Suraj Gupta Thru’ His Father … vs State Of U.P. & Another on 1 November, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 17

Case :- CRIMINAL REVISION No. – 2418 of 2016

Revisionist :- Suraj Gupta Thru’ His Father Namely Arjun Gupta

Opposite Party :- State Of U.P. Another

Counsel for Revisionist :- Chandra Prakash Misra

Counsel for Opposite Party :- G.A.,Manvendra Singh,Santosh Kumar Nigam

Hon’ble Prabhat Chandra Tripathi,J

1.

Heard Sri Ramesh Kumar Singh, Advocate holding brief of Sri Chandra Prakash Mishra, learned counsel for the revisionist, Sri Manvendra Singh, learned counsel for the opposite party no.2 and learned A.G.A. for the State and perused the record.

2. The present criminal revision has been filed against the judgement and order dated 28.5.2016 passed by the then learned Additional Sessions Judge, Court No.1, Gorakhpur, whereby the learned Additional Sessions Judge, Court No.1, Gorakhpur has dismissed the appeal and confirmed the impugned order dated 10.5.2016 passed by the Principal Magistrate, Juvenile Justice Board, Gorakhpur in case crime no.185 of 2015 (State Vs. Suraj Gupta), under Section 376 I.P.C. and Section 3/4 POCSO Act, Police Station Belipar, District Gorakhpur, whereby the learned Principal Magistrate, Juvenile Justice Board, Gorakhpur has rejected the bail application of Suraj Gupta (juvenile) son of Arjun Gupta.

3. Aggrieved by the order dated 10.5.2016 of the Principal Magistrate, Juvenile Justice Board, Gorakhpur a Criminal Appeal No. 73 of 2015 (Suraj Gupta Vs. State) was preferred on behalf of the juvenile through his father and natural guardian Arjun Gupta before the court of the learned Additional Sessions Judge, Court No.1, Gorakhpur. The learned Additional Sessions Judge, Court No.1, Gorakhpur vide its order dated 28.5.2016 has rejected the said appeal and confirmed the aforementioned order dated 10.5.2016 passed by the learned Principal Magistrate, Juvenile Justice Board, Gorakhpur.

4. Learned counsel for the revisionist has submitted that the order dated 10.5.2016 passed by the Principal Magistrate, Juvenile Justice Board, Gorakhpur and also the order passed by the learned Additional Sessions Judge, Court No.1, Gorakhpur dated 28.5.2016 are wrong, illegal and can not be sustained in the eyes of law. Learned counsel for the revisionist has also argued that according to the First Information Report the date of occurrence is mentioned as 2.8.2015 at 12:00 hours in the day and information received at Police Station Belipar was on date 2.8.2015 at 13:00 hours and the distance of place of occurrence from the Police Station Belipar is mentioned 10 Kilometers. It is not possible to lodge the first information report within a period of one hour. It has also been argued that the details of offence do not corroborate with the medical report of the victim girl. In the medical report, there is no mention of any bleeding and it has been mentioned that hymen was intact. It has been further stated by the learned counsel for the revisionist that the report of the District Probation Officer is misleading. The revisionist, who was not involved in any criminal activities prior to registration of this case, how he will involve himself in any of the criminal activities? It was also argued that the revisionist is detained in judicial custody w.e.f. 2.8.2015 and the Court should adopt a considerate and sympathetic approach in the matter. Learned counsel for the revisionist has also submitted that labia majora and labia minora of the victim girl were not developed. It has also been submitted that the revisionist has already undergone more than half of detention provided to a juvenile and he is entitled for bail under Section 436-A, The Code of Criminal Procedure, 1973.

5. Learned counsel for the opposite party no.2 has vehemently opposed the bail application. He has stated that in column no. 18 of medical report of victim girl there is mention of ‘mild fresh bleeding present’.

6. I have gone through the Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The relevant portion of Section 12 of the Act is quoted verbatim as follows:-

“12. Bail to a person who is apparently a child alleged to be in conflict with law-(1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or 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 person:

Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person’s release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.”

7. In the context, I have also gone through the following judgments of this Court as well as of the Apex Court:

“1. Monu @ Moni @ Rahul @ Rohit Vs. State of U.P., 2011 (61) ACR 2582.

2. Mohit Vs. State of U.P. and another, 2013 (83) ALLCC, 242.

3. Virendra Vs. State of U.P., 2015 (1) ACR 629.

4. Shabbir Vs. State of U.P. and others, 2015 (88) ALLCC 161.

5. Sonu Tomar Vs. State of U.P., 2015 (2) ACR 2284.

6. Amit Yadav Vs. State of U.P. and others, 2016 (93) ALLCC 571.”

8. The Apex Court in the case of Om Prakash Vs. State of Rajasthan and another, (2012) 5 SCC 201 has cautioned the Courts to be more sensitive in dealing with juvenile in cases of serious nature like sexual molestation, rape, gang-rape murder etc. The relevant extract of the said judgment in paragraphs 3 and 23 are being reproduced below in reference:-

“3. Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of children/juvenile by the juvenile court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a juvenile court or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held.

23. ….Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him.”

