Shiv Kumar Thru. His Mother ... vs State Of U.P. Thru. Secy. Home, ...
2023 Latest Caselaw 15627 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Neutral Citation No. - 2023:AHC-LKO:34769
 
Court No. - 13
 

 
Case :- CRIMINAL REVISION No. - 284 of 2023
 

 
Revisionist :- Shiv Kumar Thru. His Mother Shushila Devi
 
Opposite Party :- State Of U.P. Thru. Secy. Home, Lko. And Another
 
Counsel for Revisionist :- Akhtar Husain
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

1. This revision has been preferred by the revisionist under Section 102 of the Juvenile Justice (Care and Protection) Act, 2015 (Act) Shiv Kumar,(Minor) through his mother Shushila Devi against the judgment and order dated 25.1.2022 passed by the Additional Sessions Judge/Special Judge POCSO Act/ Juvenile Court No. 11, Kheri in Criminal Appeal No. 1 of 2022 (Shiv Kumar Vs. State) whereby the learned Additional Sessions Judge confirmed the order dated 22.12.2021 passed by the Juvenile Justice Board, Kheri whereby the learned board has rejected the bail application of the revisionist in case crime no. 928 of 2021 under Sections 376, 506 I.P.C. and 3/4 of the POCSO Act and Section 3/4 of the Dowry Prohibition Act, Police Station- Kotwali Sadar, District- Kheri.

2. Heard learned counsel for the revisionist and learned A.G.A for State of U.P.

3. Learned counsel for the revisionist has submitted that the revisionist is juvenile and has falsely been implicated in the present case. The F.I.R. of the present case has been lodged by the maternal grand mother (nani) of the victim against the revisionist with false allegation that the revisionist has made physical relationship with the victim on the basis of false promise of marriage, as the victim fell in love with revisionist and she has made physical relationship with the revisionist with her own will and thus, the victim is consenting party. At the time of medical examination, the victim was also pregnant. There is no evidence against him. No disclosed offence is made out against him. He has no criminal history. No incriminating fact has been mentioned in the report submitted by the District Probation Officer. If he is released on bail, he will not misuse the liberty of bail. He is languishing in remand home since 19.9.2021. The impugned orders are against the provision of law which are liable to be set aside.

4. Learned A.G.A has vehemently opposed the prayer made by the learned counsel for the revisionist and submitted that if the revisionist is released on bail, he will join in the company of habitual criminal,hence he is not entitled for bail.

5. The Juvenile Justice (Care and Protection) Act, 2015 (Act) has been enacted with object to reform and protect the future career of children below the age of 18 years. The main purpose of this Act is to keep the juvenile out of company and society of habitual criminals and to keep them in place of safety. The parameter and guidelines for assessment of plea of bail of a juvenile has been provided in Section 12 of the Act which is as under:-

"When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety 1[or placed under the supervision of a Probation Officer or under the care of any fit institution of fit person] but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.

When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.

When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."

6. Thus it is clear that the provision for release to a juvenile has overriding effect to any provision contained in Code of Criminal Procedure, 1973 or in any other law for the time being in force. According to this provision, a duty has been cost to grant bail to a juvenile unless there is a reasonable ground for plea that the release is likely to bring the juvenile into association with any known criminal or exposed the said juvenile to moral, physical or psychological danger or that his release would defeat the end of justice.

7. Plea of bail raised by juvenile cannot be rejected in a mechanical manner. While considering the parameter provided in Section 12 of the Act, nature of offence, role played by the juvenile in committing the offence, his family background, his association with known or unknown criminals or bad elements of society, number of person named in the occurrence and future carrier of juvenile should also be taken into consideration by Juvenile Justice Board or court concerned in addition to the other factors.

8. 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.

9. 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 JJ 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, JJ 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.

10. In this case the revisionist was aged about 14 years at the time of occurrence. Admittedly the revisionist was juvenile at the time of occurrence. No material is available on record whereby it can be presumed that the revisionist was in association of any criminal or bad elements.

11. From perusal of impugned judgement and order passed by the appellate Court as well as passed by the Board, it transpires that both the trial court have passed the impugned judgement and orders in cursory manner without placing due reliance on the report submitted by the District Probation Officer as well as facts and circumstances of this case. The impugned judgment and orders are liable to be set aside.

12. Consequently, the revision succeeds and is allowed. Both the impugned judgment and order 25.1.2022 and 22.12.2021 are hereby set aside.

13. Let the revisionist Shiv Kumar through his mother Shushila Devi be released on bail in the aforesaid criminal case and be given into custody of aforesaid natural guardian on furnishing a personal bond with two solvent sureties of relatives of the aforesaid natural guardian each in like amount to the satisfaction of Juvenile Justice Board concerned on the following conditions.

(i)That, Shushila Devi/ natural guardian of the revisionist will furnish an undertaking that upon release on bail, the juvenile will not be permitted to go into contact or association with any known or unknown criminal or exposed to any moral or physical danger and will not indulge in any criminal activity and aforesaid natural guardian will make best effort for improvement of juvenile's carrier.

(ii)That the revisionist and his aforesaid natural guardian shall remain present before the trial court on each date fixed, either personally or through counsel.

Order Date :- 18.5.2023

Anuj Singh