HIGH COURT OF MADHYA PRADESH
SINGLE BENCH
BEFORE: JUSTICE J.K. MAHESHWARI
Criminal Revision No. 211/2018
Dipesh through Legal Guardian Father Joginder Singh
Vs.
State of Madhya Pradesh
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Shri Vivek Singh, learned counsel for the applicant.
Ms. Swati Ukhale, learned Government Advocate, for the
respondent-State.
———————————————————————–
ORDER
(24/05/2018)
This revision has been filed under Section 53 of the
Juvenile Justice (Care and Protection of Children) Act,
2000 arising out the order dated 13.11.2017 passed in
Criminal Appeal No. 364/2017 by the Sessions Judge,
Ujjain and also against the order dated 13.10.2017
passed by the Principal Magistrate, Juvenile Justice
Board, Ujjain, rejecting the application of applicant filed
under Section 12 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (for short ‘Act of 2015’).
2. As alleged, an offence was registered against the
applicant and other persons on 31.8.2017 by Police
Station Neelganga, Ujjain at Crime No.572/2017 for the
offences punishable under Sections 376(2)(d), 506, 342,
363 of the Indian Penal Code and Sections 3,4,7 and 8 of
the Protection of Children from Sexual Offences Act, 2012
(for short ‘POCSO Act’).
3. The prosecution alleges that prosecutrix was a minor
and below the age of 18. On 29.8.2017, she was called by
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the applicant at Chaupati near Gurudwara at about
4.30 pm. It is further alleged that applicant took the
prosecutrix on his motorcycle on the guise of
celebrating her birthday in Hotel Mittal Paradise where
two other friends of the applicant also reached and they
all took the drinks. The drink of the prosecutrix was
already mixed with some intoxicating substance due to
which she became unconscious. Thereafter, in the
evening, at about 6.30 pm applicant took the
prosecutrix in a house situated at Vivekanand Colony
and committed rape with her.
4. The trial court while rejecting the application
under Section 12 of the Act of 2015 has observed that
the age of the applicant is above 16 years and the
offence has been committed by him in a planned way.
The possibility of further commission of offence by him
cannot be ruled out and in the report of police and the
safety of the juvenile was found in danger.
5. On filing the appeal, the appellate court referring
Section 12 of the Act of 2015 has observed that the age
of the applicant is16 years 9 months and 20 days. It is
said that CSR report indicates that applicant is a
Malkhamb player and saved lives of several persons
during “Simhastha”, but, the offence has been
committed in a planned way, which indicates that
applicant is not in the control of his parents and he
may come in association with known criminals,
therefore, his release may not be in the public interest.
The appellate court has also observed that as per
Section 15(1) read with Section 18(3) and as defined in
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Section 2(33) of the Act of 2015 in a case of heinous
offence, if the juvenile is between 16 to 18 years, the
court may send such case for trial to the Children’s
Court. Considering the aforesaid facts and
circumstances, the appellate rejected the appeal of the
applicant.
6. After having heard learned counsel appearing on
behalf of both the parties and on perusal of the
provisions of Section 12 of the Act of 2015 and its
proviso, it is apparent that release of juvenile on bail is
his right. The release on bail to such person may be
refused where there appears reasonable grounds to
believe 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.
The report of the Probationary Officer is available on
record. The said report does not indicate any of the said
contingency. Simultaneously, the applicant is a
Malkhamb player and has done the act of bravery
during “Simhastha” and saved lives of several persons.
In teen age the possibility of attraction with the
opposite sex cannot be ruled out, however, looking to
the report of Probationary Officer, at present, no
reasonable ground is made out to believe that applicant
would come in association with the known criminals or
to commit any offence, therefore, his release may not be
directed.
