1. Heard Sri Vijay Pathak, learned counsel for the revisionist and Ms. Parul Kant, learned State counsel for Respondent No. 1. None for respondent No. 2 though served.
2. This revision has been filed assailing the order dated 6.10.2017 passed by the Special Judge, POCSO Act, Court No.6, Barabanki in Criminal Appeal No.40 of 2017 dismissing the appeal preferred by the revisionist assailing the order dated 22.7.2017 passed by Juvenile Justice Board, Barabanki in Criminal Case No.29 of 2016.
3. Facts of the case in brief are that on 23.3.2017, FIR was lodged by Nasruddin, father of the prosecutrix, alleging in it that on 16.3.2017 when the prosecutrix, aged about 14 years, had gone to attend the nature's call, accused revisionist reached there and after removing her cloths committed forcible sexual intercourse. He states that upon hearing the cries of the prosecutrix, one Iliyas reached there and then the revisionist fled away from the spot. Based on this FIR, offence under Sections, 376, 506 of IPC and 3/4 of Protection of Children from Sexual Offence (POCSO) Act was registered against the revisionist. Undisputedly, the revisionist is minor below 18 years of age. The revisionist filed an application before the Juvenile Justice Board, Barabanki under Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ''the Act of 2015') for grant of bail, which was rejected on the ground that if the revisionist is released on bail, it would likely to bring him into association with known criminals and he would be exposed to moral, physical or psychological danger and that family of the victim would loose faith in the judicial system and the purpose of justice would be defeated.
4. The order passed by the Board was assailed by the revisionist by way of filing appeal before the Sessions Judge, Barabanki, which has been dismissed by the order impugned dated 6.10.2017 affirming the reasons given by the Board.
Learned appellate court has further held that the judgement of the trial court has been passed after considering all the aspects of the case. The same is based on sound reasons and does not call for any interference.
5. Learned counsel for the revisionist submits that even on merit, the revisionist has a very good case and in 164 Cr.P.C. statement, it has been stated by the prosecutrix that earlier father of the revisionist has lodged a report against her father under Section 376 of IPC as a result of which her father was annoyed. He submits that both the courts below have completely overlooked the provisions of Section 12 of the Act of 2015 and more particularly the report submitted by the Probation Officer, Annexure-SA-1. He submits that in its report nowhere it has been stated by the Probation Officer that if the revisionist is released on bail, he would be exposed to moral, physical or psychological danger and that if he comes back to the same atmosphere ends of justice would be defeated. He submits that if the entire report is seen, the same appears to be in favour of the revisionist and it says that the revisionist was a student of inter college; his conduct in the village is good and he has no criminal record. It further says that there exists old enmity between two families and as informed by the neighbours, the conduct of the revisionist is normal and in the last paragraph, it only says that social and moral degradation can not be ruled out. He submits that there is absolutely nothing adverse in the report of the Probation Officer that if the revisionist is released on bail, he would be exposed to moral, physical or psychological danger and that the words "he would be exposed to moral, physical or psychological danger" have been mentioned in the impugned order just because they are described in the relevant provisions itself.
6. Learned counsel for the respondent/State, however, submits that the application and the appeal of the revisionist have rightly been rejected by the Courts below.
7. Before drawing any conclusion regarding the correctness or otherwise of the orders impugned, glance of the relevant provisions of Section 12 of the Act of 2015 becomes necessary, which is reproduced as hereunder for ready reference:
"Section 12. Bail to a person who is apparently a child alleged to be in conflict with law . - (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 the police 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) When such person having been apprehended is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.
(4) When a child in conflict with law is unable to fulfill the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."
