Court No. - 38
Case :- CRIMINAL REVISION No. - 4358 of 2018 Revisionist :- Rohit (Minor) Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Sushil Kumar Dubey Counsel for Opposite Party :- G.A.
Hon'ble Virendra Kumar Srivastava,J.
This revision has been filed against the judgement and order dated 15.11.2018 passed by learned Ist Additional District and Session Judge, Jalaun at Orai in Crl. Appeal No. 43 of 2018 ( Rohit Vs. State of U.P.) and orders dated 9.10.2018 and 16.10.2018 passed by Juvenile Justice Board, Jalaun at Orai, under sections 376, 504 I.P.C and section 3/4 POCSO Act, arising out of case crime No.36 of 2018, police station Kailiya, District Jalaun at Orai.
The brief facts of the case are that on 19.5.2018 the victim, daughter of informant, opposite party No.2 had gone for natural call at 7.30 P.M. from her house to the filed of one Malkhan. The revisionist Rohit (Minor) caught her and molested. Upon alarm raised by her, when her father reached there, he fled away. Upon information given by the opposite party No.2, an information under sections 354(K) and 504 I.P.C and 7/8 POSCO Act was registered at P.S. Kailiya, District Jalaun at Orai on the same day. After investigation charge sheet under sections 376, 504 I.P.C and 3/4 POSCO was submitted by the investigating officer.
Heard Sri Sushil Kumar Dubey, learned counsel for the revisionist and learned A.G.A for the State.The opposite party No.2 is not present despite of several notice.
Learned counsel for the revisionist has submitted that the revisionist is innocent and he is pursuing his study. He has submitted that the applicant is juvenile. The report submitted by the District Probation Officer, Jalaun at Orai does not disclose that the revisionist is habitual offender or in company of bad element of society. If the revisionist is detained in jail then his carrier/ future would be ruined. It has lastly been submitted that if he is released on bail, he will never misuse his liberty of bail and will co-operate in the trial. He is languishing in jail since 26.5.2018.
Learned A.G.A has vehemently opposed the submission made by the learned counsel for the revisionist and submitted that the revisionist is involved in the heinous offence under sections 376 and 504 I.P.C and 7/8 POSCO Act for committing rape with the victim. The order passed by the learned appellate court as well as Juvenile Justice Board requires no interference.
The Juvenile Justice (Care and Protection) Act, 2015 (Act) has been enacted with object to reform and protect the future career of children below the age of 18 years. The main purpose of this Act is to keep the juvenile out of company and society of habitual criminals and to keep them in place of safety. The parameter and guidelines for assessment of plea of bail of a juvenile has been provided in Section 12 of the Act which is as under:-
"When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is 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 1[or placed under the supervision of a Probation Officer or under the care of any fit institution of fit person] but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."
Thus it is clear that the provision for release to a juvenile has overriding effect to any provision contained in Code of Criminal Procedure, 1973 or in any other law for the time being in force. According to this provision, a duty has been cost to grant bail to a juvenile unless there is a reasonable ground for plea that the release is likely to bring the juvenile into association with any known criminal or exposed the said juvenile to moral, physical or psycological danger or the person release would defeat the end of justice.
In this case only the revisionist (Juvenile) has been named in the first information report lodged only under sections 354 (K), 504 I.P.C and 7/8 POSCO Act. No allegation regarding committing of rape was mentioned in the first information report. Admittedly the revisionist was juvenile at the time of occurrence. As per report of C.M.O, Jalaun at Orai, the victim was about 17 years at the time of occurrence. The appellate court as well as the Juvenile Justice Board has rejected the plea for bail of juvenile only on the ground of gravity of the offence.
From perusal of impugned judgement and order passed by the appellate Court as well as Juvenile Justice Board, it transpires that both the Courts below have passed the impugned judgement and order in cursory manner without placing due reliance on the report submitted by the District Probation Officer as well as facts and circumstances of this case which is not in accordance with the mandate of Section 12 of the Act. The impugned judgement and order is liable to be set aside.
Consequently, the revision succeeds and is allowed. Both the judgement and order dated 15.11.2018 passed by learned Ist Additional District and Session Judge, Jalaun at Orai and orders dated 9.10.2018 and 16.10.2018 passed by Juvenile Justice Board, Jalaun at Orai are hereby set aside.
Let the revisionist Rohit (Minor) be released on bail in the aforesaid criminal case and be given into custody of his father/natural guardian on furnishing a personal bond with two solvent sureties of his relatives each in like amount to the satisfaction of Juvenile Justice Board, Jalaun at Orai with the following conditions:-
(i) That father/ natural guardian of the revisionist will furnish an undertaking that upon release on bail, the juvenile will not be permitted to go into contact or association with any known or unknown criminal or exposed to any moral or physical danger and will not indulge in any criminal activity and he will make best effort for improvement of justice.
(ii) That the revisionist and his father/ natural guardian shall remain present before the trial court on each date fixed, either personally or through his counsel.
Order Date :- 30.4.2019 G.S