1. The revisionist, Sangam Sagar @ Roshan, a child in conflict with law is detained in connection with Case Crime no.149 of 2017, under Sections 376(2)(i) & 376D IPC and Section 5/6 of the Protection of Children from Sexual Offences Act (POCSO Act), Police Station Kopaganj, District Mau. The revisionist, who is in incarceration since 29.05.2017, has invoked the jurisdiction of this Court under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter referred to as the ''Act') assailing a judgment and order dated 08.12.2017 passed by Dr. Ajay Kumar, the then Additional Sessions Judge, Court no.1, Mau in Criminal Appeal no.57 of 2017, dismissing the said appeal preferred by the revisionist from an order dated 25.08.2017 passed by the Juvenile Justice Board, Mau in Application no.65 of 2017, rejecting the bail plea of the revisionist in the crime under reference.
2. The facts giving rise to the revision are that a First Information Report was lodged by opposite party no.2, an aunt (Maasi) of the prosecutrix on 23.05.2017 at 2.30 in the afternoon hours alleging that earlier in the day at 8.30 a.m., her niece, the prosecutrix aged about 13 years had gone a small distance away from home to cut grass, where a native of the village, Roshan son of Lakshman Prasad and another boy who was with him at the time dragged the prosecutrix into a sugarcane field and were attempting to molest her when the prosecutrix came over home crying, and, narrated all that had befallen her. The second opposite party closed the written information with a request that she had come to give information of the offence which may be registered as a First Information Report.
3. The revisionist who is in incarceration since 29.05.2017 applied to the Juvenile Justice Board seeking to be declared a juvenile. The Board after considering the application, hearing evidence in support of the plea, and, in particular, taking into account the date of birth of the revisionist recorded in his High School certificate which is 25.05.2000, proceeded to hold that the revisionist was a juvenile/ a child in conflict with law aged 16 years 11 months and 28 days on the date of occurrence, and, proceeded to declare him a juvenile vide order dated 05.07.2017.
4. The revisionist upon declaration by the Board holding him to be a juvenile, made an application to the Board numbered as Application no.65 of 2017 seeking restoration of his liberty by way of release on bail, which came to be rejected by the Board by their order dated 25.08.2017. The said order was challenged in appeal to the Sessions Judge, Mau vide Criminal Appeal no.57 of 2017, which came up for determination before the learned Additional Sessions Judge, Court no.1, Mau on 08.12.2017 and was dismissed approving denial of bail to the revisionist.
5. Heard Sri Sanjai Kumar Rai, learned counsel for the revisionist, Sri Vivek Kumar Singh, Advocate holding brief of Sri Gopal Krishna Pandey, learned counsel appearing for opposite party no. 2 and Sri Kamal Singh Yadav, learned AGA along with Sri Awanish Shukla, learned counsel appearing on behalf the State.
6. In this revision learned counsel appearing for the revisionist submits that there is no case whatsoever against the revisionist made out and if he were an adult, on the kind of evidence put forward by the prosecution, he would have been admitted to the concession of bail. It is submitted by the learned counsel for the revisionist that the prosecution case is founded on a First Information Report lodged by the aunt (Maasi) of the prosecutrix narrating an account of the information given to her by the prosecutrix. In the First Information Report, there is not as much as a hint about a case of rape, much less a case of gang rape. It is pointed out by the learned counsel that in the statement of the informant under Section 161 Cr.P.C., she reiterated whatever she had said in the First Information Report, which does not carry any allegation about the rape. It is pointed out that even if the First Information Report had carried some discrepant version of the occurrence by the time the statement under Section 161 Cr.P.C. came to be recorded, the informant would have become wiser by her niece or the prosecutrix's mother telling her the whole truth. Thus, the statement under Section 161 Cr.P.C. according to the learned counsel reiterating the First Information Report version sans rape excludes the case of rape at the inception. It is submitted that the case of rape by the two accused was introduced under Section 161 Cr.P.C. through a further statement of the prosecutix that was later on recorded and reiterated before the Magistrate under Section 164 Cr.P.C.
7. It is urged with much vehemence by the learned counsel for the revisionist that the conspicuous absence of the allegation of rape in the FIR, particularly, in the context that later an allegation of rape was brought, ex facie renders the prosecution case, about the offence of rape (gang rape), a product of afterthought to settle some old scores between the two families. It is urged that a perusal of the medico legal report shows that no mark of injury has been found on the body of the prosecutrix, which going by the nature of the allegation where force was allegedly used in a gang rape, discredits the prosecution story.
