Perusal of record would reveal that notice was sent to opposite party no.2. As per the office report, the same has been served, however, none is present on behalf of opposite party no.2.
Heard Shri Dharmendra Kumar Trivedi, learned counsel for revisionist, Shri Rajesh Kumar-I, learned A.G.A. for the State and perused the record.
The instant revision has been preferred by the juvenile Lavkush Pasi through his father Duryodhan Pasi with a prayer to set aside the judgment and order dated 01.07.2020 passed by the 1st Additional Sessions Judge, Rabereli in Criminal Appeal No.07/2020 (Lavkush Pasi v. State of U.P.) as well as the order dated 28.01.2020, passed by the Juvenile Justice Board, Raebarli with regard to Case Crime No.199/2019, under Section 147, 323, 354-B, 376-D, 504, 506 I.P.C. Police Station Mohanganj, District Amethi whereby the prayer of bail of the juvenile has been rejected by both the courts below.
The case of the prosecution as is evident from the F.I.R. are to the tune that the accused persons have molested the prosecutrix as well as outrage her modesty, however, in her statement recorded under Section 164 Cr.P.C. as well as in her additional statement recorded under Section 161 Cr.P.C. the prosecutrix imputed the allegation of rape to the applicant and other co-accused persons. The prosecutrix is stated to be the age of 19 years and a married lady while the juvenile has been declared of the age of about 17 years by the Juvenile Justice Board. The prosecutrix was also medically examined and three minor injuries of simple nature have been found on her person.
Learned counsel for the revisionist while referring to the above factual position submits that the revisionist has been falsely implicated in this case only on the basis of a local village politics and he has not committed any offence as claimed by the prosecution. It is further submitted that allegation of molestation as well as of committing rape on the prosecutrix is patently false and could not be believed on the score that the offence is alleged to have been committed on 02.05.2019 at 09:00pm, but the F.I.R. of the same has been lodged by the prosecutrix herself on 04.05.2019. In her statement recorded soon after lodging of the F.I.R., no allegation of rape has been levelled by the prosecutrix, however, it was in her statement recorded under Section 164 Cr.P.C. for the very first time the allegation of rape was alleged. It is also submitted that the statement under Section 164 Cr.P.C. of the prosecutrix has been recorded after one month of the incident and therefore, the same could not be believed as the same has been given under the pressure of her family. Moreover the statement of an independent witness namely Anees has also not been recorded by the investigating officer, who allegedly at the time of occurrence was accompanying the prosecutrix. It is also submitted that identically placed co-accused persons namely Raj Karan, Lallan, Rakesh Kumar and Rahul have been granted bail by co-ordinate Benches of this Court vide orders dated 09.11.2020, 11.01.2021 and 22.01.2021 passed in Criminal Appeal No.2055 of 2019, Bail No.5290 of 2020 and Bail No.12483 of 2019 and the applicant, who is juvenile, is also entitled to be released on bail on the basis of parity.
Learned Additional Government Advocate, on the other hand, submits that though the revisionist is juvenile but has committed heinous offence and therefore, he is not entitled to be released on bail. Moreover the parity of other co-accused persons could not be claimed by the juvenile.
Having heard learned counsel for the parties and perused the record, it is evident that the revisionist has been declared juvenile by the Juvenile Justice Board and nothing has been placed on record, which may suggest that the said order has been challenged at any higher forum, therefore as of now the revisionist is juvenile and therefore entitled to the beneficial provisions of the Juvenile Justice Act, 2015. It is also worth mentioned that the law with regard to the bail of juvenile is well settled that the general rule for juvenile is bail and not Jail, unless the conditions mentioned in section 12(1) of the Act are attracted the bail to juvenile should ordinarily not be denied. There could not be any doubt in the proposition that unless there are some reasonable grounds or material available on record to believe that the release of the juvenile on bail, is likely to bring him/her in association with criminals or his release will result in failure of justice or other exigencies mentioned in section 12(1) of the Act, pertaining to exposure of juvenile to moral, psychological danger may be attracted, are not present, bail to juvenile should not be refused and the gravity of the offence alone is not to be considered at the time of the consideration of bail of juvenile and the paramount consideration is the welfare of juvenile.
In the considered opinion of this Court, the Juvenile Justice Act is a beneficial and social-oriented legislation and the conditions, which has been mentioned in the proviso of Section 12 of the Juvenile Justice Act which is a benevalent provision, whereby it is stipulated that only on account of establishing the conditions mentioned in the proviso the facility of bail could be denied to a juvenile and therefore, there appears no reason when the similarly placed accused persons, who are major, have been granted bail by the co-ordinate benches of this Court by a reasoned and speaking order, why the same facility should not be granted to a juvenile in absence of any material whereby three conditions mentioned in Proviso to Section 12 could be attracted.
It is also evident that the report of the District Probation Officer is available on record, which shows that the juvenile is an undisciplined person and also an illiterate one, however, he could improve, if he is involved in social and community services. Perusal of the orders of both the courts below would reveal that both the courts appears to have been guided by the alleged heinousness of the crime, while considering the bail of the juvenile, the paramount consideration is only the welfare of the juvenile himself/herself and the gravity of the offence could not be the sole criteria for not granting the facility of bail to him. There is nothing in the report of the District Probation Officer, which may suggest that the release of the juvenile on bail may otherwise expose him to any psychological, physical or moral danger or his release otherwise will result in the failure of justice or will expose him to any danger. It was the incumbent duty of both the courts below to infer from the positive evidence available on record but as to whether any conditions mentioned in the proviso of Section 12 of the Juvenile Justice Act is existing and if the same were not available the juvenile should have been released on bail.
In view of the reasons aforesaid the impugned orders rejecting bail of accused/revisionist, is not sustainable and the same are not in conformity with the beneficial provisions of the Juvenile Justice Act. The impugned orders, therefore, deserve to be set aside and the revision is worth allow and thus allowed.
The orders dated 01.07.2020 passed by the 1st Additional Sessions Judge, Rabereli in Criminal Appeal No.07/2020 as well as the order dated 28.01.2020, passed by the Juvenile Justice Board, Raebarli are set aside.
Let JuvenileLavkush Pasi, be enlarged on bail, in the above mentioned case on executing personal bond by his father- Duryodhan Pasi 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, 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 :- 30.7.2021 Anupam S/-