Allahabad High Court
Mr X vs State Of U.P. And Another on 2 August, 2023
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
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Neutral Citation No. - 2023:AHC:154097
Court No. - 80
Case :- CRIMINAL REVISION No. - 2151 of 2021
Revisionist :- Mr X
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Upendra Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Subhash Chandra Sharma,J.
Heard Sri Anil Srivastava Senior Advocate assisted by Mr Ram Bahadur Advocate learned counsel for the revisionist, Sri Chandra Narayan Mishra learned counsel for the opposite party as well as learned A.G.A. for the State and perused the record.
The present criminal revision has been preferred by the revisionist through his mother with a prayer to allow this revision and set aside the judgment and order dated 06.08.2021 passed by learned Additional District & Sessions Judge (Rape/ POCSO Act), Kanpur Dehat in Criminal Appeal No. 34 of 2021 as well as order dated 13.07.2021 passed by Principal Magistrate Juvenile Justice Board, Kanpur Dehat. Further prayed to release the revisionist on bail in Case Crime No. 73 of 2021 under Section 376 AB I.P.C. and 5M/6 POCSO Act, 2012 Police Station Rura Kanpur Dehat, District Kanpur Dehat.
It is submitted by learned counsel for the revisionist that in this case the delinquent was aged about 12 years at the time of alleged incident. It is further submitted that as per allegation in F.I.R. the delinquent is said to have committed rape with the victim at the instance of his father. Both were named in the F.I.R. It is unnatural to say that a son will commit rape with the victim at the instance of his father or a father will incite his son to commit rape with a girl. It is further submitted that during medical examination injuries were found on the person of the victim who was aged about 9 years. It is further submitted that no any injury was found on the private part of the victim except torned hymen and bleeding which can be on account of some other reason. No any sperm was found on the clothes of the victim or of the delinquent to suggest that sexual intercourse was committed by him. It is further submitted that there is nothing adverse against the interest of the delinquent in the report submitted by D.P.O.
It is further submitted that the learned J.J. Board as well as learned appellate did not consider the tender age of the delinquent and also the provisions as contained u/s 12 of the Juvenile Justice Act had not been considered by the Juvenile Justice Board even the report submitted by Probation Officer was also not considered. The appellate court has also not considered all these facts but rejected the appeal without applying its judicial mind and considering the law as contained u/s 12 of the aforesaid Act. He is in Child Care Home since 08.03.2021 i.e. more than two years and his psychology is being affected adversely, therefore, requested to set aside orders passed by the J.J. Board as well as appellate court and allow the criminal revision.
Learned counsel for the opposite party as well as learned A.G.A. opposed the prayer as aforesaid and urged that the victim was of tender age at the time of alleged incident which was committed by the delinquent with her and which was supported with medical report and also the statement made by the victim herself. In this regard the order passed by the learned J.J. Board as well as learned appellate court cannot be said to be unlawful, therefore, he cannot be said to be entitled for bail and revision, being devoid of merit, is liable to be dismissed.
Considering the facts and circumstances of the case, submission made by learned counsel for both the parties as well as learned A.G.A. for the State, the time delinquent remained in Child Care Home and the tender age of the victim and also of the delinquent, perusal of record, the provisions as contained u/s 12 of Juvenile Justice Act, the report submitted by the Probation Officer, it appears that Juvenile Justice Board as well as the appellate court had not considered the relevant provisions and the material on record in well manner but passed the orders without applying their judicial mind. In this way, there appears ground in this revision and the orders passed by the Juvenile Justice Board as well as learned appellate court are liable to be set aside.
Accordingly, the orders passed by Juvenile Justice Board dated 13.07.2021 and the appellate court dated 06.08.2021 are, hereby, set aside and present criminal revision is hereby, allowed.
It is directed that delinquent/applicant be released on bail on executing person bond by the revisionist ( mother of the delinquent) and two sureties each in the like amount to the satisfaction of the Juvenile Justice Board concerned on following conditions :-
(i) The revisionist/ mother will furnish an undertaking that upon release on bail the revisionist will not be permitted to go 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 repeat the offence.
(ii) The revisionist/ mother will further furnish an undertaking to the effect that the juvenile will pursue his study at the appropriate level which he would be encouraged to do besides other constructive activities and not be allowed to waste his time in unproductive and excessive recreational pursuits.
(iii) Juvenile and the revisionist/ mother will report to the Probation Officer on the first Monday of every calendar month.
(iv) The Probation Officer will keep a strict vigil on the activities of the juvenile and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board concerned on such a periodical basis as the Juvenile Justice Board may determine.
Order Date :- 2.8.2023
Suraj Srivastav
