(Per: Pritinker Diwaker, J) (26.7.2019) Heard Sri Narendra Gupta, learned counsel for the revisionist and Sri Ajay Srivastava, learned counsel for the State. None for complainant-respondent no.2 though served.
2. Present revision has been filed against the order dated 25.10.2017 passed by the Sessions Judge, Sitapur in Criminal Appeal No.61 of 2017, dismissing the appeal preferred by the revisionist assailing the order dated 14.9.2017 passed by Juvenile Justice Board, Sitapur, arising out of Crime No.227 of 2017, under Sections 341,342,312,313,376 of IPC and 3/4 POCSO Act, Police Station Sidhauli, District Sitapur.
3. Facts of the instant case, in brief, are that on 2.6.2017, FIR was lodged by the mother of the prosecutrix, alleging in it that when her daughter had gone to fetch water from the hand pump, she was taken by the wife of one Chander to the house of the revisionist; the door was bolted from outside and then the revisionist committed rape on the prosecutrix. After about half an hour, door was opened by the wife of Chander, who asked the prosecutrix not to disclose the incident to any one. It is stated that thereafter, whenever her daughter used to fetch water, the revisionist used to commit rape on her and when 17 days prior to 2.2.2017, prosecutrix disclosed the fact to the revisionist that she is pregnant, the revisionist with the help of one Harish Chandra gave certain medicines to the prosecutrix, resulting her abortion. She states that since then the prosecutrix was subjected to threat by the accused persons. Based on this FIR, offence under Sections 341,342,312,313,376,504,506 of IPC and 3/4 of POCSO Act was registered against the revisionist and other accused persons.
4. The revisionist filed an application before the Principal Magistrate, Juvenile Justice Board, Sitapur under Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ''Act of 2015') for grant of bail, which was rejected on the ground that if the revisionist is released on bail, he would be exposed to moral, physical or psychological danger.
5. The order passed by the Principal Magistrate was assailed by the revisionist by way of filing an appeal before the Sessions Judge, Sitapur, which has been dismissed by the order impugned dated 25.10.2017, mainly on the ground that the revisionist has committed a serious offence of rape and, if he is released on bail, this would defeat the ends of justice.
Learned appellate court has further held that the judgment of the trial court has been passed after considering all the aspects of the case; the same is based on sound reasons and does not call for any interference.
6. Learned counsel for the revisionist submits that both the courts below have completely overlooked the provisions of Section 12 of the Act of 2015 and more particularly, the report dated 11.9.2017 submitted by the District Probation Officer, Sitapur (Annexure-SA-1) to the supplementary affidavit filed by the revisionist. He submits that in the report, nowhere it has been stated by the Probation Officer that if the revisionist is released on bail, he would be exposed to moral, physical or psychological danger and that if he comes back to the same atmosphere, ends of justice would be defeated. He submits that if the entire report of the Probation Officer is seen, the same appears to be in favour of the revisionist and it is apparent that the revisionist is a 12th class pass student; his discipline in his house is satisfactory; his behaviour with the villagers has been found satisfactory and most importantly, the villagers did not disclose anything adverse against him. However, without there being any basis or material, in the last line of the report, it has been mentioned that on the basis of information given by the villagers, social atmosphere of the revisionist does not appear to be favourable. He submits that there is absolutely nothing adverse in the report of the Probation Officer that if the revisionist is released on bail, he would be exposed to moral, physical or psychological danger and that the words "he would be exposed to moral, physical or psychological danger" have been mentioned in the impugned order just because they are described in the relevant provisions of law.
7. Learned counsel for the respondent/State, however, submits that the application and the appeal of the revisionist have rightly been rejected by the Courts below.
8. Before drawing any conclusion regarding the correctness or otherwise of the orders impugned, a glance of the relevant provisions of Section 12 of the Act of 2015 becomes necessary, which is reproduced as hereunder for ready reference:
"Section 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.
(2) When such person having been apprehended is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.
(4) When a child in conflict with law is unable to fulfill the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."
9. In the present case, in compliance of the provisions of the Act of 2015, a report of the concerned Probation Officer was called by the Juvenile Justice Board and following are the main points in the said report:
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10. A bare perusal of the said report makes it clear that it is nowhere mentioned in it that, if the revisionist is released on bail, he would come into association with any known criminal or it would expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. Rather the report of the Probation Officer supports the case of the revisionist.
11. Perusal of Section 12 of the Act of 2015, makes it clear that ordinarily, the bail has to be granted to the juvenile and the same can be rejected only when it appears to the court concerned that either of three conditions laid down in this provision are in existence. The orders of the Juvenile Justice Board and the Sessions Court go to show that while passing the same, both the courts below have not, at all, considered the report of Probation Officer in a correct manner and rejected the application of the revisionist in a mechanical manner simply by reproducing few words of Section 12 of the Act of 2015. Further, the courts below have presumed many things of their own, which is not part of record of Probation Officer. These aforesaid two orders passed by the Courts below do not stand on the touchstone of the relevant legal provisions.
12. From the material available on record, it is also apparent that no proper reason whatsoever has been assigned by the Juvenile Justice Board on the basis of which, application of the revisionist could be rejected. Rather the report of the Probation Officer is in favour of the revisionist.
13. Considering the facts and circumstances of the case and the report of the Probation Officer, the present revision is allowed. Orders impugned are hereby set aside.
14. The revisionist, who has already spent more than two years in Jail, is directed to be released on bail of his guardian or parent furnishing a bond in the sum of Rs.50,000/- with one surety for the like sum to the satisfaction of the concerned Juvenile Justice Board. The revisionist is directed to appear before the said Board on all the dates, as are given to him.
15. It has been informed that there is no progress in the trial and even the statement of the prosecutrix has not been recorded. If this is correct, the trial court is directed to conclude the trial expeditiously because keeping pending such trial for long period, would defeat the ends of justice and various provisions of law.
16. It is made clear that this Court has not expressed any opinion on merits of the case and the trial court would be at liberty to decide the trial strictly in accordance with law on the basis of evidence so adduced by the parties.
Order Date :- 26.7.2019 RKK/-
(Pritinker Diwaker, J.)