Reserved
Court No. - 53
Case :- CRIMINAL REVISION No. - 1879 of 2017 Revisionist :- Iltaf Hussain Alias Intaf (Juvenile) Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Hari Pratap Gupta,Anand Pal Singh,Harish Chandra Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
1. This revision under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the 'Act') has been filed by Iltaf Hussain alias Intaf, a child in conflict with law from a judgment and order of Sri Atul Kumar Gupta, the then Sessions Judge, Kushinagar, dated 27.04.2017 in Criminal Appeal no.32 of 2017 dismissing the appeal and affirming an order dated 21.03.2017 passed by the Juvenile Justice Board, Kushinagar in Case Crime no.249 of 2016, under Sections 363, 366, 376 IPC and Section 3/4 of the POCSO Act, Police Station Kasia, District Kushinagar, rejecting the bail plea of the revisionist.
2. The prosecution story as set out in the First Information Report lodged by one Surendra Singh son of Ramayan Singh, the father of the prosecutrix is to the effect that the informant is a native of Village and Post Kurmouta Manjharia, Police Station Kasia, District Kushinagar; that his daughter, the prosecutrix aged about 15 years went missing on 24.04.2016 at about 10 o' clock in the night; that after considerable efforts at tracing her out, it was revealed that the revisionist, who worked for a certain Vijendra Singh son of Sriniwas Singh as a tractor driver, had enticed away his daughter by blandishment and confined her somewhere; that he expressed an apprehension in his information to the police that some untoward happening may not have befallen his daughter; that the informant's family members and natives of the village had reported that they had seen the revisionist pay lurking visits to the informant's house; and, that with this much of information a request for registration of a case and necessary action in the matter was made.
3. Upon recovery of the prosecutrix her statement under Section 161 Cr.P.C. was recorded by the police on 04.05.2016, where she stated that the revisionist is employed as a driver with their neighbour, Vijendra Singh, whom she recognized but did not have any kind of social interaction with; that on 25.04.2016 one Jaswant came over to ask for something described in vernacular as Lagandi for the tractor, when she was home alone; that close on heels of Jaswant, Vijendra also came placed a handkerchief to her mouth that caused her to loose consciousness; that the two (Jaswant and Vijendra) carried her away somewhere while she was unconscious, and, when she regained consciousness, she found herself at Ramkola Station (possibly bearing reference to that Railway Station), where Jaswant and Vijendra were standing close by and asking her to accompany the revisionist; that upon her refusal to accompany the revisionist, the two forced her at knife point to board a train along with the revisionist; that the revisionist took the prosecutrix to Lucknow and housed her there in a quarter and ravished her by employment of force; that she cried, wept and beseeched him, but to no avail; that two days later the revisionist took her to his native village Morvan (Police Station Ramkola); that there the police picked up trail, traced her out and brought her back; and, that it was Jaswant and Vijendra who forcibly carried her off and coerced her to go along with the revisionist, who raped her. The prosecutrix was produced by the Investigating Officer before the Magistrate for the purposes of recording her statement under Section 164 Cr.P.C. The stand taken by the prosecutrix in her statement under Section 164 Cr.P.C. can be best described in her own words in Hindi vernacular (extracted from the record of the statement annexed as Annexure 5 to the affidavit in support of the revision that is borrowed from a record of it in Parcha CD-6 of the case diary):-
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4. The first information version, the circumstances attending recovery of the prosecutrix from the native village of the revisionist by the police, her statement under Section 161 Cr.P.C. to the police and above all her statement to the Magistrate under Section 164 Cr.P.C. do clearly disclose a prima facie case of a nature against the revisionist that if he were an adult offender, in the opinion of this Court, would not be entitled to bail.
5. The learned counsel for the revisionist has, however, attempted to show that the prosecution case on merits against the revisionist is flimsy and for the purpose he has relied on the medically determined age of the prosecutrix, which has been opined to be 17 years, and, which according to the learned counsel for the revisionist takes out the revisionist's case out of the teeth of the POCSO Act going by the settled principle of law that the medically determined age of a victim has to be construed with a margin of error of two years on either side that goes to the benefit of the accused. According to the learned counsel, therefore, the prosecutrix by her medically estimated age would be construed as a major excluding the POCSO Act from being attracted to the revisionist's case. He further argued that the medico-legal reports of the prosecutrix annexed do not show a case of rape, where it has been opined in the report dated 10.05.2016 that on the basis of clinical or pathological reports, no evidence of sexual assault is found. In this connection he has invited the attention of the Court to the medico-legal report dated 15.05.2016 at Page 53 of the paper- book issued by the office of the Chief Medical Officer, Kushinagar. It needs no gainsaying that the period of time between the alleged sexual assault and the medical examination would have erased detectable traces of the crime. Equally, it is a firm principle that the sole testimony of the prosecutrix, consistent and firm about rape suffered by her, if not belied by other circumstances, is good enough to sustain a conviction. Certainly, in this case the testimony of the prosecutrix is good enough not to avail an adult offender to the concession of bail. But the revisionist is a juvenile and different parameters of the law are applicable to him in the matter of determination of his right to be released on bail.
