Court No. - 17
Case :- CRIMINAL REVISION No. - 3987 of 2016 Revisionist :- Bhupendra Kumar @ Dharma (Minor) Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Bhishm Pal Singh Counsel for Opposite Party :- G.A.,Nirbhay Singh
Hon'ble Dinesh Kumar Singh-I,J.
Judgement reserved on 5.2.2018 Judgment delivered on 28.2.2018
1. This Criminal Revision has been preferred against the judgment and order dated 30.11.2016 passed by the Sessions Judge, Firozabad in Criminal Appeal No. 55 of 2016 (Bhupendra Kumar @ Dharma Vs. State of U.P.) whereby rejecting the appeal filed against the order dated 29.10.2016 of Juvenile Justice Board, the said order has been confirmed pertaining to Crime No. 411 of 2016 under Section 376-D I.P.C. and 3/4 P.O.C.S.O. Act, P.S. Narkhi, District Firozabad.
2. The facts in brief of the case are as follows:
3. One Rajveer Singh had lodged an F.I.R. on 2.7.2016 at 16.00 hours to the effect that on 2.7.2016 at about 1:00 p.m. when Smt. Meena (wife of the younger brother) had gone for natural call, she found Km. Sangeeta (Victim) aged about 9-10 years, daughter of the complainant in the field of 'Bajra' of Yogendra Singh in disheveled condition covered with blood. She took her along to her house where complainant and his wife (Nekse Devi) inquired from her as to what had happened. She divulged that accused revisionist, Bhupendra Kumar @ Dharma and accused Abhilakh had enticed her away to a field of ‘bajra’ and had forcefully committed rape upon her and fled from there leaving her groaning.
4. It is contended by the learned counsel for the revisionist that the findings recorded by the courts below regarding his coming in association of known criminal, his exposure to mental, physical and psychological danger and the defeat of ends of justice, if he was released on bail, were wholly erroneous as no material on record was collected by the prosecution to that effect. There was no observation made in the report of probation officer that the revisionist would be exposed to mental, physical or psychological danger and that in case he was released on bail, he would come in contact with any known criminal. The father of the revisionist had submitted an affidavit before the court below stating therein that he would exercise full control over his son and would not allow him to indulge in any criminal activity. Revisionist has no criminal antecedents. He had been falsely implicated on account of previous enmity between the parties because the grand-father of the revisionist namely, Motilal was murdered by the complainant, Rajveer Singh @ Pappu and his associates on 9.12.1997 regarding which they faced criminal trial S.T. No. 45 of 1999 and 251 of 1998 under Sections 148, 302/149, 307/149 I.P.C. and 25 Arms Act P.S. Sakroli, District Etah in which they were convicted vide judgment and order dated 21.7.2001. They have been released on bail from High Court during pendency of Criminal Appeal No. 2352 of 2001. The victim was not medically examined on the same date.
5. On the other hand from the side of the State, Learned AGA has filed counter affidavit stating therein that the present accused revisionist along with co-accused had enticed away the victim, a daughter of the complainant and both of them committed rape upon her which has been borne out by the statement of victim recorded under section 161 Cr. P.C. as well as under section 164 Cr. P.C. It is further stated that the accused was criminal minded and that there was likelihood of his repeating the identical crime in case he was released on bail. Therefore it was adverted that there was no infirmity in the orders passed by the Juvenile Justice Board as well as the lower appellate Court.
6. Heard the arguments of both the sides as well as perused the record.
7. According to the F.I.R., the prosecution version is that the victim was subjected to rape by the present accused revisionist as well as co-accused on 02.07.2016 at about 13.00 hours in a field of 'Bajra' belonging to Shri Yogendra Singh where she was found in bleeding condition by wife of younger brother of the complainant. Thereafter the victim revealed about commission of this heinous crime of rape upon her by the present accused as well as his companion, who had left her lying there after satisfying their lust. The F.I.R.
has been lodged promptly within 3 hours of commission of this offence the same day. The medical examination has also been conducted of the victim, who is a minor girl of just 9 to 10 years, wherein in Internal Genito-Anal Examination large number of injuries have been noticed and she was reported unconscious. Her radiological age is found to be only 12 years. The medical examination does indicate forced sexual intercourse which corroborates the statement of the victim under section 161 Cr. P.C. and 164 Cr. P.C. wherein she has taken name of the present accused with his companion to have committed rape upon her.
