1. Ms. Maimoona Fatima, learned counsel for the revisionist and learned AGA are virtually connected.
2. The opposite party no.2 has been served with notice, but none has appeared on his behalf.
3. Heard.
4. This revision has been filed against the judgment and order dated 23.9.2020 passed by Additional District and Sessions Judge/ Special Judge, POCSO Act-3, Gorakhpur in Criminal Appeal No.58 of 2020, which was preferred against the order dated 26.8.2020 passed by the Juvenile Justice Board, Gorakhpur rejecting the bail application of the revisionist and the appeal filed against the same has been also dismissed by the Additional District and Sessions Judge by the impugned order.
5. The FIR was registered against the revisionist, Jai Kishan (Minor) and others in respect of incident dated 3.4.2020 for the offence under Sections 147, 323, 376, 452, 504, 506 IPC and 3/4 POCSO Act, Crime No. 94 of 2020, PS - Sahjanwa, District Gorakhpur with the allegation that on 3.4.2020 at about 01:00 AM in the midnight, the revisionist on the point of a knife committed rape on the victim, who was a minor and he was caught red handed by the family members at the time of occurrence. Police was informed. So many persons of the locality and the family members of the revisionist also reached there, committed maarpeet with the family members of the victim and threatened them with dire consequences.
6. The admitted fact is that the revisionist was declared juvenile by order dated 28.7.2020 and he was found to be aged about 16 years 3 months and 2 days as per his high school certificate. Bail application was given before the Juvenile Justice Board and the same was rejected vide impugned order against which an appeal was filed and the appeal was also rejected by the impugned order dated 23.9.2020.
7. Both the orders have been challenged in this revision on the basis that both the courts below passed the impugned orders against the law and facts on record and the impugned orders are perverse vitiated and contrary to law and fact, therefore, the impugned orders are not sustainable under law and are liable to be set aside and the revisionist is entitled to be released on bail.
8. Submission of the learned counsel for the revisionist is that the victim was examined under Section 164 CrPC by the Magistrate in which she denied the fact of rape and stated that a false FIR was registered because of old enmity by her family members. It has been also submitted that no knife was recovered which was alleged to have been used by the revisionist and by causing threat, he committed rape on the victim. It has been also submitted that the legal provision provided under Section 12 of the Juvenile Justice Act was not interpreted in the right prospective which requires justice to be done to the juvenile. It has also been submitted that there was nothing adverse against the juvenile in the report of the Probationary Officer and there was no legal ground to deny bail to the revisionist.
9. Learned AGA has opposed the bail application and has submitted that after investigation charge sheet has already been filed. It has been also submitted that both the courts below have rightly considered the bail application and come to the conclusion that the bail application has got no force and was liable to be rejected. There is no illegality nor there is any jurisdictional error in the impugned orders.
10. The noticeable fact in this case is that both revisionist and victim were of comparable age and there was not much difference in their age. Another aspect is that no injury was found in the medical of the victim. It was also required to be considered that when the victim was examined under Section 164 CrPC, she denied the fact of rape by the revisionist. It appears that this fact was not given any weight by both the courts below, which is an apparent illegality in the impugned orders.
11. It is pertinent to mention that provision has been made under Section 12 of the Juvenile Justice Act that when any juvenile who is accused of a bailable or a non-bailable offence, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail except when
1. there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or
2. that it will expose him to moral, physical or psychological danger, or
3. that his release would defeat the ends of justice.
12. It has been held by the Supreme court in Dr. Subramaniam Swamy vs Raju, 2014 (86) ACC 637 that a juvenile has to be released on bail unless the court has a reasonable ground to believe that his release will bring him into association of some known criminal, or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice.
13. Section 15 of the Amending Act only provides for transfer of a juvenile to the Children Court for trial as an adult. Where the child has attained the age of 16 years and has been alleged to have committed heinous offence, the JJ Board is required to conduct a preliminary inquiry with regard to his mental and physical capacity to commit offence, ability to understand the consequence of the offence and the circumstances in which the offence was committed considering his physical, psychological and mental status in commission of crime. Section 18(3) of the Act provides that after making the assessment under section 15, the JJ Board comes to a conclusion that there is a need for trial of the child as an adult, the Board may pass an order for the transfer of the trial of the case to the Children Court.
14. It is pertinent to mention here that Section 12 of the Juvenile Justice (Care and Protection of Children) Act has not been amended so far as the parameters and yardstick for granting bail to the juvenile is concerned. Therefore, while rejecting the bail application of such juvenile, it cannot be the criteria that the alleged offence is of serious and heinous nature. The order must show that the grant of bail to the juvenile-accused is against his interest as there is possibility of his being associated with known criminals, or there is some short of moral, physical or psychological danger to him or there is likelihood of end of justice being defeated. All these conditions have been incorporated in law in order to ensure justice to the juvenile.
15. Thus it is clear that even though Juvenile Justice Act has been amended and the juvenile above 16 years in age, can be tried as an adult by the Children Court, there is no amendment in respect of considerations which is taken into account for the bail of juvenile. Section 12 of the Juvenile Justice Act makes the bail of the juvenile mandatory and the grounds on the basis of which his bail application can be rejected is also to serve the best interest of the juvenile himself. Therefore, the bail of juvenile can only be rejected if the court comes to a conclusion that the release on bail will adversely affect the interest of juvenile.
16. In this case, there appears to be nothing on record showing that there is moral, physical or psychological danger to the juvenile, if he is released, nor there was any possibility that he will come in the company of known criminal nor there is any reason to conclude that his release on bail will defeat the ends of justice. In a case like this where the victim has herself denied the allegation of rape in her statement given to the magistrate under section 164 of the Criminal Procedure Code, the rejection of bail by the courts below is highly inappropriate and the rejection order suffers from material irregularity and illegality. Therefore, the court is of the firm view that both the courts below have not exercised their jurisdiction vested in them keeping in view the object of the Act. There is one more consideration necessitating this conclusion. At present, there is wide spread of pendemic Covid-19 and it requires a liberal approach to be adopted while considering the bail plea of a juvenile.
17. In view of above, I find that the impugned orders are not sustainable and they are liable to be set aside.
18. The criminal revision is therefore allowed. The impugned orders rejecting the bail application are set aside.
19. The juvenile, namely Jai Kishan (Minor) be released on bail and he be given in the custody of the mother guardian namely Smt. Yamuna Devi on her filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian mother Smt. Yamuna Devi shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. She will also give an undertaking that on being so released on bail, the juvenile will not however indulge in commission of any crime and she will ensure his presence during trial before the court whenever so required by court.
20. Office is directed to transmit the certified copy of this order to the court concerned for information and its necessary compliance. A computerized copy of the order may also be obtained and produced before the court concerned for compliance.
Order Date :- 4.5.2021 Anil K. Sharma