 363, 366, 346, 504, 506, 376, 120-B/34 I.P.C. and 3/4 POCSO Act and 3(2)5 and 3(1)Da, Dha of S.C.&S.T. Act, P.S.Chakeri, District Kanpur Nagar.
04. An F.I.R. has been lodged on 23.05.2021 at 17.36 hours alleging that on 07.05.2021 at about 4.00 A.M. in the morning when the informant's daughter aged about 16 years went to attend nature calls, out of her house, the juvenile s/o Maulana Gaffar Khan and his ally Akash s/o Ganga Prasad Yadav forcibly carried the victim on his motorcylce and confined her in a shop closed with shutter. From there she was carried to the house of sister of the juvenile where she was sexually assaulted by him. Thereafter the juvenile and his relatives named in the F.I.R. left her in her Buwa's house in pursuance of the conspiracy hatched by them. She returned to her home and the conspiracy hatched by the accused persons came into knowledge of the informant that they also wanted to convert her into to their religion.
05. The matter was investigated upon and finding the culprit, having main role a juvenile the matter was placed before the J. J. Board, Kanpur Nagar. Age determination proceedings took place and the present revisionist juvenile was found to be of the age of 17 years, nine months and 20 days on the date of the occurrence.
06. Bail application moved on behalf of the juvenile through his natural guardian/father was rejected by order dated 17.09.2021. The appeal arising out of that order was dismissed by order dated 06.10.2021 by Special Judge,POCSO Act/Additional Sessions Judge, court no.25, Kanpur Nagar. Aggrieved by above two orders, the juvenile has come in revision before this Court.
07. Contention on behalf of the revisionist is that the matter was doubtful from the very beginning as the incident which allegedly took place on 07.05.2021 the F.I.R., after much deliberation was lodged on 23.05.2021 i.e. after 16 days with concocted and improved version, though the victim was recovered much earlier. In the statement recorded under Section 161 Cr.P.C. the victim stated that all the accused persons, after the incident, took her to her house, however, she did not disclose anything about the incident as she was threatened by them. A video was filmed by them. Therefore, she did not dare to disclose anything. She, on specific questioning, denied that there has been any attempt to convert her into another religion. She has stated that when she reached the concerned police station she found juvenile there and she has also stated that she did not disclose the fact of sexual assault to anybody. It is contended that if her and informant's statement under Section 161 Cr.P.C. as also the statement under Section 164 Cr.P.C. are considered, the whole matter appears suspicious. It is contended that the matter can not be given a criminal colour and that F.I.R. has been lodged to unduly pressurize the accused side. This fact, in my view, cannot be ignored that the accused as well as the victim belong to same age group of 17 to 16 years approximately.
08. I have perused the impugned order. It appears that Juvenile Justice Board has given finding that case of the juvenile comes within category of three dis-entitling clause as given in proviso to Section 12 (1) of J.J.Act but without any sound reasoning and material before it.
09. Likewise it appears that appellate court simply disregarded the merits of the matter and arrived at a finding on the basis of conjectures without taking into consideration the material before the Court. In my view both the orders cannot be sustained in the eyes of law.
10. In view of the above, especially, in view of the period of incarceration already undergone, the revision is allowed. The judgment and order dated 17.09.2021 passed by the Juvenile Justice Board, Kanpur Nagar and order dated 06.10.2021 passed by Special Judge,POCSO Act/Additional Sessions Judge, court no.25, Kanpur Nagar are hereby set aside.
11. Let the revisionist, minor "X' through his natural guardian/father Gaffar Khan, resident of Maikupur Mawaiya, Police Station Chakeri, Kanpur Nagar be released on bail in case crime no.469 of 2021 (State vs. Nasim alias Kallu), under Section 363, 366, 346, 504, 506, 376, 120-B/34 I.P.C. and 3/4 POCSO Act and 3(2)5 and 3(1)Da, Dha of S.C.&S.T. Act, P.S.Chakeri, District Kanpur Nagar upon his father Gaffar Khan furnishing a personal bond with two solvent sureties of her relatives, each in the like amount to the satisfaction of the Juvenile Justice Board, Kanpur Nagar subject to the following conditions:
(i) that the natural guardian/ father Gaffar Khan 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 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, Kanpur Nagar on such periodical basis as the Juvenile Justice Board may determine.
Note-copy of the order be sent to concerned office of the Registry for immediate compliance of direction given in para-1 of the order.
Order Date :- 19.9.2022
Asha