8. It is submitted that the age of the prosecutrix has been found below 18 years; it would mean that the medical estimation finds her to be just below the age of 18 year. This, going by the settled principle would be construed with a variation of two years on either side and that has to be construed on the side advantageous to the accused. Thus, the prosecutrix would be 18 years of age going by the medical estimation of her age excluding the applicability of the POCSO Act.
9. This Court would postpone an evaluation of these submissions until after scrutiny of the two orders that have concurrently denied bail to the revisionist, under revision. A perusal of the order of the Juvenile Justice Board shows that they have hardly said anything for a reason to discard the bail plea except an ipse dixit of the members of the Board that on parameters of the proviso to Section 12(1) of the Act, paraphrased in sketchy terms, the revisionist is not entitled to bail. Not much would, thus, turn upon the order of the Board.
10. Turning to the order impugned by the learned Sessions Judge, the learned Judge appears to have proceeded on the premise that merits of the case against the juvenile have not to be seen at all as bail for him is a right and denial an exception. All that that has been seen is to whether on any of the three categories enumerated in the proviso to Section 12(1) of the Act does the case of the juvenile fall so as to disentitle him to bail which is otherwise his right. The learned Sessions Judge has referred to decisions of this Court and the Hon'ble Supreme Court to put in perspective the legal parameters for the application of the three disentitling grounds under the proviso to Section 12(1) last mentioned. He has taken notice of decisions which say that in heinous offences like rape, murder, rebellion against the State, pushing narcotics, a cautious approach should be adopted. And, for such children involved as they are in heinous offences, the protective umbrella of the Act should not be permitted to be utilized as a camouflage for their otherwise matured criminal mindset as that would lead to the ends of justice being defeated.
11. The learned Sessions Judge has taken into consideration the Social Investigation Report wherein the learned Judge has picked up certain remarks to conclude that the report does not show a particular habit or interest in studies for the juvenile. He has also inferred that the report does not show any excellent qualities or personality for the juvenile. With that much of remark about the Social Investigation Report, the learned Judge in appeal has moved on to look to the merits of the case, as he should logically have done, analyzing the statements of the prosecutrix under Sections 161 and 164 Cr.P.C. The learned Judge has noticed the statement of the prosecutrix under Section 161 Cr.P.C., her additional statement under Section 161 Cr.P.C. and that under Section 164 Cr.P.C., where a specific role has been assigned to the revisionist. The First Information Report not mentioning the fact of rape has been glossed over, and, instead there is in the learned Judge's order a convenient jump over that evident contradiction between the First Information Report and the subsequent statement of the prosecutrix to conclude that commission of a heinous offence in the presence of the co-accused makes the offence worse and it cannot be said that the act is the result of an immature mental faculty.
12. The learned Judge has recorded a finding that an offence of the kind committed in itself discloses perversion of mind and moral depravity. He has remarked that it is not an act done by a youth attributable to his inexperience but discloses a matured mind that has a psychological inclination towards crime. After finding the revisionist wholesomely guilty prima facie, the learned Judge has also, as would appear from his judgment condemned him wholeheartedly. At the tailend of all these remarks about the merits of the prosecution case prima facie, the learned Judge says almost, as if it were ceremony, that without commenting on merits, in his opinion releasing the revisionist on bail has the likelihood of exposing the revisionist to moral and psychological danger and further that keeping in mind the young victim of the crime, his release on bail would lead to ends of justice being defeated.
13. The learned Judge has also recorded the fact that the appeal of the co-accused from the order of the Board rejecting his bail being Appeal no.47 of 2017 had been rejected by him earlier vide an order dated 22.11.2017 holding sub silentio, as if it were, that the revisionist's plea for bail in appeal is liable to be rejected on parity with the rejection of a similar plea by the co-accused. Regarding this part of the short expression of opinion by the Appellate Court by silence this Court wishes to say here and not any further that even in cases of bail pleas by adults the principle of parity is well known to apply to a case of grant of bail; there is no parity in the matter of rejection. The Appellate Court with so much said about the merits of the case against the revisionist based on the nature of the crime prima facie has held that his case falls in more than one of the disentitling categories and parted with the matter approving the view of the Board dismissing the appeal.
14. This Court is of opinion that in cases where on the merits of the prosecution case there is no case made out against the accused, it would not be the right approach in the case of a juvenile to assume a case against him and then invoke his right to bail under Section 12(1) of the Act with a further probe to find out whether the juvenile's case falls under one or the other disentitling categories envisaged by the proviso to Section 12(1) of the Act. In case, the prosecution on merits prima facie do not have a case good enough to deny bail to an adult offender, there is no good reason to test a bail plea of the juvenile only with reference to Section 12(1) of the Act. If that were to be done it would be denying the juvenile the equal protection of laws guaranteed by Article 14 of the Constitution. It is only when the prosecution have a prima facie case good enough to deny bail to an adult offender that the juvenile's plea for bail being founded on an otherwise statutory right to be enlarged even in non-bailable cases has to be tested with reference to the three disentitling grounds under the proviso to Section 12(1) of the Act.
