X Juvenile vs State Of U.P. And Another
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Allahabad High Court

X Juvenile vs State Of U.P. And Another on 2 May, 2024

Author: Renu Agarwal

Bench: Renu Agarwal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:78711
 
Court No. - 83
 

 
Case :- CRIMINAL REVISION No. - 1185 of 2024
 

 
Revisionist :- X Juvenile
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Brijesh Kumar Yadav,Sunil Kumar
 
Counsel for Opposite Party :- Anil Kumar Dubey,G.A.
 

 
Hon'ble Mrs. Renu Agarwal,J.
 

1. Heard learned counsel for the revisionist, learned counsel for opposite party No.2, learned A.G.A for the State and perused the material available on record.

2. The present criminal revision under Section 102 of the Juvenile Justice (Care and Protection of Children, Act 2015) has been filed against the judgment and order dated 22.02.2024 passed by Additional Sessions Judge/ Special Judge (POCSO Act), Bulandshahar in Criminal Appeal No. 179 of 2023 and the order dated 30.11.2023 passed by Juvenile Justice Board, Bulandshahar rejecting the bail application of the revisionist in Case Crime No.93 of 2023 under Sections 354(D), 376 IPC and Section 3/4 POCSO Act and Section 67-A I.T Act Police Station Khurja Nagar District Bulandshahar.

3. It is submitted by the learned counsel for the revisionist that the revisionist has been declared juvenile by the Juvenile Justice Board. The said order of the Juvenile Justice Board has attained finality since no appeal has been preferred against the aforesaid order by the prosecution. The FIR is delayed by eight months and no explanation has been given by the prosecution for the delay in lodging the FIR. The revisionist has no prior criminal history. It is also submitted that as per provision of Section 15 of the Juvenile Justice (Care and Protection of Children) Act 2015 it is provided that a preliminary assessment in two heinous offences is to be done by the board in the better of child in conflict with law who has completed or is above 16 years and has not completed age of 18 years on the date of commission of the offence in connection with his mental and physical capacity to commit such offence, ability the consequence of offence and the circumstances in which he allegedly completed the offence and then the board may pass an order in accordance with the provision of sub section 3 of Section 18 of the Juvenile Justice Act. Section 15 (1) of the Act is reproduced below:

"15. Preliminary assessment into heinous offences by Board (1) In case of a heinous offence alleged to have been committed by child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his 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, and may pass an order in accordance with the provisions of sub-section (3) of section 18"

4. It is also submitted that for such assessment Board may take assistance of psychologist or psycho-social worker. It is contended that the Supreme Court in the case of Barun Chandra Thakur Vs. Master Bholu and another in Criminal Appeal No. 950 of 2022 has observed that the word "may"in the proviso to Section 15 (1) shall be read mandatory and if the assistance of psychologist or psycho-social worker is not taken then the Court shall write on the reason for not taking any assistance.

5. Section 18(3) of the Juvenile Justice Act is reproduced below:

"(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offence."

6. It is then submitted by the learned counsel for the revisionist that the trial court has not taken assistance of any psychologist or psycho-social worker and did not assigned any reason for not taking the assistance of psychologist or psycho-social worker and without complying with the provisions of Section 15, the bail application of the revisionist has been rejected. The Juvenile Justice Board has not discussed the provisions of Section 12 of the Juvenile Justice (Care and Protection of Children) Act and rejected the bail application of the revisionist. The appellant court also has not discussed the provisions of Section 12 of the Juvenile Justice (Care and Protection of Children) Act and affirmed the order of Juvenile Justice Board. It is also submitted that if the revisionist is released on bail, he will not involve in any criminal activities. Hence it is prayed to set aside the order passed by Juvenile Justice Board as well as the POCSO Court and to enlarge the revisionist on bail.

7. Learned counsel for the informant has opposed the revision and submitted that the specific role of making the inappropriate video of the victim viral has been assigned to the revisionist and the revisionist is in capacity to understand the severity of the act which is allegedly committed by him, hence the revision is opposed and submission is made that the order passed by the court below is in accordance with law.

8. From the perusal of record it is evident that the FIR was lodged eight months after the incident, no explanation for the delay has been given by the prosecution, the victim herself admitted that she was in relationship with the revisionist, there is nothing adverse against the revisionist in the report of probationary officer, the revisionist has no criminal history apart from the instant case, the revisionist has been declared juvenile by the Juvenile Justice Board, the order of the Juvenile Justice Board declaring the revisionist as juvenile has not been challenged in appeal, the bail of the revisionist has been rejected by the court below on the ground of gravity of offence, gravity of offence is not a ground to deny bail of a juvenile. Before proceeding further in the matter, it would be apposite to reproduce Section 12 of the Juvenile Justice (Care and Protection of Children) Act:

"12. Bail of juvenile

(1)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 [or placed under the supervision of a Probation Officer or under the care of any fit institution or fit person] [ Inserted by Act 33 of 2006, Section 10 (w.e.f. 22.8.2006).] 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.(2)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.(3)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."

9. From the perusal of Section 18(3) of the Juvenile Justice Act, it is evident that the assessment under Section 15 (1) regarding mental and physical capacity of child in conflict with law to commit such offence, ability to understand the consequence thereof and the circumstances in which he allegedly committed the offence has to be seen for the purpose of conducting trial as is envisaged under Section 18(3) of the Juvenile Justice Act. After preliminary assessment under Section 15 the Board has to pass an order that there is need for trial of such child in conflict with law as adult or otherwise the case is triable before the Juvenile Justice Board. Before considering the bail application of the juvenile there is need to go to the process as is envisaged in Section 15 (1) of the Juvenile Justice Act. The provision of bail is entailed in Section 12 of the Act and the Juvenile Justice Board and first appellate court has to decide the bail application of the applicant after considering the grounds as mentioned in Section 12 of the Juvenile Justice Act. The guardian of the revisionist undertake that if the revisionist is released on bail, he shall take care of the revisionist and shall see to it that the revisionist is not involved in any criminal activities in future.

10. In view of the above the revision is allowed. The impugned order dated 22.02.2024 passed by Additional Sessions Judge/ Special Judge (POCSO Act), Bulandshahar in Criminal Appeal No. 179 of 2023 and the order dated 30.11.2023 passed by Juvenile Justice Board, Bulandshahar rejecting the bail application of the revisionist in Case Crime No.93 of 2023 under Sections 354(D), 376 IPC and Section 3/4 POCSO Act and Section 67-A I.T Act Police Station Khurja Nagar District Bulandshahar are hereby set aside.

11. The Juvenile Justice Board concerned is directed to release the revisionist on bail upon his father/mother furnishing a personal bond with two solvent sureties, each in the like amount to the satisfaction of the Juvenile Justice Board concerned subject to the following conditions:

(i) that the natural guardian father/mother will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the father/mother will ensure that the juvenile will not indulge in any criminal activity;

(ii) The revisionist shall not tamper with the evidence or threaten the witnesses;

(iii) The revisionist through guardian shall also file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court;

(iv) The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board concerned on such periodical basis as the Juvenile Justice Board may determine.

12. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court/J.J.Board shall be absolutely free to arrive at its independent conclusions on the basis of evidence led, uninfluenced by any finding or observation whatsoever in this order.

(Renu Agarwal,J.)

Order Date :- 2.5.2024

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