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Jafar vs State Of U.P. And Anr. on 18 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 78

Case :- CRIMINAL REVISION No. – 1224 of 2019

Revisionist :- Jafar

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

Counsel for Revisionist :- Satya Prakash Srivastava,Babita Shukla,Kamal Kishor Mishra,Ram Prakash Shukla

Counsel for Opposite Party :- G.A.,Piyush Kant Vishwakarma

Hon’ble Anil Kumar-IX,J.

A perusal of the office report dated 08.11.2019 shows that notice issued to opposite party no. 2 has been received back after its service personally on opposite party no. 2, a copy of which has been placed on record. It has also been reported by the office that Shri Piyush Kant Vishwakarma, Advocate has filed his Vakalatnama on behalf of opposite party no. 2 which is available on record but even in revised turn no one is present on behalf of opposite party no. 2 to address the Court. Learned counsel for revisionist and learned A.G.A. for State are present.

This criminal revision under Section 102 Juvenile Justice (Care and SectionProtection of Children) Act 2015 [here-in-after referred to as the “Act”] is against the order dated 27.02.2019 passed by learned Special Judge/ First Additional Sessions Judge, Bhadohi, Gyanpur in Criminal Appeal No. 02/2019 (Jafar Vs. State of U.P.) in relation to the Case Crime No. 72/2018 under Section Juvenile Justice (Care and SectionProtection of Children) Act 2015, P.S.- Bhadohi, District- Bhadohi whereby learned appellate court has dismissed the appeal and affirmed the order dated 16.11.2018 passed by Juvenile Justice Board, Bhadohi.

Heard learned counsel for revisionist and learned A.G.A. for State.

The fact giving rise to present revision are that the first information report was lodged by opposite party no. 2 on 09.03.2018 at 22:15 hrs. alleging therein that the revisionist along with the co-accused Shahbaj has committed unnatural sex with his minor son Mohd. Reyan aged about six years. An application was moved on behalf of applicant before the Juvenile Justice Board claiming himself juvenile which was rejected by the Juvenile Justice Board, Bhadohi vide order dated 20.07.2018 against this order of the Juvenile Justice Board. Criminal Appeal No. 8 of 2018 was preferred by the applicant before the Special Judge/ First Additional Sessions Judge, Bhadohi, Gyanpur which was allowed by judgment and order dated 18.09.2018 and it was held that the revisionist is a child in conflict with law.

On being declared a child the revisionist moved his bail application before the Juvenile Justice Board which was rejected by order dated 16.11.2018. Against the order dated 16.11.2018, Criminal Appeal No. 02 of 2019 was preferred on behalf of the revisionist before Special Judge/First Additional Sessions Judge, Bhadohi, Gyanpur which was also rejected by order dated 27.02.2019.

Being aggrieved from the order dated 16.11.2018 of the Juvenile Justice Board and order dated 27.02.2019 of Special Judge/First Additional Sessions Judge Bhadohi. This revision has been preferred under Section 102 Juvenile Justice Act, 2015. The bail application of the revisionist was dismissed by the Juvenile Justice Board and the appellate court on the ground that in the event of the juvenile being released on bail there are chances of his exposure to moral, physical and psychological danger and if the revisionist was released on bail it would lead to be end of justice being defeated why that would be so is not indicated in the above orders.

Learned counsel for revisionist contended that opinion recorded by the District Probation Officer in its report that in the event the revisionist [juvenile in conflict with law] is released on bail there is possibility of his going in the company of known and unknown criminals. However, neither Juvenile Justice Board nor appellate court has detailed the basis to arrive at such a conclusion. He further submitted that it is merely a conclusion of the Probation Officer without any support of the evidence. It is further submitted that according to the facts on record the revisionist is below the age of majority and the reason given in both the impugned orders is not very convincing. It is further submitted that revisionist is already in custody since 09.03.2018 and co-accused Shahbaj has already been enlarged on bail. Impugned orders have not been passed keeping true spirit of law that has been laid down with regard to juvenile in conflict with law.

Learned counsel for revisionist contended that revisionist is innocent and has been falsely implicated. He has been declared juvenile but his bail application has been rejected without any convincing basis for giving findings that if the revisionist is released, he is likely to come in association with several known and unknown criminals and will be exposed to moral, physical and psychological danger or his release would defeat the ends of justice.

Learned A.G.A has opposed the prayer for bail and submitted that the nature of the offence committed by the revisionist is very serious.

I have considered submission of learned counsel for revisionist and learned A.G.A. and perused the record, the impugned orders passed by Juvenile Justice Board and Special Judge/First Additional Sessions Judge, Bhadohi along with entire material on record as well as the provision of the Act.

The provision of the bail to a juvenile is given in Section 12 of the Act. Section 12(1) of Juvenile Justice (Care and SectionProtection of Children) Act 2015 is as follows:-

“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.”

There is no such substantial material or evidence on record to show that by releasing on bail, the revisionist would come in association with any known criminal or his release would expose him to moral, physical and psychological danger. There is also nothing very substantial on record to show that the release of the revisionist on bail would defeat the end of justice.

In these circumstances, the Board was not quite justified in rejecting the bail application of the revisionist. Learned Special Judge/First Additional Sessions Judge also does not appear to have considered the provision of Section 12 of the Act in its proper perspective. Thus, both the impugned orders are not sustainable and are liable to be set aside.

In the result, the instant criminal revision is succeeds and is allowed. The impugned order dated 27.02.2019 passed by learned Special Judge/ First Additional Sessions Judge, Bhadohi-Gyanpur in Criminal Appeal No. 02/2019 (Jafar Vs. State of U.P.) and the order dated 16.11.2018 passed by Juvenile Justice Board, Bhadohi in Case Crime No. 72/2018 under Section 377 I.P.C. and Sections 5(G), 5(M) 6 POCSO Act, Police Station- Bhadohi, District- Bhadohi are hereby set aside and reversed. The bail application filed on behalf of revisionist stands allowed.

Let the revisionist Jafar through his natural guardian/ his father Mohd. Ayub be released on bail in Case Crime No. 72/2018 under Section 377 I.P.C. and Sections 5(G), 5(M) 6 POCSO Act, Police Station- Bhadohi, District- Bhadohi upon his father furnishing a personal bond with two solvent sureties each in like amount to the satisfaction of the Juvenile Justice Board with following condition:-

That the natural guardian/ father of the revisionist will furnish and undertake that upon release on bail the juvenile will not be permitted to go into contact or association with any known criminal or allowed to be exposed to any moral, physical and psychological danger and further that the father will ensure that juvenile will not repeat the offence.

Order Date :- 18.12.2019

Sharad/-

 

 

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