Court No. - 88
Case :- CRIMINAL REVISION No. - 326 of 2021 Revisionist :- Sandesh @ Kallu Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Sanjai Kumar Singh,Ram Pravesh Yadav Counsel for Opposite Party :- G.A.
Hon'ble Vipin Chandra Dixit,J.
Despite service of notice, no one has put in appearance on behalf of opposite party no.2.
Counter affidavit filed by learned AGA is taken on record.
Heard learned counsel for revisionist, learned A.G.A. for the State and perused the record.
The present criminal revision has been preferred against the judgment and order dated 16.9.2020 passed by Juvenile Justice Board, Kushinagar and order dated 29.10.2020 passed by Additional Sessions Judge/Special Judge (POCSO) Act, Court No.1, Kushinagar in Criminal Appeal No.49 of 2020 (Sandesh @ Kallu Vs. State of U.P. and another) arising out of Case Crime No.83 of 2019, under Sections 363, 366, 376 IPC and section 3/4 POCSO Act, P.S. Barwa Patti, District Kushinagar.
It is submitted by learned counsel for revisionist that revisionist is juvenile and has been falsely implicated in this case. The statement of victim was recorded under Section 161 Cr.P.C. in which she has stated that she went to Mumbai with revisionist with her own will and they stayed there for about nine days. It is submitted by learned counsel for the revisionist that in the statement of victim recorded under Section 164 Cr.P.C. there were no allegation of rape levelled against the revisionist. The age of victim was assessed as 17 years in the medical report. It is submitted by learned counsel for the revisionist that two years variation on upper side is possible and as such the victim is major and from the statements of victim recorded under Sections 161 and 164 Cr.P.C. it appears that she is consenting party and as such no offence is made out against the revisionist. It is further submitted that revisionist has no criminal history and he is in observation home since 1.12.2019. He argues that admittedly, the revisionist is a juvenile and while deciding the bail application, the Juvenile Justice Board has solely considered the gravity of the offence alleged and had not even considered the requirement of the proviso to Section 12 (1) of the Juvenile Justice (Care and Protection) Act, 2015 (in short 'the Act'). He argues that the Appellate Court had committed the same error in dismissing the appeal.
Learned A.G.A. has opposed the bail prayer.
I have perused the order rejecting the bail application and the appeal, which does not record any reasons as required in terms of the proviso to Section 12 (1) of the Act.
Considering the age of the revisionist who is minor and in custody since 1.12.2019, the revision deserves to be allowed. Accordingly, the revision is allowed and the impugned orders dated 16.09.2020 and 29.10.2020 are set aside.
The bail application of the revisionist is also allowed.
Let revisionist Sandesh @ Kallu be released on bail in the aforementioned case on furnishing a personal bond and two sureties of the like amount to the satisfaction of Chief Judicial Magistrate/Juvenile Justice Board concerned.
Order Date :- 20.9.2021 Tamang