9. In the instant case the first information report which is in Hindi vernacular is narrated as below:-

“Applicant Sanjay Gupta son of Ram Nath Gupta, resident of village Nausar, Police Station Belipar, District Gorakhpur presented a written application scribed by Dharmdeo Bharati son of Ram Tirath; before the Station Officer, Police Station Belipar, District Gorakhpur on date 2.8.2015 at 13:00 hours in the day that on that day i.e. 2.8.2015 at 12:00 hours in the noon his daughter Nikita Gupta was in the agricultural fields behind his house one lad Suraj Gupta son of Arjun Gupta, resident of village Nausar, District Gorakhpur of the neighbourhood enticed away his daughter and tied her mouth with cotton bandage and committed rape upon her. Due to commission of rape the girl was found in bleeding and unconscious state. After regaining the consciousness she cried, thereafter she was taken home by the relatives. The first information report was lodged promptly on the same day i.e. on 2.8.2015 at 12:00 hours in the day. It was prayed to punish the guilty. The age of Nikita was 8 years.”

10. The medical examination of the victim girl Nikita Gupta was conducted on the same day i.e. on 2.8.2015 at 4:45 P.M. and in the vulva part of her genital organ ”mid redness seen” and “anus mild fresh bleeding present (c) abrasion at 9,6,12 O’ Clock position and (22) Hemorrhage/other discharge mild fresh bleeding around anal orifice”.

11. According to the age certificate issued by the office of the Chief Medical Officer, Gorakhpur dated 7.8.2015, the age of the victim girl Nikita Gupta was about 7 years on her date of medical examination.

12. During the course of argument learned counsel for the revisionist as well as learned counsel for the opposite party no.2 has informed that a charge-sheet in case crime no.185 of 2015, under Section 376 I.P.C. and Section 3/4 POCSO Act, Police Station Belipar, District Gorakhpur against the juvenile in conflict with law Suraj Gupta (revisionist) has been submitted.

13. The rider of the ‘person’s release would defeat the ends of justice’ requires attention.

14. The ‘juvenile in conflict with law’ does not entitle him to be released on bail solely on the ground of his juvenility. The juvenile offenders who have criminal tendencies and have inclination and attraction to commit crime “at the drop of a hat”, should be segregated and should not be integrated to set the shield of this benevolent legislation. It is of paramount importance to up-keep and safeguard the larger interest of the society. Due to this, exception to the rule of bail to a juvenile has also been included. A too liberal interpretation in the matters related to ghastly crimes would definitely result in defeating the ends of justice.

15. The relevant extract of the judgment in Virendra Vs. State of U.P., 2015 (1) ACR 629 para 23 is quoted below:-

“23. A citizen’s claim to equality before the law is a claim of justice. Justice has been termed as the highest virtue. It has also been equated with fairness. Fairness connotes fairness to all i.e. equal treatment to all. Sense of injustice is a powerful human emotion. It is strongest when a person’s own interests are harmed, but it also aroused in civilized people when they witness wrongs done to others. Ultimate object of every legal system is to secure justice which is at the centre of moral and social philosophy. The instinct for justice leads us to believe that right, and not might, is the true basis of society. The principles of justice that define duties and rights should be neutral with respect to compacting conception of good life. Defeat of ends of justice is bound to result in injustice which produces conflict within the individual and sets him at variance with himself and with all who are just. Injustice is inseparable from virtue which consist of ethics and justice in universal sense. Injustice in the particular sense is the injustice that causes harm to others. Virtue based approach connects justice to reflection about good life. This approach ensures that justice means giving people what they morally deserve-allocating goods to reward and promote virtue. It is thus apparent that the concept of justice lies at the heart of moral philosophy where righteousness, fairness and truth are the basic values and it should include people from all walks of life. Therefore, it is safe to conclude that wellbeing of the community takes precedence over the liberty and preventing injustice would always be a pursuit of justice. Leaving society to live with persons of perverted nature would be an affront to the dignity of human beings and tends to promote anarchy and unrest in society which is sure to defeat the ends of justice.”

16. It would not be out of context to cite the paragraphs 376 and 377 of the extract of the judgment of the Apex Court in the case of Essa @ Anjum Abdul Razak Memon (A-3) and others Vs. The State of Maharashtra, through STF, CBI Mumbai and others, JT 2013 (6) SC1, which are quoted below:

“376. While dealing with such an issue, the court must not lose sight of the fact that meaning of “ends of justice” essentially refers to justice to all the parties. This phrase refers to the best interest of the public within the four corners of the statute. In fact, it means preservation of proper balance between the Constitutional/Statutory rights of an individual and rights of the people at large to have the law enforced. The “ends of justice” does not mean vague and indeterminate notions of justice, but justice according to the law of the land. (vide: State Bank of Patiala and others v. S.K. Sharma, MANU/SC/0438/1996: AIR 1996 SC 1669; and Mahadev Govind Gharge and others v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, MANU/SC/ 0597/2011: (2011) 6 SCC 321).

377. Thus, the law has to be interpreted in such a manner that it develops coherently in accordance with the principles, so as to serve, even-handedly, the ends of justice.”

17. In revision under Section 397 Cr.P.C., the revisional court cannot analyse and interfere in the findings of fact of the lower courts and appellate jurisdiction is not available to the revisional court to interfere in the findings of fact recorded by the courts below.

18. In view of the above discussions, the impugned orders show that the courts below have considered the correctness, legality and propriety of the matter and did not act with any irregularity at the time of giving findings of fact relating to revisionist.

19. There is no illegality, perversity or infirmity in the impugned orders. The revision lacks merits and is liable to be dismissed.

20. The revision is, accordingly, dismissed.

Order Date :- 1.11.2017

S.Sharma

 

 

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