As per the report of the Chief Judicial Magistrate, Sitapur, the notice has been served on opposite party no.2, however none is present on his behalf.
Heard Sri Narendra Gupta, learned counsel for revisionist as well as Sri Rajesh Kumar learned A.G.A. for State and perused the record.
The instant revision petition has been filed on behalf of the Juvenile Accused Shailendra by his mother Ramlali, challenging the order dated 4.2.2020, passed in Criminal Appeal No.3 of 2020, by the Special Judge (POCSO Act), Sitapur and the order dated 23.12.2019, passed by the Juvenile Justice Board, Sitapur, in Criminal Case No.115 of 2019, State v. Anand and others, pertaining to the Case Crime No.23 of 2019, under Sections 363,366,376-D, 506 IPC and under Section 3/4 of POCSO Act P.S.Sidhauli, District Sitapur, whereby the prayer of bail of the revisionist has been rejected by the courts below.
Learned counsel for revisionist submits that the juvenile has been declared of the age of 15 years, 8 months and 11 days at the date of the alleged occurrence and the order whereby he has been declared so has not been challenged at any higher forum and, therefore, the same has become final. It is further submitted that the revisionist has been falsely implicated in this case only on the basis of local/political enmity and as per the case of the prosecution the FIR was lodged stating therein that the prosecutrix had gone the college and had not returned there from. However in the statement of the prosecutrix recorded under Section 164 Cr.P.C. she stated to have gone to Lucknow with her friend Anju. In her statement recorded under Section 164 Cr.P.C. the victim had imputed allegations of rape to all the accused persons including the revisionist.
Highlighting the above factual matrix it is vehemently submitted by learned counsel for revisionist that similarly placed co-accused persons, namely, Surendra Kumar Yadav, Megha @ Suraj & Manish Kumar have been granted bail by orders dated 18.9.2019 and 22.11.2019, passed in Criminal Appeal No.1269 of 2019 and Bail No.10928 of 2019, respectively.
It is further submitted that since the similarly placed co-accused persons have been granted bail by coordinate Benches of this Court, the benefit of the same could not be denied to the juvenile in absence of any material which may suggest that after releasing on bail the revisionist may come into association of bad character or his release may otherwise expose him to moral, physical and psychologigal danger or that his release would defeat the ends of justice.
The applicant is in jail in this case since 26.09.2019 and he is not having any criminal history.
Learned A.G.A. on the other hand submits that the revisionist is involved in a heinous offence and having regard to the manner in which the offence has been committed, he is not entitled to be released on bail and there is no illegality in the order of both the courts below.
Before proceeding further it is fruitful to reproduce Section 12 (1) of The Juvenile Justice (Care and Protection of Children) Act, 2015, which speaks about the conditions pertaining to the release of juvenile on bail, as under:-
Sec.12(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 thepolice or appears or 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 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 record the reasons for denying the bail and circumstances that led to such a decision.
(2)...
(3)...
(4)...
Thus, section 12 of the Act lays down only three contingencies in which the bail can be refused to juvenile. These are:
(1) if the release is likely to bring him into association with any known criminal, or (2) expose him to moral, physical or psychological danger, or (3) that his release would defeat the ends of justice.
In Bhola @ Satender v/s State Of U.P. 2015 (2) JIC 38(Allahabad), MANU/UP/1125/2014 this Court has held as under :-
"12. The Juvenile Justice Act is a beneficial and social-oriented legislation, which needs to be given full effect by all concerned whenever the case of a juvenile comes before them. In absence of any material or evidence or reasonable ground to believe that the delinquent juvenile, if released on bail is likely to come into association with any known criminal or expose him to moral, physical or psychological danger, it cannot be said that his release would defeat the ends of justice."
Similar view has been expressed by this Court in Mukesh v/s State of UP 2015 (2) JIC page 740, Ranjit Yadav v/s State Of UP, 2015 (2) JIC page 738, Ajay @ Abhinay Kumar v/s State of UP 2015 (2) JIC page 223 (Allahabad).
