Court No. - 86
Case :- CRIMINAL REVISION No. - 1049 of 2020 Revisionist :- Himanshu Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ravindra Pratap Singh,Anurag Vajpeyi,Sandeep Singh Counsel for Opposite Party :- G.A.
Hon'ble Umesh Kumar,J.
The revisionist is an accused in the aforesaid criminal case and he was declared juvenile by the Board on 19.09.2019 in conflict with law. The application for bail moved on behalf of the revisionist was rejected by the Board vide order dated 15.10.2019 on the ground that his release on bail is likely to bring him into association with any unknown criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. Being aggrieved the revisionist preferred an appeal before Special Judge (POCSO Act)/Additional Sessions Judge,Court No.8, Ghaziabad which was rejected vide order dated 03.02.2020, hence this revision.
Heard learned counsel for the revisionist and learned AGA for the State and perused the impugned orders as well as material placed on record.However, despite service of notice, none has appeared on behalf of opposite party no.2.
Learned counsel for the revisionist submitted that the Board has rejected the bail application on the basis of surmises and conjecture whereas the report of District Probation Officer was in his favour. There was nothing on record to bring the case of the revisionist within the purview of any of the exceptions provided in Section 12 of the Act.
The bail application of Juvenile has to be decided in accordance with the provisions of Section 12 of the Act which reads as follows:
12. Bail of juvenile. - (1) 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 [or placed under the supervision of a Probation Officer or under the care of any fit institution or 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.
The aforesaid provision provides that a juvenile accused has to be released on bail unless there are 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. No such report was filed by the Probation Officer or the police so as to bring the case of the revisionist within the exceptions provided in Section 12 of the Act.The report of the District Probation Officer was only to the effect that the parents of the revisionist have no control over the accused-revisionist and he requires proper guidance and supervision. There is nothing on record to show that the revisionist would come in association with any known criminal or his release would expose him to moral, physical or psychological danger. There is also nothing on record to show that the release of the revisionist on bail would defeat the ends of justice. The gravity of the offence is not a relevant consideration for grant of bail to a juvenile.However, learned counsel for the revisionist has also stated on merit that in the medical report of the victim, her hymen was found intact. It cannot be said that rape in any sense was committed by the revisionist. Though the victim in her statement recorded under Section 164 Cr.P.C. has stated that the revisionist has committed certain wrong with her but she does not know what is a wrong act. Thus mere assertion that certain wrong was committed by the revisionist cannot be termed to be an offence under Section 376AB I.P.C.
In these circumstances, the Board was not justified in rejecting the bail application of the revisionist.
Learned Sessions Judge has also not considered the provisions of Section 12 of the Act in proper perspective. Thus, both the impugned orders are not sustainable and are liable to be set- aside.
Revision is allowed. The impugned order dated 03.02.2020 passed by Special Judge (POCSO Act)/Additional Sessions Judge,Court No.8, Ghaziabad in Criminal Appeal No.205 of 2019 and the order dated 15.10.2019 passed by Juvenile Justice Board, Ghaziabad in Case Crime No.935 of 2019 under Sections 376AB I.P.C. and 5/6 of The Protection of Children From Sexual Offences Act, Police Station Sihani Gate, District Ghaziabad are set aside.
Let the revisionist-Himanshu involved in aforesaid case be released on bail subject to executing a personal bond by his mother (natural guardian) with two solvent/reliable sureties each in the like amount to the satisfaction of the Juvenile Justice Board, Ghaziabad subject to the following conditions:
(i) that the natural guardian/mother Smt. Usha will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any known criminal or be exposed to any moral, physical or psychological danger and further that the father will ensure that the juvenile will not repeat the offence.
(ii) that the father will further furnish an undertaking to the effect that the juvenile will be placed in a school and encouraged to his studies and not allowed to waste his time in unproductive and mere recreational pursuits.
(iii) The Juvenile-Himanshu and his mother Smt. Usha will report to the District Probation Officer, Ghaziabad on the first Monday of every month with effect from the first Monday of the month next after release from custody, and, if during any calendar month the first Monday falls on a holiday then on the following working day.
(iv) The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Ghaziabad on such periodical basis as the Juvenile Justice Board determines.
Order Date :- 22.9.2021 MN/-