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Arun Kumar (Minor) Thru.Mother … vs State Of U.P. & Anr. on 27 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 6

Case :- CRIMINAL REVISION No. – 1391 of 2018

Revisionist :- Arun Kumar (Minor) Thru.Mother Smt.Siyawati

Opposite Party :- State Of U.P. Anr.

Counsel for Revisionist :- Sanjay Singh Chauhan,Alok Kumar Singh

Counsel for Opposite Party :- Govt. Advocate

Hon’ble Jaspreet Singh,J.

Heard learned counsel for the revisionist as well as the learned A.G.A. for the State-respondent.

The revisionist Arun Kumar (Minor) Thru.Mother Smt.Siyawati has moved this revision seeking bail in respect of his involvement in Case Crime No. 333 of 2017 under Sections 376 I.P.C. Police Station Phoolbehad Devsara District Khiri.

The instant revision has been preferred under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 against the order passed by Special Judge, POCSO Act, First ASJ, Khiri in Criminal Appeal No. 11 of 2018 whereby the bail application has been dismissed and the Sessions Judge has confirmed the order dated 01.05.2018 passed by the Juvenile Justice Board, Khiri. In the instant matter a First Information Report was lodged on 02.11.2017 with the averments that the minor daughter of the complainant namely S had gone to fields to answer the call of nature. It was further alleged that while she was returning, at that time, the revisionist had dragged the minor S and while undressing and removing her undergarments had bitten her private parts. The minor returned home crying and upon being coxed by her parents, she informed of the incident. It is in this fashion, the First Information Report came to be lodged.

Since the minor had recognized the revisionist, accordingly, the revisionist was apprehended and since he was juvenile and he was presented before the Juvenile Justice Board where his age was declared to be 15 years on the date of the occurrence. Thereafter an application for bail was moved before the Juvenile Justice Board which came to be rejected on 01.05.2018 against which the appeal was preferred before the Additional Sessions Judge, Khiri by means of Appeal No. 11 of 2018 which also was rejected on 28.08.2018 against which the present revision has been filed.

The submission of learned counsel for the revisionist is that the material on record including the report of the District Probationary Officer does not disclose any material upon which the Juvenile Justice Board or the Sessions Court could have formulated an opinion that by releasing the revisionist on bail it would amount to either defeating the ends of justice or in any manner the revisionist would be put to physical, moral or psychological danger and not to mention that the revisionist would be subjected to the company of known criminals.

It has been submitted that the basic ingredients for consideration regarding the bail application in so far as the minor is concerned has not been considered in the correct perspective and perhaps the two courts have been swayed only on the ground of seriousness of the offence which in any case is not the sole criteria.

In the aforesaid circumstances, it has been submitted that the revisionist has been in the Special Home since 03.11.2017 and the maximum sentence for which the revisionist can be detained in the Special Home is for a period of 3 years. In the aforesaid circumstances, it has been submitted that the two courts have not exercised their jurisdiction in the appropriate manner, coupled with the fact that the trial has yet no commenced and in the aforesaid backdrop, it is for the this Court to consider the totality of the circumstances, considering the welfare of the minor as well as the chances of him getting back and rehabilitated in the mainstream of the society.

The learned A.G.A has opposed the revision and has submitted that the two orders passed by the courts do not require any interference and as such the revision deserves to be dismissed.

The Court has considered the rival submissions and also perused the record.

As far as the provision of bail to a minor is concerned, the same is covered by Section 12 (1) of the J.J. Act, 2015. In the present case at hand, the age of the juvenile has been held to be 15 years on the date of the occurrence. The charges levelled against the revisionist are yet to be tested in trial. From the perusal of the record it would indicate that the DPO has submitted his report dated 19.04.2018 wherein a complete assessment of the revisionist has been conducted. From the perusal of the aforesaid, it indicates that the revisionist belongs to a family of labours. He has been taking education in Class 7 and also has two younger siblings. His relationship between the family members as well as the relationship with neighbours and friends has also been found to be cordial and normal. As far as his habits are concerned, it has a positive sign that he is interested in reading books and in religious activities. Most of his friends are also educated and the revisionist is not shown any tendency of delinquent behaviour. From the perusal of the medical report, it indicates that there are signs of bite marks with the teeth, however, it has opined that there may be a case of sexual assault, however, the same is subject to availability of FSL report.

Be that as it may, the charges against the revisionist are yet to be tested in trial. The material available on record in any case does not indicate that in case if the revisionist is enlarged on bail it may defeat the ends of justice or that the revisionist would be subjected to the association of known criminals and he may be subjected to physical, moral and psychological danger.

As far as bail to juvenile is concerned, the same is covered under Section 12(1) of the Juvenile Justice Act and a Co-ordinate Bench of this Court had the occasion to consider the circumstances regarding where the child in conflict with law approaches the Court for bail and what parameters are to be considered were examined in the case of Gurjeet Singh Vs. State of U.P. others reported in 2008 (105) Allahabad Crl. Cases 74 wherein relying upon the decision of the Apex Court in the case of Om Prakash Vs. State of Rajasthan and another reported in 2012 (5) SCC page 201 and it has been held as under:-

“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.”

A Co-ordinate Bench of this Court in the case of Nitin Kumar @ Tushar Vs. State of U.P. reported in 2019 (107) ACC 930 has considered the scheme of the Juvenile Justice Act and the relevant paras 8 to 11 read as under:-

8. Section 12 of Juvenile Justice Act, 2015 by the amended Act the criteria for bail under section 12 of the Juvenile Justice Act has not been changed and provision has been made under Section 12 of the Act that when any person accused of a bailable or a non-bailable offence and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution except when

1. if 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.

9. 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.

10. 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.

11. 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-accused 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.

In light of the aforesaid proposition which has been settled as above, this Court is of the view that the two courts below have not exercised their jurisdiction in the appropriate manner. Consequently, the two orders dated 28.08.2018 passed by the Additional Sessions Judge, Khiri in Criminal Appeal No. 11 of 2018 and the order dated 01.05.2018 passed by the Juvenile Justice Board, Khiri are set aside. The revisionist shall be entitled to be enlarged on bail subject to executing a personal bond by his guardian and two sureties in the like amount to the satisfaction of the Board concerned in terms of the following conditions:-

(i) that the natural guardian/father/mother Siya Ram or Mrs. Siyamati will furnish an undertaking that upon release on bail the juvenile will not be permitted to go into contact or association with any known criminal or expose to any moral, physical, danger and further that the father will ensure that the juvenile will not repeat the offence.

(ii) that the father/mother will further furnish an undertaking to the effect that the juvenile shall be placed in a school and will be encouraged to study and will not allow him to waste time in unproductive and mere recreational pursuits.

[Jaspreet Singh, J.]

Order Date: 27.02.2020

Asheesh

 

 

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