7. It is to observe here that the appellate court while
referring the provisions of Section 2(33) in a case of
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heinous offence and Section 15(1) read with Section
18(3) of the Act of 2015 has observed that Juvenile
Justice Board may refer the case to the Children’s
Court for trial. Firstly, as per order dated 15.1.2018,
the trial court has observed as under:
“fof/k izfrdwy fd’kksj ds ekufld ,oa euksoSKkfud ijh{k.k gsrq
fd’kksj U;k; cksMZ ds lnL;ksa }kjk i`Fkd ls fof/k izfrdwy fd’kksj
ls ppkZ dh xbZA fd’kksj U;k; cksMZ }kjk fof/k izfrdwy fd’kksj ds
ijh{k.k ds laca/k esa mlls foLr`r ppkZ o ?kVuk ds laca/k esa
okrkZyki fd;k x;kA
fof/k izfrdwy fd’kksj ls ifjppkZ dh xbZA ifjppkZ esa
vipkjh }kjk rF; crk;s x;s fd ihfM+rk dk ?kVuk fnukad dks
tUefnu FkkA tUefnu eukus ds fy, ihfM+rk us mls ogka cqyk;k
FkkA tUefnu dh ikVhZ eukus ds fy, og] ihM+hrk rFkk vU; lkFkh
feRry isjkMkbZt gksVy x;s FksA tgka muds }kjk fMªad dh xbZA
vipkjh ls dh xbZ ifjppkZ ls ihM+rk ls og iwoZ ifjfpr gksuk
izdV gksrk gSA vipkjh ls dh xbZ ckrphr ds nkSjku mlus izdV
fd;k fd mlds }kjk flagLFk 2016 esa rhu yksxksa dks Mqcus ls
cpkdj mudh tku cpkbZ rFkk og Lohfeax esa LVsV ysoy rd
[ksyk gSA vipkjh ls dh xbZ ckrphr ls izdV gksrk gS fd og
dfFkr vijk/k ds ifj.kke dks u lerq gq, laHkor% laxfro’k o
u’ks dh voLFkk esa mDr vijk/k esa lafyIr gqvk gSA vipkjh
ckrphr ls prqjpkyd izo`fRr dk u gksdj lk/kkj.k izd`fr dk
ckyd nf’kZr gksrk gSA bl izdkj fof/k izfrdwy fd’kksj dk ijh{k.k
fd;s tkus ls ;g izdV gksrk gS fd fd’kksj }kjk dk;Z ds ifj.kke
o vkpj.k dks lers gq, iwoZ lqfu;ksftr ;kstuk cukdj ?kVuk
dkfjr fd;s tkus laca/kh rF; ugh ik;s x;s gSA
bl izdkj ckyd ds loksZRre fgr dks n`f”Vxr j[krs gq,
izdj.k dk fujkdj.k fd’kksj U;k; cksMZ }kjk fd;k tkuk mfpr
izdV gksrk gSA
izdj.k vijk/k fooj.k gsrq fu;r fd;k tkrk gSA
izdj.k vijk/k fooj.k gsrq fnukad 29@01@18 dks is’k
gksA””
8. In addition to the aforesaid, as per Section 15(1) of
the Act of 2015, it is the duty of the trial court to make
an assessment of heinous offence in which if a juvenile
has committed a heinous offence and completed the
age of 16 years, the Board shall conduct a preliminary
assessment with regard to his mental and physical
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capacity to commit such offence, ability to understand
the consequence of the offence and the circumstances
in which the alleged offence is committed and thereafter
the Board may pass an order as per sub-section (3) of
Section 18 of the Act of 2015. As per the said provision,
the Board is required to pass an order to try the case
by the Children’s Court having jurisdiction to try such
offence. In view of the order dated 15.1.2018 passed by
the Juvenile Board, the aforesaid contingencies have
been ruled out, therefore, the observation made by the
Sessions Judge is liable to be struck down.
9. In view of the foregoing discussion, this revision is
hereby allowed. The order passed by the Juvenile
Board and the Sessions Court stand set aside. The
Juvenile Board is directed to release the applicant on
the terms and conditions so fixed in the facts and
circumstances of the case.
10. With the aforesaid, this revision stands allowed
and disposed of.
(J.K. Maheshwari)
Judge
rs shukla
Digitally signed by
RAGHVENDRA SHARAN SHUKLA
Date: 2018.05.25 16:40:06
+05’30’
