Allahabad High Court
Ramesh @ Motu (Minor) vs State Of U.P.And Another on 7 February, 2023
Bench: Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 70
Case :- CRIMINAL REVISION No. - 736 of 2021
Revisionist :- Ramesh @ Motu (Minor)
Opposite Party :- State Of U.P.And Another
Counsel for Revisionist :- Hemant Kumar Dubey,Hanuman Deen Verma
Counsel for Opposite Party :- G.A.
Hon'ble Shiv Shanker Prasad,J.
Heard the learned counsel for the revisionist, learned A.G.A. for the state and perused the record.
The present revision under Section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 has been instituted against the judgment and order dated 22nd January, 2021 passed by the Additional Sessions Judge/Special Judge (POCSO Act), Bijnor in Criminal Appeal No. 02 of 2021 (Ramesh @ Motu Vs. State of U.P.) which was preferred against the order dated 5th January, 2021 passed by the Juvenile Justice Board, Sant Kabir Nagar in Case No. 44 of 2020, arising out of Case Crime No. 274 of 2020, under Sections 376, 511 I.P.C. and Sections 7/8 POCSO Act, Police Station-Mehdawal, District-Sant Kabir Nagar, rejecting the bail application of the accused-revisionist. The learned appellate court has also rejected the appeal considering the heniousness of the offence and taking into consideration the order passed by the Juvenile Justice Board.
In short compass, the facts of the case as unfolded by the prosecution are that informant Mohd. Haddish lodged the first information report on 23rd September, 2020 at 02:32p.m. against the accused-revisionist by name with regard alleging therein that on 22nd September, 2020 at 07:30 p.m. (evening), when the daughter of the informant (for short "victim") was playing at the roof of her house, the accused-revisionist came there and started dirty talking her and also tried to rape her. It is further alleged that on raising alarm of victim, as soon as the wife of the informant reached there, he ran away. After that the victim has disclose the all facts to the informant. It is submitted by learned counsel for the revisionist that neither in the first information report nor in the statement of the victim recorded under Section 161 Cr.P.C., allegation of rape has been levelled against the accused-revisionist. It is for the first time in the statement recorded under Section 164 Cr.P.C. that allegation of rape upon the victim has been made against the accused-revisionist. Though the victim has been medically both internally as well as externally but no sign of any rape has been found in the medical examination report.
On the strength of aforesaid statement, it is argued that there is delay of about 20 hours in lodging of the first information report for which no plausible explanation has been given by the prosecution. There is a dispute between the informant and the family of the accused-revisionist qua a passage due to which he has been falsely implicated in the present case. Time taking in making allegation of rape against the accused-revisionist at the time of recording of statement of victim under Section 164 Cr.P.C. also casts a dent on the prosecution version. The medical examination report of the victim does not support the prosecution case with regard to allegation of rape upon the victim by the accused-revisionist. Lastly, it is submitted by learned counsel for the revisionist that the revisionist has been declared juvenile vide order dated 4th February, 2020 passed by the Juvenile Justice Board, Sant Kabir Nagar, as he was 13 years old at the time of incident dated i.e. 22nd September, 2020. There is no chance of the revisionist fleeing away from the judicial process or tampering with the prosecution evidence. The revisionist is languishing in jail since 23rd September, 2020 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
Per contra, learned A.G.A. opposed the prayer for bail but could not dispute the factual aspect of the matter as argued by learned counsel for the appellant.
Having regard to the facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment as well as the fact that the medical examination report of the victim does not support the prosecution story, as also the argument that there is no adverse report against the accused-revisionist with regard to proviso to Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015, considering the total period of incarceration undergone by the accused-revisionist, this Court is of the view that the revisionist has made out a case for bail. The Court below erred in rejecting the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the revision is liable to be allowed.
Accordingly, the revision is allowed and the impugned order rejecting the bail application of the revisionist is set-aside.
Let revisionist-Ramesh @ Motu (minor) be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-
(i) The revisionist shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(ii) The revisionist 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.
(iii) In case, the revisionist misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the revisionist fails to appear before the court on the date fixed in such proclamation, then the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The revisionist shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the revisionist is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
(Shiv Shanker Prasad, J.)
Order Date :- 7.2.2023
Sushil/-
