Ayush Dhuriya @ Shani, Thru. His ... vs The State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 25732 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:61054
 
Court No. - 29
 

 
Case :- CRIMINAL REVISION No. - 1350 of 2022
 

 
Revisionist :- Ayush Dhuriya @ Shani, Thru. His Mother Anita Dhuriya
 
Opposite Party :- The State Of U.P. Thru. Prin. Secy. Deptt. Of Home, Lko. And Another
 
Counsel for Revisionist :- Vijayendra Prakash Tripathi,Bal Keshwar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ram Manohar Narayan Mishra,J.

As office report dated 28.1.2023, notice has been served upon opposite party no. 2 personally, but no one is present on her behalf neither any counter affidavit has been filed.

Heard learned counsel for the revisionist and learned AGA for the State.

This revision has been filed against the judgment and order dated 14.12.2022 passed by Special Judge, POCSO Act/ Additional Session Judge, Faizabad in Criminal Appeal No. 50 of 2022 in Case Crime no. 153 of 2022, P.S. Maharajganj, District Ayodhya (State vs. Ayush Dhuriya @ Shani) whereby order dated 16.9.2022 passed by Juvenile Justice Board has been dismissed. Learned appellate court has affirmed the rejection order passed by the Juvenile Justice Board, Faizabad.

Learned counsel for the revisionist submitted that according to prosecution version, FIR was lodged on 24.4.2022 against the revisionist at the instance of Smt. Arati Gaur, mother of the prosecutrix, with allegation that accused, who works as servant in grocery shop had committed rape on her daughter aged around 15 years and also made video thereof; shop owner Mahesh also extended support to the accused in this act; accused has made video on advise of shop owner; the revisionist threatened the victim to make obscene video viral; after that her daughter suffered from complication due to this incident. He next submitted that in the FIR, no date and time of incident is mentioned; victim in the statement under Section 161 Cr.P.C. has stated the incident occurred on 8.4.2022 before the police and before the Magistrate while recording statement under Section 164 Cr.P.C.; FIR is delayed by 16 days; she replied to the question of lady constable in statement under section 161 Cr.P.C. that accused has not committed filthy act with her; victim has supported FIR version in statement under Section 161 Cr.P.C. and leveled allegation of rape against the accused in statement u/s 164 Cr.P.C. and stated that accused had shown her naked video to her friend Priya and on her advise she narrated the incident to her mother who lodged FIR thereafter. However, Priya in her statement under Section 161 Cr.P.C. has made no allegation against the accused and has only stated that accused Ayush had shown serial on his mobile phone; age of the victim has been shown in the transfer certificate as 1.1.2006; copy thereof is filed alongwith supplementary affidavit, which has been supported by Principal of the school in statement under Section 161 Cr.P.C., accordingly, she was 16 years and three months of age at the time of incident. However, no mark of injury either external or internal was found in the medical report of the victim conducted on 26.4.2022 by the doctor; the District Probation Officer in his social investigation report had advised that juvenile to be kept out of company of bad person; District Probation Officer has also observed that neighbour and Gram Padhan had been contacted regarding criminal history and other antecedents of the juvenile; he is student of Intermediate at the time of incident; it appears that the accused participated in the alleged act for want of proper supervision.

The admitted facts are that the revisionist has declared juvenile by the order dated 22.8.2022 by the Juvenile Justice Board. The bail application was moved before the Special Judge, POCSO Act/ Additional Session Judge, and the same was rejected vide judgment and order dated 14.12.2022 against which the present revision has been filed.

The order dated 14.12.2022 has been challenged in this revision on the basis of that the Court below passed the impugned order against the law and facts on record and the impugned order is perverse, vitiated and contrary to law and facts, therefore, the impugned order is not sustainable under law, and is liable to be set aside and the revisionist is entitled to be released on bail.

The submission of the learned counsel for the revisionist is that the age of the revisionist was not considered while rejecting the bail application and the same was rejected on the basis of seriousness and gravity of the offence. This fact was ignored by the Court below and the bail was wrongly rejected. It has also been submitted that the legal provision provided under Section 12 of the Juvenile Justice Act was not interpreted in the right prospective which requires justice to be done to the juvenile. It has also been submitted that there was nothing adverse against the juvenile in the report of the District Probation Officer and there was no legal ground to deny bail to the revisionist. The submission is that the impugned order is apparently illegal and the court below has committed jurisdictional error. There is material illegality and irregularity, hence, the impugned order is liable to be set aside and the revisionist deserves for bail.

Learned AGA has opposed and has submitted that the victim was 16 years of age at the time of incident; the court below has rightly considered the bail application, and come to the conclusion, that the bail application has got no force, and was liable to be rejected. There is no illegality nor there is any jurisdictional error in the impugned order.

The noticeable fact in this case is that the Court below has not considered this aspect that he is dealing with the bail application of the juvenile. Perusal of the impugned order shows that he had decided the bail application, as such, that he is deciding the regular bail application of a major accused. It appears that this fact that the revisionist was minor / juvenile was not given any weight by the Court below, which is apparent illegality in the impugned order.

It is pertinent to mention that provision has been made under Section 12 of the Juvenile Justice Act that when any juvenile who is accused of a bailable or a non-bailable offence, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail except when :

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

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

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

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.

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 his physical, psychological and mental status in commission of crime. Section 18(3) of the Act provides that after making the assessment under section 15, the 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.

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 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.

Thus it is clear that even though Juvenile Justice Act has been amended and the juvenile above 16 years in age, can be tried as an adult by the Children Court, there is no amendment in respect of considerations which is taken into account for the bail of juvenile. Section 12 of the Juvenile Justice Act makes the bail of the juvenile mandatory and the grounds on the basis of which his bail application can be rejected is also to serve the best interest of the juvenile himself. Therefore, the bail of juvenile can only be rejected if the court comes to a conclusion that the release on bail will adversely affect the interest of juvenile.

In this case, there appears to be nothing on record showing that there is moral, physical or psychological danger to the juvenile, if he is released, nor there was any possibility that he will come in the company of known criminal nor there is any reason to conclude that his release on bail will defeat the ends of justice. The rejection of bail by the court below is highly inappropriate and the rejection order suffers from material irregularity and illegality. Therefore, the court is of the firm view that the court below has not exercised his jurisdiction vested in its keeping in view the object of the Act.

In view of above, I find that the impugned order is not sustainable and it is liable to be set aside.

The criminal revision is therefore allowed. The impugned order rejecting the bail application is set aside.

The juvenile, namely Ayush Dhuriya @ Shani (Minor) be released on bail and he be given in the custody of the mother guardian namely Anita Dhuriya on his filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian mother Anita Dhuriya shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. She will also give an undertaking that on being so released on bail, the juvenile will not however indulge in commission of any crime and she will ensure his presence during trial before the court whenever so required by court.

Office is directed to transmit the certified copy of this order to the court concerned for information and its necessary compliance.

Order Date :- 21.9.2023

Dhirendra/