6. A brief recapitulation of the course of proceedings about the efforts to secure bail by the revisionist would indicate that the revisionist raised the plea of juvenility in the present crime before the court of the learned Additional Sessions Judge, Court no.2, Kushinagar, that was registered as a separate miscellaneous case. Witnesses were summoned and examined before the learned Additional Sessions Judge and by an order dated 02.02.2017 passed by the Additional Sessions Judge, Court no.2, Kushinagar at Padrauna, the revisionist was declared a juvenile. On the edifice of the said declaration, the revisionist made an application for bail to the Juvenile Justice Board, Kushinagar, that came to be rejected by an order of the Board dated 21.03.2017. The said order was assailed in appeal by the revisionist before the Sessions Judge, invoking his right under Section 101 of the Act. The appeal was registered as Criminal Appeal no.32 of 2017 on the file of the learned Sessions Judge, Kushinagar and came up for determination before the learned Sessions Judge on 27.04.2017, when it was ordered to be dismissed by the judgment and order impugned.
7. Concurrent failure to secure bail before the Board and the learned Sessions Judge in appeal has brought the revisionist to this Court in revision under Section 102 of the Act.
8. Learned counsel for the revisionist has emphasized that bail to a juvenile in a non-bailable offence is the rule that is embodied in Section 12 of the Act and the same can be denied alone in a situation where the case of the revisionist falls in any of the three excepted categories engrafted in the proviso to Section 12(1) of the Act, that are:-
1. Where there are reasonable grounds for believing that the release is likely to bring the child into association with any known criminal
2. The release is likely to expose the child to moral, physical or psychological danger
3. The release of the child would defeat the ends of justice.
9. The concurrent judgments of the two courts below, particularly, the Appellate Court, does show that on appraisal of the Social Investigation Report, the court has gathered an impression that there is lack of discipline and control of the parents over the revisionist and he committed the offence at an age when he was well aware of the consequences of it. The Appellate Court has inferred from remarks in the Social Investigation Report that the parents of the revisionist would have little control over him, in case he were released on bail which is bound to expose him to moral, physical and psychological danger, and that, in turn, would defeat the ends of justice. The Appellate Court has held that the offence charged against the revisionist is rape of a minor girl and which is a heinous offence. It shows his criminal proclivities and psychology. The learned Sessions Judge has also remarked that on the one hand the parents have no command or control over the revisionist and on the other, the record does not indicate that there is any other male relative to keep control over the revisionist for the betterment of his moral and psychological outlook. On the aforesaid findings the Appellate Court has found the revisionist's case well placed in the teeth of all the three exceptions embodied in the proviso to Section 12(1) of the Act.
10. This Court has perused the Social Investigation Report that is on record as Annexure no.9 to the affidavit. While the report projects the family of the revisionist to be an average family hailing from a rural area who are socially assimilated in society with an economic condition that is average, it does show that the revisionist's family have lax control over him to an extent where the revisionist could indulge in a crime, the modus of which is very determined, calculated, professional and fearless. The fact that the juvenile/ child in conflict with law committed the crime in association with two adults may not place his case in the category where in the event of release, he may come in association with a known criminal, but it does show that he has the association of adults back in whose company or the likes of them, the juvenile is likely to be exposed to moral and psychological danger, if not, physical. Also, the manner and mode of perpetration of the crime show it to be an offence, the nature of which is such that release on bail would defeat the ends of justice.
11. Generally speaking bail is the rule in case of a juvenile even after enforcement of the Act and burden lies on the prosecution to show that on the parameters specified in the proviso to Section 12(1) of the Act bail should be denied to a juvenile. In this connection law laid down by the Hon'ble Supreme Court under the Juvenile Justice (Care and Protection of Children) Act, 2000 in Jitendra vs. State of U.P., 2013 (11) SCC 193, where the provisions regarding grant of bail to a juvenile were pari materia to the provisions of Section 12(1) of the Act, it was held thus:
"39. The provision dealing with bail (Section 12 of the Act) places the burden for denying bail on the prosecution. Ordinarily, a juvenile in conflict with law shall be released on bail, but he may not be so released if the reappear 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."