Hon'ble Supreme Court in the case of Om Prakash Vs. State of Rajasthan and Ors reported in (2012) 5 SCC 201 however has brought in due concern in matter relating to juvenile where the alleged offences committed by the juvenile are heinous like rape, murder, gang rape etc and has indicated that in such matters the nature and gravity of the offences would be relevant and the minor (juvenile) can not getaway by shielding himself behind the veil of minority. It was held by their Lordship that Juvenile Justice Act was enacted with a laudable object of providing a separate forum for holding trial of children by the juvenile court as it was felt that children became delinquent by force of circumstances and not by choice. Hence, they need to be treated with care and sensitivity, while dealing and trying cases of criminal nature. It was further highlighted by their Lordship that if the conduct of an accused or the method and manner of the commission of the offence indicates evil and well planned design of the accused committing the offence, which indicates more towards the mature skill of an accused than that of a innocent child, then he cannot be allowed to take shelter of the principle of beneficial legislation like the Juvenile Justice Act subverting the course of justice, which is meant for minors or innocent law breakers and not for on accused of mature mind who uses the plea of minority as a ploy to shield and protect himself from the sentence of the offence committed by him.
The above case laws thus suggest that no strait jacket formula may be adopted for grant or refusal of facility of bail to juvenile in conflict with law and it will depend on the facts and circumstances of each case as well as the manner and method whereby the alleged offence has been committed by the juvenile to gauge as to whether the act of the juvenile attracting penal consequences, has been done with sufficient maturity, skill and evil design, which can be attributed only to a major person or whether the penal act of the juvenile is an act of an innocent law breaker. Needless to say that every case will have to be decided on its merits, demerits and evidence which is being placed against the juvenile as well as the previous criminal history of the juvenile. The gravity of the offence certainly cannot be the sole guiding factor, but the manner and method of the commission of the offence could certainly be taken into consideration while deciding the plea of bail of a juvenile.
Perusal of record would suggest that Juvenile Anand is declared of the age of 15 years 11 months. Similarly placed co-accused persons have been granted bail. There is report of District Probation Officer available on record at page-14 of the counter affidavit wherein the District Probation Officer has stated that the socio economic condition of the family of juvenile and behaviour of the juvenile has been found normal, his father is a patient of paralysis and it has been specifically stated in the report that after due counseling the juvenile could be made self dependent.
Having perused the report of the District Probation Officer, there is nothing in that report, which may suggest that applicant after being released on bail may be exposed to any danger as highlighted in the proviso appended with Section 12 of the Juvenile Justice Act. Both the courts below appears to have guided by the alleged heinousness of the crime while there is no positive evidence available on record which may attract the conditions mentioned under Section 12 of the Juvenile Justice Act.
This Court is of the considered view that when similarly placed co-accused have been granted bail, the same facility could not be denied to the applicant.
For the reasons mentioned herein above, I find force in the revision and the same is allowed. The orders judgment and order dated 4.2.2020, passed by the Special Judge, (POCSO Act), Sitapur in Appeal No.3 of 2020 as well as the order dated 23.12.2019, passed by the Juvenile Justice Board, Sitapur with regard to Criminal Case No.115 of 2019, State v. Anand and others, Case Crime No.23 of 2019, under Sections 363,366, 376D,506 I.P.C. and Section 3/4 POCSO Act, P.S.Sidhauli, District Sitapur, whereby the bail applications of juvenile accused Anand was rejected, are set aside.
Let Juvenile accused Shailendra, be enlarged on bail, in the above mentioned case on executed a personal bond by his mother- Ram Lali with two reliable sureties each in the like amount to the satisfaction of the Court/Board concerned and on submission of undertaking on affidavit by his father that he will take due care of the juvenile, juvenile will not attempt to contact the prosecutrix either directly or indirectly, will not allow him to indulge in any unlawful or criminal activity or join the company of unlawful elements, will keep him under strict control, shall not attempt or tamper with the evidence or threaten the witnesses; shall not seek any adjournment on the date fixed for evidence, shall remain present before the trial Court on each date fixed, either personally or through his counsel failing which the facility of bail granted to Juvenile may be cancelled.
Order Date :- 28.7.2021 Irfan