8. It is true that the District Probation Officer, Firozabad has submitted in its report dated 25/10/2016 that during enquiry made by him, it came to light on the basis of statement of the father of the juvenile as well as other residents of the said village namely, Nekram and Pannalal that there was old enmity between the two sides since last 15 years, because the complainant and his companions had committed murder of the grandfather of the juvenile, Hoti Lal, in which they had been convicted with life imprisonment but were bailed out from High Court during pendency of appeal. The daughter of the complainant (Victim) and Mania son of Veerpal who belonged to the family of complainant only, had illicit relations and that Mania had committed the present offence, but due to enmity the revisionist and his companion were falsely implicated. Mania and both the accused of this case were studying in the same school. The parents of the juvenile were illiterate and were labourers. The juvenile was a student of high school. There appeared to be lack of moral education and awareness in the juvenile. The father of the juvenile had assured that after bail of the accused he would keep complete control over him and would keep him away from all criminal elements.
9. It would be pertinent to reproduce here the relevant provision of bail for juveniles as provided under The Juvenile Justice (Care and Protection of Children) Act, 2015 (to be referred in short as Act of 2015).
Section 12 of the Act of 2015 provides as under:
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 any- thing contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed un- der 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 re- cord 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 sub- section (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 regard- ing the person, as may be specified in the order.
4. When a child in conflict with law is unable to fulfil 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.
10. It would be succinct to observe that merely by getting himself declared a juvenile does not entitle a juvenile in conflict with law to be released on bail as matter of right. The pious purpose of the Act is to achieve betterment of juvenile offenders, but the same should not be allowed to be subverted as a refuge for juvenile offenders who have got criminal proclivities and criminal psychology. The Act is legislated with a reformative ap- proach but it does not shun completely a retributive theory. The legislature has preserved larger interest of society even in cases of bail to a juvenile. The Act seeks to sub-serve to achieve moral, physical and psychological amelioration of juvenile offenders, therefore, if it is found that the ends of Justice would be defeated by enlargement of a juvenile on bail and that by detaining a juvenile in a juvenile home the object of legislation would be achieved, a juvenile offender may be denied bail.
11. In Virendra vs State of U.P. (Criminal Revision No. 345 of 2011) decided on 30 April 2014, this Court held that exposure of juvenile to moral danger is a ground to refuse bail. The Court while considering the prayer for bail of juvenile would also see whether re- lease on bail would expose him to moral, physical and psychological danger. The courts have to respect the intention of legislature whereby words physical and psychological have been added. In fact, society has always been sensitive towards offence against women. Therefore while considering the prayer for bail, the Court has to see whether release of a juvenile would expose him to danger of retribution by society. In Cases of rape with child, such a possibility does exist. Where victim is a child, Court would do well in refusing to exercise discretion vested under section 12 of the Act. The bail could also be refused when the release of the accused would defeat the ends of Justice. ‘Ends of Justice’ has been in- terpreted by courts in different ways. No universal formula can be laid down, however Justice to society as a whole has to be borne in mind while interpreting ‘ends of Justice’. Several Cases have been cited in Virendra’s case (supra), hence it would be pertinent to reproduce those paragraphs herein below for having better insight on the subject of grant of bail to a juvenile:
“17 . In case of Machhi Singh Vs. State of Punjab, (1983) 3 SCC 470, it has been found to be an aggravating factor “when the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis- a-vis whom the murderer is in a position of domination not trust”.