12. In the context of henious offences like rape, murder, gang rape and the like, it was held in Om Prakash vs. State of Rajasthan and another, (2012) 5 SCC 201: 2012(2) ACR1825 (SC) by the Hon'ble Supreme Court that in such matters, the nature and gravity of the offence would be relevant. The minor cannot get away by shielding himself behind the veil of minority. In Om Prakash (supra), it was held:-
"3. Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of children/juvenile by the juvenile court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a juvenile court or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held.
23. ...... Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him."
13. In Mangesh Rajbhar vs. State of U.P. & another, 2018(6) ADJ 60, this Court had occasion to consider this issue in wholesome detail where it was held:-
“27. It seems thus that the suggestion of the learned counsel for the revisionist that bail to a juvenile or more properly called a child in conflict with law can be denied under the last ground of the proviso to Section 12 ejusdem generis with the first two and not with reference to the gravity of the offence, does not appear to be tenable. The gravity of the offence is certainly relevant though not decisive. It is this relevance amongst other factors where gravity of the offence committed works and serves as a guide to grant or refuse bail in conjunction with other relevant factors to refuse bail on the last ground mentioned in the proviso to Section 12 (1) of the Act, that is to say, on ground that release would "defeat the ends of justice".
28. Under the Act, as it now stands there is further guidance much more than what was available under the Act, 2000 carried in the provisions of Section 15 and 18 above extracted and the definition of certain terms used in those sections. A reading of Section 18 of the Act shows that the case of a child below the age of 16 years, who has committed a heinous crime as defined in the Act is made a class apart from cases of petty offence or the serious offence committed by a child in conflict with the law/juvenile of any age, and, it is further provided that various orders that may be made by the Board as spelt out under clause (g) of Section 15 depending on nature of the offences, specifically the need for supervision or intervention based on circumstances as brought out in the social investigation report and past conduct of the child. Though orders under Section 18 are concerned with final orders to be made while dealing with the case of a juvenile, the same certainly can serve as a guide to the exercise of power to grant bail to a juvenile under Section 12(1) of the Act which is to be exercised by the Board in the first instance.
29. Read in the context of the fine classification of juveniles based on age vis-a-vis the nature of the offence committed by them and reference to a specifically needed supervision or intervention, the circumstances brought out in the social investigation report and past conduct of the child which the Board may take into consideration, while passing final orders under Section 18 of the Act it is, in the opinion of this court, a good guide for the Board while exercising powers to grant bail to go by the same principles though embodied in Section 18 of the Act, when dealing with a case under the last part of the proviso to Section 12 (1) that authorizes the Board to deny bail on ground that release of the juvenile would "defeat the ends of justice."
30. Thus, it is no ultimate rule that a juvenile below the age of 16 years has to be granted bail and can be denied the privilege only on the first two of the grounds mentioned in the proviso, that is to say, likelihood of the juvenile on release being likely to be brought in association with any known criminal or in consequence of being released exposure of the juvenile to moral, physical or psychological danger. It can be equally refused on the ground that releasing a juvenile, that includes a juvenile below 16 years would "defeat the ends of justice." In the opinion of this Court the words "defeat the ends of justice" employed in the proviso to Section 12 of the Act postulate as one of the relevant consideration, the nature and gravity of the offence though not the only consideration in applying the aforesaid part of the disentitling legislative edict. Other factors such as the specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child would also be relevant that are spoken of under Section 18 of the Act.
31. In this context Section 12 and 18 and also Section15 (Section 15 not relevant in the case of a child below 16 years) and other relevant provisions all of which find place in Chapter IV of the Act are part of an integrated scheme. The power to grant bail to a juvenile under Section 12(1) cannot be exercised divorced from the other provisions or as the learned counsel for the revisionist argues on the other specific disentitling provisions in the grounds mentioned in the proviso to Section 12(1) of the Act. The submission made based on the rule of ejusdem generis urged by the learned counsel for the revisionist is misplaced, in the opinion of this Court.”
14. In the context of the above position of law and whatever has been said about the nature of the crime committed by the juvenile hereinbefore, the inputs in the Social Investigation Report from the District Probation Officer does show in the considered opinion of this Court that the revisionist is a juvenile, who has to be kept away from his family for sometime in order to prevent his exposure, as said earlier, to moral and psychological danger, if not physical. Likewise, the entire facts and circumstances of the crime and the juvenile taken together also leads this Court to the conclusion that release of the revisionist would defeat the ends of justice.
15. This Court is, therefore, in agreement with the two courts below that it is not a fit case where the revisionist may be relieved from institutional incarceration and sent back to his family. His bail application has been rightly rejected by the courts below.
16. In the result this revision fails and is dismissed. Order Date :- 30.07.2018 Anoop