RESERVED
Court No. - 23
Case :- CRIMINAL REVISION No. - 686 of 2019 Revisionist :- Guddu Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Om Narayan Pandey Counsel for Opposite Party :- G.A.,Chandra Bhushan Verma,Kamla Dinkar,Kamla Prasad,R.L. Varma
Hon'ble Virendra Kumar Srivastava,J.
1. This revision has been filed by Guddu (Juvenile) through his natural guardian/father Gendan Lal against the order dated 3.1.2019 passed by Special Judge, POCSO Act/VIII, Addl. Session Judge, Shahjahanpur in Crl. Appeal No. 101 (Guddu Vs. State of U.P.) and order dated 1.12.2018 passed by Juvenile Justice Board, Shahjahanpur (Board) in Cri. Case No. 86 of 2018 arising out of Case Crime No. 306 of 2018 u/s 363, 366, 302 IPC, 3(2)5 SC/ST Act and 7/8 POCSO Act, P.S. Khutar, Distt. Shahjahanpur, whereby the application filed for bail of juvenile has been rejected.
2. Briefly stated facts of this case are that daughter of O.P. no. 2 (victim) was missing since 23.7.2018 at 9:00 pm. Her dead body was found under the Gomati bridge situated at Bada Khutar road. An information was given by one Mandeep s/o O.P. no. 2 on 24.7.2018 at 12:20 pm at P.S. Khutar Distt. Sahajahanpur that her sister aged about 18 years has died due to drowning. On that information inquest report of the deceased was prepared and body was sent for post mortem. On same day at 17:22 pm, O.P. no. 2 filed a written information at concerned police station that juvenile accused Guddu with the help of his two real brothers Ashok and Chhotu had enticed away his daughter (deceased) on 23.7.2018 at 9:00 pm. Some people who saw him with his daughter had told him. On the said information FIR was lodged u/s 363, 366, 302 IPC, 7/8 POCSO Act and 3 (2) (V) SC/ST Act 1989.
After investigation charge sheet was filed. The revisionist was declared juvenile as his age was below than 16 years but his application for bail was rejected by the Board as well as the appellate court vide impugned judgment and order.
3. Heard learned counsel for the revisionist, learned counsel for O.P. no. 2 and learned AGA.
4. Learned counsel for the revisionist has submitted that the revisionist was juvenile at the time of occurrence. He is innocent. He has no criminal history. He has been implicated in this case along with his two brothers. There is no eye witness of the case. According to the information given by the brother of the victim the deceased had died due to drowning. He has not named any person as accused. He is languishing in jail since 27.7.2018. His brother co-accused Ashok has already been enlarged on bail by the coordinate Bench of this Court vide order dated 19.4.2019, passed in Crl. Misc. Bail Application no. 15229 of 2019. As per post mortem report no external injury was found on the body of deceased and cause of death has been shown due to ante mortem drowning.
4. Learned AGA and learned counsel for O.P. no. 2 have vehemently opposed the prayer made by the learned counsel for the revisionist and submit that revisionist accused is the main culprit and had enticed away the victim. There is no illegality or perversity in the impugned judgement and order passed by the Board and the appellate Court.
5. The Juvenile Justice (Care and Protection) Act, 2015 (Act) has been enacted with object to reform and protect the future career of children below the age of 18 years. The main purpose of this Act is to keep the juvenile out of company and society of habitual criminals and to keep them in place of safety. The parameter and guidelines for assessment of plea of bail of a juvenile has been provided in Section 12 of the Act which is as under:-
"When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is 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 1[or placed under the supervision of a Probation Officer or under the care of any fit institution of fit person] but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
When such person having been arrested is not released on bail under sub- section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."
6. From perusal of record it transpires that in this case three real brothers including juvenile accused have been named and FIR was lodged after completion of inquest proceeding. The report submitted by the District Probation Officer reveals that no adverse evidence regarding activities of the juvenile was found during the enquiry. In this report it has been clearly mentioned that after release on bail there is no possibility of juvenile to go into contact of any known or unknown criminal. Apart form the merit or demerit of this case it appears that nothing adverse comment has been made by the Probation Officer against the juvenile in his report.
7. From perusal of impugned judgement and order passed by the appellate Court as well as of Juvenile Justice Board, it transpires that both the Courts below have passed the impugned judgement and order in cursory manner only on the ground of gravity of the offence, without placing due reliance on the report submitted by the District Probation Officer as well as facts and circumstances of this case. The aforesaid orders are not in accordance with the mandate of Section 12 of the Act. The impugned judgement and orders are liable to be set aside.
Consequently, the revision succeeds and is allowed. Both the impugned judgement and orders dated 3.1.2019 and 1.12.2018 passed by the appellate Court as well as the Board respectively are hereby set aside.
Let the revisionist Guddu (juvenile) through his natural guardian/father Gendan Lal be released on bail in the aforesaid criminal case and be given into custody of his father/natural guardian on furnishing a personal bond with two solvent sureties of his relatives each in like amount to the satisfaction of Juvenile Justice Board, Shahjahanpur subject to following conditions:-
(i) That, Gendan Lal, father/natural guardian of the revisionist will furnish an undertaking that upon release on bail, the juvenile will not be permitted to go into contact or association with any known or unknown criminal or exposed to any moral or physical danger and will not indulge in any criminal activity and he will make best effort for improvement of juvenile.
(ii) That the revisionist and his father/natural guardian shall remain present before the trial court on each date fixed, either personally or through his counsel.
Order Date :- 29.5.2019 Vandana