Kapil Verma vs State Of U.P. & Another on 23 November, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved on 9.11.2017

Delivered on 23.11.2017

Case :- CRIMINAL REVISION No. – 844 of 2017 [A.F.R.]

Petitioner :- Kapil Verma

Respondent :- State of U.P. Another

Counsel for Petitioner :- Sachin Tejashwi

Counsel for Respondent :- Govt. Advocate

Hon’ble Rang Nath Pandey,J.

1. This criminal revision has been filed against Judgment and Order dated 17.07.2017 passed by the Additional Sessions Judge, Court No.1, Balrampur in Criminal Appeal No.04 of 2017 confirming the order dated 02.05.2017 passed by Juvenile Justice Board, Balrampur in case crime No.563 of 2017 under Section 376 IPC and Section 5M/6 POCSO Act, Police Station Maharajganj Tarai, District Balrampur.

2. In brief, the facts of the case are that a first information report was lodged at Police Station Maharajganj Tarai, District Balrampur by the uncle of the victim stating that on 26.2.2017 at about 4.00 P.M., while his nice namely Km. Shayda was going to attend the call of nature, she was dragged by the juvenile accused into the field of sugarcane and thereafter rape was committed by him. As per the prosecution, medical examination of the victim was conducted and her statements under Sections 161 and 164 Cr.P.C. were recorded and on the basis of the medical report the rape with the victim was confirmed.

3. The Juvenile Justice Board declared the accused Kapil Verma as juvenile. An application for bail was moved on behalf of the accused which was rejected by the Board vide order dated 02.05.2017. Being aggrieved by the order of the Board, Criminal Appeal No.04 of 2017 was filed before the court of Additional Sessions Judge, Court No.1, Balrampur and by order dated 17.07.2017, the appeal was dismissed by the learned lower appellate Court. The judgment and order of the appellate court has now been challenged in this revision.

4. I have heard learned counsel for the revisionist as well as the learned Additional Government Advocate and perused the record.

5. The revisionist has assailed the order of the appellate court mainly on the ground that the appellate court has dismissed the appeal without considering the provisions of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 relying upon the report submitted by the District Probotion Officer, Balrampur on the basis of which the Board had rejected the bail of the juvenile, as such the orders of the courts below are wholly illegal and unjustified; the juvenile has no other previous criminal antecedent and there is no likelihood of the revisionist to come in association with criminals or would be exposed to criminality and therefore, in the interest of justice, he be released on bail. The contrary findings of the courts below are based on no evidence and perverse as the order has been passed on surmises and conjectgures. It has been lastely contended that the appellate Court passed the impugned order considering the gravity of the offence in utter disregard to the provisions of Section 12 of the Juvenile Justice Act and the orders of the courts below are wholly illegal, unsustainable and liable to be set aside.

6. In support of his case, learned counsel for the revisionist has placed reliance on Judgement rendered in the case of Ravi Vs. State of U.P. Another reported in 2015 (2) JIC 509 (ALL) as well as Judgment rendered in the case of Ranjeet Yadav (Minor) Vs. State of U.P. Another reported in 2015 (2) JIC 738 (All).

7. Per contra, learned Additional Government Advocate rebutting the above contentions submitted that rejection order dated 2.5.2017 of the Board and the appellate order dated 17.07.2017 in the facts and circumstances of the case are well reasoned, legal and proper and there is nothing wrong in rejecting the bail of the juvenile and both the courts below have taken into account the provisions of Section 12 of the Act as well as the report of the District Probation Officer and have rightly passed the orders rejecting the bail of the juvenile which do not require any interference by this Court in exercise of revisional jurisdiction.

8. It is an admitted fact that the victim was aged about 6 years and in order of dispense justice the bail of juvenile has rightly been refused. Section 12 of the Act reads as under:

“12. Bail of Juvenile.- (1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detailed 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 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.

(2) When such person having been arrested is not released on bail under sub-section (1) by the officer-in-charge 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. In Monu v. State of U.P. reported in 2011 (74) ACC 353 All HC 100, this Court considered the object of the Act and observed that merely by declaration of being a juvenile does not entitle a juvenile in conflict with law to be released on bail as a matter of right. The act intended a solemn purpose to achieve betterment of juvenile offenders but it is not a shelter home for those juvenile offenders who have got criminal proclivities and a criminal psychology. It has a reformative approach but does not compeltely shun retributive theory. The legislature has preserved larger interest of society even in cases of bail to a juvenile. The Act seeks to achieve moral, physical and psychological betterment of juvenile offender and, therefore if, it is found that the ends of justice will be defeated or that goal intended by the Legislature can be achieved by detaining a juvenile offender in a juvenile home, bail can be denied to him.