18 . Ends of Justice is converse of injustice. Prevention or remedying in- justice would always be in the ends of justice. It has been stated in 84th Re- port of the Law Commission that ‘Acquittal’ of many of facto guilty rapists adds to the sense of injustice’.
19 . Hon’ble Apex Court in the case of the State of Punjab vs Gurmit Singh and others, (1996) 2 SCC 384 made following observations 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 indifference 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 per- sonal 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 de- structive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape.”
20 . In a recent judgment given in the case of Om Prakash vs State of Ra- jasthan and another, (2012) 5 SCC 201, Hon’ble Apex Court has cautioned the courts to be more sensitive in dealing with juvenile in Cases of serious nature like sexual molestation, rape, gang rape, murder etc.. Relevant ex- tracts of the judgment made in paragraph – 3, 22 and 23 are being repro- duced below for reference: – “3. The Juvenile Justice Act was enacted with a laudable object of providing a separate forum or separate Court for holding trial of chil- dren/juvenile by the juvenile court as it was felt that children become delinquent by force of circumstances and not by choice and hence they need to be treated with care and sensitivity while dealing and trying Cases involving criminal offence ”
“22 ...... But when an accused commits grave and heinous offence and thereafter attempts to take statutory shelter under the guise of be-
ing a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of Justice.”
“23 . Hence, while the courts must be sensitive in dealing with the juvenile who is involved in Cases of serious nature like sexual mo- lestation, rape, gang rape, murder and host of other offences, the ac- cused cannot be allowed to abuse the statutory protection by attempt- ing to prove himself as a minor. ”
In paragraph 33 of the judgment, Court observed that ‘statutory protection of the Juvenile Justice Act is meant for minors who were innocent law- breakers and not accused of matured mind who use the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him, otherwise would amount to subverting the course of Justice’.
In Para 38 of the judgment, Hon’ble Court observed that this would clearly be treated as an effort to weaken the justice dispensation system. Para – 38 of the judgement is being reproduced below: – “38 . The Juvenile Justice Act which is certainly meant to treat a child accused with care and sensitivity offering him a chance to re- form and settle into the mainstream of society, the same cannot be allowed to be used as a ploy to dupe the course of justice while con- ducting trial and treatment of heinous offences. This would clearly be treated as an effort to weaken the justice dispensation system and hence cannot be encouraged.”
21 . While dealing with the case of TADA reported in JT 2013 (6) SC 1 (Essa alias Anjum Abdul Razak Memon (A – 3) vs the State of Maharastra through STF, CBI Mumbai), Hon’ble Apex Court has observed in Para 376 and 377 while interpreting words “ends of Justice” occurring in section 12 of the Act as under: – “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 public within four corners of the statute. In fact, it means preserva- tion of proper balance between the constitutional/statutory rights of an individual and rights of the people at large to have the law en- forced. 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 and others vs SK Sharma, [JT 1996 (3) SC 722: AIR 1996 SC 1669] and Mahadev Govind Gharge and others vs the Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, [JT 2011 (6) SC 321: (2011) 6 SCC 321] 377 . Thus, the law has to be interpreted in such a manner that it de- velops coherently in accordance with the principles, so as to serve, even-handedly the ends of justice.”
22 . The act of rape shows the depravity of mind. What is not decent or ob- scene, is immoral. Rape cannot be treated to be an act which can be dubbed as a child’s mistake committed during youth-hood or adolescence. It is an act motivated with passion to ravish somebody’s modesty.
23 . Ends of Justice has not been defined under the Act but anything that militates against justice would result in defeating the ends of justice. These days such crimes committed against minor girls are rampant. Society de- mands 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 mindset, as such this Court is of the opinion that granting bail to such an accused would de- feat the ends of Justice.