8. In the present case, in compliance of the provisions of the Act of 2015 the report of the Probation Officer was called by the Juvenile Justice Board and following are the main points in the said report:
Ldwy ¼Ldwy ds v/;kidksa] lgikfB;ksa ds izfr fd'[email protected]'kksjh dk vkSj mlds izfr budk n`f"Vdks.k & fd'kksj egQwt vkye orZeku le; esa ;wfu;u b.Vj dkyst jkeuxj ckjkcadh dk Nk= crk;k x;kA dkedkt dk fjdkMZ ¼fd;s x;s dk;Z NksM+us ds dkj.k O;olk; lEcU/kh vfHk:fp] dk;Z vFkok fu;ksDrkvksa ds izfr n`f"Vdks.k½ ----------
vkl&iM+ksl ,oa iM+ksfl;ksa ls izkIr fjiksVZ & fd'kksj egQwt vkye dk pky pyu xkao esa lgh jgk gS] mldk dksbZ vkijkf/kd fjdkMZ ugha jgk gSA ?kj esa vuq'kklu ds izfr ekrk&firk dk n`f"Vdks.k vkSj ckyd dh izfrfdz;k & lkekU; izfrfdz;k vU; dksbZ vfHk;qfDr --- tkap dk ifj.kke HkkokukRed dkjd & dksbZ ugha 'kkjhfjd n'kk & Bhd ckSf)d {kerk & vkSlr ckSf)d Lrj lkekftd ,oa vkfFkZd dkjd & ikfjokfjd ,oa pqukoh jaft'k gksuk crk;k /kkfeZd dkjd & dksbZ ugha leL;kvksa ds lEcU/k esa lq>k, x, lq>[email protected] & --------
vipkfjrk ds dkj.kksa lfgr ekeys dk fo'ys"k.k& xzkeokfl;ksa ds vuqlkj ;g crk;k x;k fd nksuksa i{kksa ds e/; ikfjokfjd ,oa pqukoh jaft'k dkQh le; ls py jgh gSA ftu fo'ks"kKksa ls ijke'kZ fd;k x;k] muds fopkj & iM+ksfl;ksa ds vuqlkj fd'kksj egQwt vkye dk pky&pkyu lkekU; crk;k x;kA mldk dksbZ vkijkf/kd fjdkMZ ugha jgk gSA mipkj ,oa bldh ;kstuk ds lEcU/k esa ifjoh{kk vf/kdkjh dh flQkfj'k & bl izdj.k esa fd'kksj egQwt vkye ds lkekftd ,oa uSfrd iru dh lEHkkOkuk ls iw.kZr% badkj ugha fd;k tk ldrk gSA ek0 U;k;ky; ts0 ts0 ch0 ckjkcadh dh lsok esa fjiksVZ ;Fkksfpr dk;Zokgh gsrq lknj izsf"kr gSA ""
9. A bare perusal of the said report makes it clear that it is nowhere mentioned in it that if the revisionist is released on bail, he would come into association with any known criminal or it would expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. Rather the report supports the revisionist.
10. Perusal of Section 12 of the Act of 2015 makes it clear that ordinarily, the bail has to be granted to the juvenile and the same can be rejected only when it appears to the court concerned that either of three conditions laid down in this provision are in existence. The orders of the Juvenile Justice Board and the Sessions Court go to show that while passing the same both the courts below have not at all considered the report of Probation Officer in a correct manner and rejected the application of the revisionist for his release on bail in a mechanical manner simply by reproducing few words of Section 12 of the Act of 2015. Further the courts below have presumed many things of their own, which is not part of record of Probation Officer. These aforesaid two orders passed by the Courts below do not stand on the touchstone of the relevant legal provisions.
11. From the material on record it is also apparent that no proper reason whatsoever has been assigned by the Juvenile Justice Board on the basis of which, application of the revisionist could be rejected. Rather the report of the Probation Officer is in favour of the revisionist.
12. Considering the facts and circumstances of the case and the report of the Probation Officer, the present revision is allowed. Orders impugned are hereby set aside.
13. The revisionist, who has already spent more than two years in jail, is directed to be released on bail of his guardian or parent furnishing a bond in the sum of Rs. 50,000/- with one surety for the like sum to the satisfaction of the concerned Juvenile Justice Board. The revisionist is directed to appear before the said Board on all the dates as are given to him.
14. It has been informed that there is no progress in the trial and even the statement of the prosecutrix has not been recorded. If this is correct, the trial court is directed to conclude the trial expeditiously because keeping pending such trial for long period would defeat the ends of justice and various provisions of law.
15. It is made clear that this Court has not expressed any opinion on merits of the case and the trial court would be at liberty to decide the trial strictly in accordance with law on the basis of evidence so adduced by the parties.
Order Date :- 26.7.2019 RK (Pritinker Diwaker, J.)