Court No. - 71
Case :- CRIMINAL APPEAL No. - 578 of 2019 Appellant :- Lahar Gangwani Respondent :- State Of U.P. And Another Counsel for Appellant :- Anil Kumar Srivastava,Ram Bahadur Counsel for Respondent :- G.A.,Amit Kumar Singh,Bhupendra Kuamr Tripathi
Hon'ble Siddharth,J.
Short counter affidavit has been filed by counsel for the opposite party no. 2.
Heard Sri Anil Srivastava and Sri R.B. Kushwaha learned counsel for the appellant and learned A.G.A. for the state and Sri Bhupendra Kuamr Tripathi learned counsel appearing on behalf of opposite party no. 2.
This criminal appeal has been filed by the learned counsel for the appellant under Section 101 (5) of the Juvenile Justice (Care and Protection of Children), Act 2015 for setting aside the impugned order dated 27.02.2018 passed by the learned Special Judge (POCSO)/ Additional Sessions Judge, Court No. 14, Kanpur Nagar in Criminal Misc. Bail Application No. 1075 of 2017 (Lahar Gangwani vs. State of U.P.) in Case Crime No. 522 of 2017, under Sections 363, 366, 376 I.P.C. and Section 3/4 Protection of Children from Sexual Offences Act, Police Station- Barra, District- Kanpur Nagar for the custody of Lahar Gangwani.
Learned counsel for the opposite party no. 2 has raised a preliminary objection that this application under Section 101(5) of the Juvenile Justice (Care & Protection of Children) Act, 2015 is not maintainable. In the present case bail application was moved before Special Court under the POCSO Act and thereafter transferred to Juvenile Justice Bond. There was no children's court therefore the matter was transferred to the court of Special Judge under the POCSO Act and it was treated as the children's court and the bail application was heard and rejected by the aforesaid court.
It has been submitted that the proper procedure would have been that after the special court was treated as children's court a fresh bail application should have been moved as per the provision of the section 19 of J.J. Act and then the application should have been heard and decided.
Per contra, the counsel for the applicant has submitted that it would have been only a paper work and in substance the bail application would still have remained a bail application praying for enlarging the appellant on bail.
After considering the rival contentions this court is of the opinion that the bail application of the appellant was pending and it was transferred from the court of POCSO Act to the court of a Juvenile Court and since the Juvenile court was not available, it was again transferred to the Special Court under the POCSO Act and the Children's court has now rejected the same. There appears to be no illegality in the procedure since in substance the bail application was there and it remained pending and at no point of time it was adjudicated and decided on merit.
In the present bail application the applicant has submitted that the age of the appellant at the time of alleged offence was about 17 years and the victim is also stated to be of the same age. The medico-legal report on record does not supports the prosecution case at all. The appellant is admittedly a juvenile and is in jail since 17.08.2017. There is no previous criminal history of the appellant on record.
Learned A.G.A. and learned counsel for the opposite party no. 2 have opposed the prayer for bail but could not dispute the aforesaid facts as argued by learned counsel for the appellant.
Without expressing any opinion on the merits of the case and considering the facts and circumstances of the case, I am of the opinion that the appellant is entitled to be released on bail.
Let the appellant, Lahar Gangwani (Minor), be released on bail in the aforesaid case on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned.
The impugned order dated 27.02.2018 passed by the learned Special Judge (POCSO)/ Additional Sessions Judge, Court No. 14, Kanpur Nagar, in the aforesaid case is, hereby, quashed.
The appeal is allowed.
Order Date :- 27.2.2019 Rohit