1. Heard Sri Syed Raza Mehdi, learned counsel for revisionist as well as learned A.G.A. on behalf of State.
2. By means of present revision, the revisionist has assailed the order dated 31.10.2018 passed by the Additional Sessions Judge-VIII, Faizabad whereby dismissing the Criminal Appeal No. 84/2018 filed by the revisionist again order dated 03.10.2018 passed by the Principal Magistrate, Juvenile Justice Board, Faizabad rejecting the bail applciation filed by teh revisionist in CAse Crime NO. 350/2018, under Section 376, 506 of I.P.C., Police Station - Pura Kalander, District - Faizabad.
3. It has been submitted by learned counsel for revisionist that in the Statement under Section 164 Cr.P.C., the prosecutrix has stated that she knew the revisionist and they wanted to marry each other and the revisionist has also promised to marry her. Subsequently, they have voluntarily developed sexual relationship but she had submitted that on 16.07.2018, the revisionist had forcibly and without her consent committed sexual assault on the prosecutrix.
4. It has further been submitted by learned counsel for revisionist that revisionist is in jail since 23.07.2018 and thereby his period of custody till date is nearly 2 years and 6 months and the maximum period of incarceration even in case of the conviction would be 3 years. He has also submitted that no adverse report has been submitted by the Probationary Officer. According to the report of Probationary Officer, the revisionist is a student of class 10 and he does not have any criminal history. Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "the Act") provides that bail may be considered to a child. Section 18 of the Act provides that the child below the age of 16 years, if has committed a heinous offence, may be kept in custody in a Home for a period of three years. In the present case, the revisionist is in jail for nearly two years and six months.
5. Learned AGA has, however, submitted that the Juvenile Justice Board and the Appellate Authority both have not found the case of the present revisionist for granting bail. However, so far as the the provisions of Section 12 of the Act are concerned and the report of Probationary Officer is concerned, he has nothing to say.
6. Considering the aforesaid facts, age of the accused-revisionist and the period of incarceration of the accused-revisionist, I find it a fit case to grant bail.
7. Accordingly, the impugned judgment and orders dated 31.10.2018 passed by the appellate authority and the order dated 03.10.2018 passed by the Juvenile Justice Board are set aside.
8. Thus, the revision is allowed.
9. Let the accused-revisionist (Sabbar Raza), accused of the above-mentioned crime number, be released on bail on his furnishing two sureties in the like amount to the satisfaction of the court concerned subject to the following conditions, which are imposed in the interest of justice:-
(i) the accused-revisionist shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law;
(ii) the accused-revisionist shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of her absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;
(iii) in case, the accused-revisionist misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and if the revisionist fails to appear before the court on the date fixed in such proclamation, then the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code; and
(iv) the accused-revisionist shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the revisionist is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
(Alok Mathur, J.) Order Date :- 21.1.2021 Ravi/