24 . A citizen’s claim to equality before the law is a claim of justice. Justice has been termed as the highest virtue. It has also been equated with fairness. Fairness connotes fairness to all i.e. equal treatment to all. Sense of injustice is powerful human emotion. It is strongest when a person’s own interests are harmed, but it also aroused in civilised people when they witness wrongs done to others. Ultimate object of every legal system is to secure justice which is at the centre of moral and social philosophy. The instinct for justice leads us to believe that right, and not might, is the true basis of society. The principles of justice that define duties and rights should be neutral with re- spect to compacting conception of good life. Defeat of ends of justice is bound to result in injustice which produces conflict within the individual and sets him at variance with himself and with all who are just. Injustice is inseparable from virtue which consist of ethics and justice in universal sense. Injustice in the particular sense is the injustice that causes harm to others. Virtue-based approach connects justice to reflection about good life. This approach ensures that justice means giving people what they morally deserve- allocating goods to reward and promote virtue. It is thus apparent that the concept of justice lies at the heart of moral philosophy where right- eousness, fairness and truths are the basic values and it should include peo- ple from all walks of life. Therefore, it is safe to conclude that well-being of the community takes precedence over the liberty and preventing injustice would always be a pursuit of justice. Leaving society to live with persons of perverted nature would be an affront to the dignity of human beings and tends to promote anarchic and unrest in society which is sure to defeat the ends of justice.
28 . After all victim, a child, also needs justice for whose need and care Act has been enacted. Such offences are crimes against society and society feel- ing desperate and outraged, too needs justice. Thus, justice has to be ensured to both author vis-a-vis victim and society. Section 12 of the Act while em- powers Court to grant bail to juvenile, it specifically puts a rider which is couched in negative. Court would be failing in its duty in not giving due weightage to the above caveat.
29 . From the above, it is apparent that aim of the Act is to take care of both child in conflict with law as well as child who needs care and protection, as such, section 12 of the Act cannot be interpreted in a manner so as to give an advantage to only juvenile in conflict with law ignoring the need and welfare of the victim child. On a general power to grant bail, a specific rider has been placed which is very often forgotten. Such a rider has been placed in Act, 1986 and in some other laws. While considering prayer for bail un- der section 12 of the Act, the Judge has to ensure that the order proposed to be passed does not violate any of the conditions contemplated by section 12 of the Act. It cannot be interpreted to work only for the benefit of juvenile ignoring the cries of the victim child whenever, a child becomes victim of offences, let alone heinous offences like murder or rape, society craves and cries for justice. By showing misplaced sympathy to juvenile, who has per-
petrated offence like rape/murder, victim (child) and the society is denied justice which is not and cannot be the intention of law.”
12. In the light of above interpretation of law in the matter of granting bail to a juvenile, the facts in the case on hand need to be considered.
13. In the case at hand it is absolutely clear that a minor girl child of approximately 10 years has been sexually abused by the present accused revisionist along with his companion by committing rape upon her, who was helpless. Her modesty was ravaged so gruesomely that she received various injuries as have been found in her internal examination. She was left in breeding condition after rape. FIR has been lodged promptly and the medical examination has been also done promptly. This kind of gruesome act would leave a deep scar on the psychology of the said child. Although the defence has been sought to be established that he has been falsely implicated due to enmity, but at this stage looking to the fact that medical examination has corroborated the incriminating statement of the victim under section 161 Cr. P.C. and 164 Cr. P.C. in which she has clearly stated about the commission of rape by the present accused revisionist with a co- accused, that reflects the depraved mentality of the accused. The possibility of retribution from the complainant’s side against the accused revisionist could not be ruled out in case he is released on bail. It cannot be believed that the accused revisionist did not understand the nature of offence that he is alleged to have committed. Commission of such an offence reflects his mental maturity and depravity. Therefore, in view of this Court, the ends of justice would not be met in case the accused is released on bail.
14. No infirmity is found in the impugned orders of the Juvenile Justice Board as well as of the lower appellate Court. This revision deserves to be dismissed and is accordingly dismissed.
Order Date:-28.2.2018 Mandhani