10. In Virendra v. State of U.P. (Criminal Revision No.345 of 2011) decided on 30 April, 2014, the Court held that exposure of juvenile to moral dangers is a ground to refuse bail. The Court while considering the prayer for bail of a juvenile would also see whether release on bail would expose him to moral, physical or psychological danger. Courts have to respect the intention of legislatiure whereby words physical and psychological have been added. In fact, society has always been sensitive towards offence against the women. Therefore, while considering the prayer for bail, court has to see whether release would not expose juvenile to the danger of retribution by the society. In cases of rape with child, such a possibility always exists. Where victim is a child, court would do well in refusing to exercise discretion vested under Section 12 of the Act. The court further held that bail can also be refused when the release would defeat the ends of justice. Ends of justice has been interpreted by the courts in different manners.

11. In State of Punjab v. Gurmit Singh and others reported in (1996) 2 SCC 384, the Hon’ble Apex Court made the following observation while dealing with a raped victim:

“Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indiffernce of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very sould of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape.”

12. In a recent judgment in Om Prakash v. State of Rajasthan and another reported in (2012) 5 SCC 201 the Hon’ble Supreme Court has cautioned the courts to be more sensitive in dealing with juvenile in cases of serious nature like sexual molestation, rape, gang-rape muder etc.

13. While dealing with the case TADA in Essa @ Anjum Abdul Razak Memon (A-3) v. The State of Maharashtra, through STF, CBI reported in JT 2013 (6) SC 1, the Hon’ble Apex Court in paragraphs 376 and 377 has interpreted the words “ends of justice” occurring in Section 12 of the Act as follows:

“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 Ors. v. S.K. Sharma, [JT 1996 (3) SC 722: AIR 1996 SC 1669]; and Mahadev Govind Gharge Ors v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, [JT 2011 (6) SC 321 : 92011) 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.”

14. In Virendra (Supra) the Court further observed that the act of rape shows depravity of mind. What is not decent or obscene, is immoral. Rape cannot be treated to be an act which can be dubbed as a child’s mistake committed during youthhood or adolescence. It is an act motivated with passion to ravish somebody’s modesty. In para 23, the Court further observed that “ends of justice” has not been defined under the Act but anything that militates against the justice would result in defeating the ends of justice. These days such crimes committed against minor girls are rampant. Society demands that guilty should be brought to justice and severe punishment should be imposed. Any interpretation taking a liberal consideration in such matters would definitely result in defeating the ends of justice. As observed earlier, rape followed by murder may be ‘rarest of rare case’ and it is definitely an aggravating factor which shows the depraved and perverted mind set, as such this Court is of the opinion that granting bail to such accused would defeat the ends of justice.

15. A perusal of the record reveals that the victim/ prosecutrix is a child aged about 6 years, the rape on her body was committed by a juvenile aged about 14 years at the time of commission of the crime. The medical report fully supports the commission of rape, meaning thereby, he was competent enough to constitute offence of rape. The victim has also supported the prosecution story in her statements under Sections 161 and 164 Cr.P.C. recorded before the Investigating Officer and the Magistrate. The report of the District Probation Officer, Balrampur indicates that the juvenile was in the company of bad persons which is indicative of the fact that the family of the juvenile had no control over the accused.

16. Considering the facts and circumstances of the case as also the fact that the victim of 6 years tender age was forcibly dragged and raped by the juvenile which was fully corroborated by the medical report and statements of the victim under Sections 161 and 164 Cr.P.C. and also the provision of Section 12 of the Act, release of juvenile on bail would amount to injustice to the victim as well as to the society.

17. In view of the aforesaid reasons, the Judgment and Order of the Appellate Court do no suffer from any illegality or infirmity.

18. Accordingly, the revision petition, being devoid of merits, is dismissed.

Order Date :- 23/11/2017

GK Sinha

[Rang Nath Pandey, J.]

 

 

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