1. Heard Sri N.I. Jafri, learned Senior Advocate assisted by Sri Sadaful Islam Jafri, learned counsel for revisionist and learned AGA for the State virtually.
2. Notice has been served to the informant and despite services, none appeared on his behalf nor any counter affidavit has been filed.
3. This criminal revision has been preferred against the impugned judgment and order dated 21.09.2020, passed by Additional Special Judge (POCSO) Court No. 1, Allahabad, in Criminal Misc. Bail Application No. 1571 of 2020, arising out of Case Crime No. 1087 of 2019, under Sections 363, 366, 376D, 120B IPC and Section 5/6 POCSO Act, Police Station Soraon, District Prayagraj, whereby the bail application of the juvenile Mohammad Najmuddin has been rejected.
4. The submission of the learned Senior Counsel is that the revisionist is a juvenile as determined by the Juvenile Justice Board and his case has been referred for trial as an adult in the Children Court.
5. As per FIR version, the victim is aged about 13 years. On 8.12.2019, in the night, she was taken by her Mausi, Usha Devi with two persons. Subsequently, when she was recovered, she stated that she went with her Mausi, accompanied by her brother-in-law co-accused Santosh and the present revisionist, who took her to Bhiwani, where rape was committed on her by both revisionist and Santosh.
6. The appellant has challenged the impugned order submitting that he is juvenile. He is in juvenile home since 20.12.2019 and his age has been determined below 18 years by Juvenile Justice Board, Prayagraj, vide its order dated 26.06.2020. From perusal of the said order, it is clear that the Board while referring the case of the present revisionist to the Children Court has referred that on the date of incident, the age of the juvenile was determined to be 17 years, 11 months and 7 days. It has further been submitted that the revisionist has been falsely implicated in the present case. The age of the victim is about 20 years. When the revisionist has applied for bail before the Children Court, his bail application was rejected. Submission of the learned counsel is that the Children Court rejected the bail application illegally without taking into consideration Section 12 of the Juvenile Justice (Care and Protection of Children) Act and also the report of the Probationary Officer. The medical report of the victim does not suggest recent sexual intercourse with her nor any injury has been found on her private part. Further submission is that there is discrepancy in the statement of the victim given under Section 161 CrPC to the Investigating Officer and under Section 164 CrPC to the Magistrate. The ossification report of the victim shows that she was above 18 years in age. The bail application of the revisionist has been rejected only on the basis of the gravity of the offence without giving due consideration to the circumstances of the case and the age of the juvenile. Submission of the learned counsel is that the rejection of the bail application is illegal and the learned Court has not been able to exercise the jurisdiction vested in it. The order suffers from jurisdictional error, material irregularity and illegality, and therefore, the impugned order is liable to be set aside and the revisionist is entitled to be released on bail.
7. Learned AGA has opposed and has submitted that at the time of incident as per educational record, the revisionist was just below 18 years in age. The Juvenile Justice Board found him to be of matured understanding, and therefore, his case was referred for trial as an adult before the Children Court. It has been also submitted that there is no illegality or material irregularity nor there is any jurisdictional error in the impugned order, and therefore, the revision is liable to be rejected.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. From the perusal of the papers annexed and the facts of the case, it is clear that there is discrepancy in the statement of the victim as she stated that only revisionist committed rape on her in her statement under Section 161 CrPC and when she was examined under Section 164 CrPC by Magistrate, she stated that both revisionist and co-accused Santosh committed rape on her. It is noticeable that when the offence has been alleged to have been committed, the victim was in the company of her own Mausi and the other co-accused Santosh who is the brother-in-law of her Mausi. Thus, the victim went with her Mausi and the offence was committed when she was accompanied by her Mausi. So far as the age of the victim and the revisionist is concerned, there is not much difference in their age and the the medical report says that the victim was 18 to 20 years in age. There is nothing adverse in the report of the Probationary Officer nor there is any possibility that on being released the revisionist may join the company of known criminals. So far as the expression "ends of justice" occurring in Section 12 of the Juvenile Justice Act is concerned, the same has to be considered in relation to the justice to such juvenile. In view of object and purpose of the Juvenile Justice Act, the revisionist is in jail from the last about 17 months and this fact should also be considered while considering the bail application of such juvenile. Victim going with her own Mausi and other male relative and commission of the offence in their company and the age of juvenile and victim being comparable also dilutes the culpability.
15. Bail to the juvenile is mandatory and rejection of bail application should also be to serve the interest of juvenile to avoid physical or psychological danger to him, to ensure that he may not come in the close company of known criminal or to ensure that the ends of justice may not be defeated. Considerations such as gravity of offence and involved culpability and the rejection of bail by the courts below on that ground is highly inappropriate and the rejection order suffers from material irregularity and illegality. Therefore, the court is of the firm view that the court below has not exercised jurisdiction vested in it 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.
16. In view of above, I find that the impugned orders are not sustainable and they are liable to be set aside.
17. The criminal revision is therefore allowed. The impugned orders rejecting the bail application are set aside.
18. The juvenile, namely Mohammad Najmuddin (Minor) be released on bail and he be given in the custody of the mother guardian namely Smt. Majda Begum 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. Majda Begum 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.
19. 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