Rohit vs State Of U.P.
2023 Latest Caselaw 19331 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:150915
 
Court No. - 78
 

 
Case :- CRIMINAL APPEAL No. - 365 of 2021
 

 
Appellant :- Rohit
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Arjun Singh Solanki,Araf Khan,Sonakshi Arora
 
Counsel for Respondent :- G.A.,Pankaj Kumar Sharma
 

 
Hon'ble Raj Beer Singh,J.

1. Heard Sri Arjun Singh Solanki, learned counsel for the appellant, learned counsel for the informant and learned A.G.A. for the State.

2. This criminal appeal has been preferred under Section 101(5) of The Juvenile Justice (Care and Protection of Children) Act (hereinafter referred as J.J. Act) against the order dated 22.12.2020, passed by the learned Special Judge (POCSO Act), Kasganj in ST No. 581/ 2010, crime number 148/2020, under section 376/323/506 IPC and section POCSO Act, PS Soron, District Kasganj, whereby, the bail application of juvenile/appellant Rohit has been rejected.

3. Learned counsel for the appellant submitted that the impugned order is bad in law and liable to be set aside. The first information report of this case was lodged on 06.05.2020 by the informant alleging that on 05.05.2020, juvenile/appellant has forcibly took away victim from ranch and assaulted and committed rape upon her. As the appellant was found aged below 18 years, thus, he was declared juvenile by the Juvenile Justice Board, Kasganj (hereinafter referred as J.J. Board) vide order dated 25.09.2020. After investigation, charge sheet was submitted, but considering the fact that appellant was aged between 16 to 18 years, after conducting inquiry, the J.J. Board referred the case of the appellant to Children Court for his trial as adult. The appellant/juvenile has moved an application for bail before the Children Court, which has been rejected by the impugned order dated 22.12.2020. Learned counsel for the appellant further submitted that the allegations of rape levelled against appellant are wholly false and that in internal medical examination of victim, no injury was shown and that her version is not supported by medical evidence. It was submitted that though some minor injuries were shown to victim but the same are not the result of incident in question. Referring to case of Sachin Yadav (Juvenile) V State of U.P. and Another (Cri. Appeal No. 3312/2019), decided on 22.05.2019, it was submitted that so far the question of bail appellant / juvenile is concerned, the beneficial provisions provided under section 12 of the J.J. Act 2015 shall apply in the matter.

4. It is further submitted that the appellant is languishing in jail since 08.05.2020 and thus, he has already undergone detention of more than three years. The report of Probation Officer is also in favour of the appellant. At the time of incident, the age of appellant / Juvenile was merely 16 years and 25 days. Referring to age of appellant/juvenile, it was submitted that his continuous detention in jail would be against the interest and welfare of juvenile/appellant.

5. Learned A.G.A. and learned counsel for the informant have vehemently opposed the bail of appellant and submitted that victim was aged merely 14 years and she has made allegations of rape against the appellant. It was submitted that victim has sustained injuries in the incident and that there is no illegality or perversity in the impugned order. However, it could not be disputed that as per findings of J.J. Board, at the time of incident, the appellant was aged 16 years 25 days and that the appellant is languishing in jail since last three years.

6. I have considered rival submissions and perused the record.

7. It appears from record that after registration of case against the appellant, he claimed juvenility and the J.J. Board found that at the time of incident, the appellant was aged 16 years 25 days and thus, he was declared juvenile by order dated 25.09.2020 passed by the J.J. Board. Later on in view of provisions of section 15 and 18(3) of J.J. Act, the case of the appellant was referred to the Children Court for trial as an adult. Section 15 of the J.J. Act only provides for transfer of a juvenile to the Children Court for trial as an adult, where the age of child is between 16 to 18 years and he has been alleged to have committed heinous offence, the J.J. Board is required to conduct a preliminary inquiry with regard to his mental and physical capacity to commit offence, ability to understand the consequence of the offence and the circumstances in which the offence was committed considering their physical, psychological and mental status in commission of crime. Section 18(3) of the J.J. Act provides that after making the assessment under section 15 of J.J. Act, the J.J. Board comes to a conclusion that there is a need for trial of the child as an adult, the J.J. Board may pass an order for the transfer of the trial of the case to the Children Court.

8. In the instant matter, one of the question that arises for consideration is that while a juvenile is being tried by the Children court as an adult in terms of section 18(3) of J.J. Act, whether bail plea on behalf of such juvenile has be considered on the criteria and parameters envisaged in Section 12 of the J.J. Act?

9. In case of Sachin Yadav (Juvenile) V State of U.P. and Another (supra), the Co-ordinate Bench of this Court held under:

?Section 15 of the Amending Act only provides for transfer of a juvenile to the Children Court for trial as an adult. Where the child has attained the age of 16 years and has been alleged to have committed heinous offence, the J.J. Board is required to conduct a preliminary inquiry with regard to his mental and physical capacity to commit offence, ability to understand the consequence of the offence and the circumstances in which the offence was committed considering their physical, psychological and mental status in commission of crime. Section 18(3) of the Act provides that after making the assessment under section 15, J.J. Board comes to a conclusion that there is a need for trial of the child as an adult, the Board may pass an order for the transfer of the trial of the case to the Children Court.

It is pertinent to mention here that Section 12 of the Juvenile Justice (Care and Protection of Children) Act has not been amended so far as the parameters and yardstick for granting bail to the juvenile-accused is concerned. Therefore, while rejecting the bail application of such juvenile, it cannot be the criteria that the alleged offence is of serious and heinous nature. The order must show that the grant of bail to the juvenile-accused is against his interest as there is possibility of his being associated with known criminals, or there is some short of moral, physical or psychological danger to him or there is likelihood of end of justice being defeated. All these conditions have been incorporated in law in order to ensure justice to the juvenile.?

10. The same issue fell for consideration before Delhi High Court in case of CCL A Vs State NCT of Delhi (B.A No. 2510/2020), decided on 19.10.2020, wherein, on detailed analysis of the statutory scheme, it was observed as under :-

?26. Clearly therefore, even when a child is sent-up for trial as an adult before a Children?s Court, the child does not become an adult or ?major?, but is only to be treated differently considering the heinous nature of the offence alleged and consequent need for a stricter treatment of the offender, though still as a juvenile in conflict with law. It must be borne in mind that the Legislature has created this categorization based upon an assessment of the child?s ?mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence?. If the intention of the Legislature was that upon such assessment, the child would de-jure become an adult, then the question of there being a separate Children?s Court to try him with specific safeguards provided for the trial would not arise. That however is not the case.

27. ? ? ?

28. With specific reference to the application at hand, it bears mentioning that even though a child may be sent-up for trial before the Children?s Court as an adult, there is no provision in the J.J. Act that requires any departure from considering the matter of release of such child on bail under section 12. This court is supported in this view by the judgment of a Co-ordinate Bench of this court in A.C. v. State of NCT of Delhi.?

11. In case of Prahlad Singh Parmar vs The State Of Madhya Pradesh (MCRC 3085 -2021), decided on 24 March, 2022, Madhya Pradesh High Court held as under:

Accordingly, it is held that since the preliminary assessment of the child in conflict with law is for the purposes of trial i.e., as to whether he should be tried by the Juvenile Justice Board or by the Children's Court, therefore, it will not curtail the power of Juvenile Justice Board to consider the application filed underSection 12 of the Act, 2015.

12. Thus, it is the consistent view that bail plea of a juvenile, aged between 16 to 18 years, who is being tried by the Children Court as an adult, has to be considered at the anvil and parameters as prescribed under section 12 of of J.J. Act. As per the provisions of Section 12 of the J.J. Act, when any person accused of a bailable or a non-bailable offence and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution except when :-

i. if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or

ii. that it will expose him to moral, physical or psychological danger, or

iii. that his release would defeat the ends of justice.

13. It has been held by the supreme court in Dr. Subramaniam Swamy vs Raju, 2014 (86) ACC 637 that a juvenile has to be released on bail unless the court has a reasonable ground to believe that his release will bring him into association of some known criminal, or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice.

14. Now coming to facts of the instant case, it may be observed that the informant has lodged first information report on 06.05.2020, alleging that on 05.05.2020 his minor daughter (victim) has gone to look after her ranch but thereafter she was not traceable. She returned back in the evening and told that that the appellant has forcibly taken her towards Ganga river and he assaulted her and committed rape upon her. The victim has supported said version in her statement under section 161 and 164 CrPC. As per ossification test report, age of victim was shown 14 years. At the time of incident, the age of the appellant was aged 16 years 25 days and he was declared juvenile by order dated 25.09.2020 passed by the J.J. Board. As per report of the trial Court, only part statement of PW 1/ informant has been recorded so far, whereas, the appellant has already undergone the detention of more then three years. It was stated that nothing adverse has been shown in the report of the Probation officer and there is no material to show that release of appellant would expose him to moral, physical or psychological danger or would defeat ends of justice. Considering all attending facts and circumstances of the case, a case for bail is made out. It appears that the Trial Court did not consider the matter and position of law in correct perspective and committed error by rejecting the bail application of the juvenile / appellant.

15. In view of the aforesaid, the impugned order dated 22.12.2020, passed by the learned Special Judge (POCSO Act), Kasganj, is hereby set aside. Let the appellant- Rohit involved in Session Case No. 581 of 2010, arising out of Case Crime No. 148 of 2020, under Sections 376, 323, 506 I.P.C. and Section 3/4 POCSO Act, Police Station-Soron, District- Kasganj, be released on bail and he be given in custody of his father / guardian on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned, subject to further condition that the father / guardian of the juvenile shall ensure that the juvenile would not indulge in any anti-social or criminal activity.

16. Appeal is allowed in above terms.

Order Date :- 27.7.2023

Aditya