15. This Court had occasion to consider the law in Dharmendra (Juvenile) vs. State of U.P. another, Criminal Revision no.4141 of 2017, decided on 13.04.2018, wherein this Court held thus:-
10. The matter can be looked at from another vantage. In case the revisionist were an adult and stood charged of the offence that he faces with a weak circumstantial evidence of last seen and confession to the police, in all probability, it would have entitled him to bail pending trial. If on the kind of evidence forthcoming an adult would be entitled to bail, denying bail to a child in conflict with law may be denying the juvenile/ child in conflict with law the equal protection of laws guaranteed under Article 14 of the Constitution.
11. The rule in Section 12(1) of the Act is in favour of bail always to a juvenile/ child in conflict with law except when the case falls into one or the other categories of denial contemplated by the proviso. It is not the rule about bail in Section 12 of the Act that in case a child in conflict with law is brought before the Board or Court, his case is not to be seen on merits prima facie about his complicity at all for the purpose granting him bail; and all that has been done is to see if his case falls is one or the other exceptions, where he can be denied bail. The rule in Section 12 sanctioning bail universally to every child in conflict with law presupposes that there is a prima facie case against him in the assessment of the Board or the Court based on the evidence placed at that stage. It is where a case against a child in conflict with law is prima facie made out that the rule in Section 12(1) of the Act that sanctions bail as a rule, except the three categories contemplated by the proviso comes into play. It is certainly not the rule, and, in the opinion of the Court cannot be so, that a case on materials and evidence collected not being made out against a child at all, his case has to be tested on the three parameters where bail may be denied presuming that a prima facie case is constructively there. Thus, it would always have to be seen whether a case prima facie on merits against a child in conflict with law is there on the basis of material produced by the prosecution against him. If it is found that a prima facie case on the basis of material produced by the prosecution is there that would have led to a denial of a bail to an adult offender, in that case also the Rule in Section 12(1) of the Act mandates that bail is to be granted to a juvenile/ child in conflict with law except where his case falls into any of the three disentitling categories contemplated by the proviso.
12. In the opinion of this Court, therefore, the perception that merits of the case on the basis of prima facie evidence is absolutely irrelevant to a juvenile's bail plea under the Act would not be in conformity with the law. The catena of decisions that speak about merits of the case or the charge against a juvenile being irrelevant, proceed on facts and not an assumption that a case on merits is made out, and, not where the case is not at all made out prima facie. It is not that a child alleged to be in conflict with law against whom there is not iota of evidence to connect him to the crime would still have bail denied to him because his case may be placed in or the other disentitling categories under the proviso to Section 12(1) of the Act. If this kind of a construction were to be adopted it might expose the provisions of Section 12(1) of the Act to challenge on ground of violating the guarantee of equal protection of laws enshrined in Article 14 of the Constitution. It is an enduring principle that a construction that lends a statute to challenge about its constitutionality should be eschewed and one that saves and upholds its vires is to be adopted. In this context the guidance of their Lordships of the Hon'ble Supreme Court in Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 may be referred to:-
"51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of 'litera legis'. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution."
16. Assessing the revisionist's case on the parameters of how his plea for bail would have been dealt with if he were an adult, a perusal of the prosecution case prima facie does have an inconsistency that more than meets the eye. The First Information Report lodged by the aunt (mother's sister) of the prosecutrix is based upon information given by the prosecutrix spontaneously as she emerged from the trauma of assault. A first information based on a prompt account of the victim should miss as important an allegation as gang rape is hard to accept. Even otherwise a matured woman would have certainly gathered from the countenance of her niece that something as devastating as gang rape had happened, even if the prosecutrix, as she has later on sought to explain, not spoken about it out of an embarrassment. The aunt would have soon discovered facts going by the enormity of the violation, before she spoke to the police and lodged the First Information Report where the allegations of rape and gang rape are conspicuous by absence. The allegation of rape and gang rape is conspicuous also by its absence in the first informant's statement under Section 161 Cr.P.C. recorded later on by the police by which time logically, full and complete facts would be known to the entire family, the informant being a sister of the prosecutrix's mother. The explanation by the prosecutrix in her additional statement under Section 161 Cr.P.C. to the effect that she did not speak about rape to her aunt (Maasi) out of embarrassment on 23.05.2017 prima facie does not inspire confidence because an experience for a young girl in her teen years as harrowing as gang rape is highly unlikely to keep her back from speaking out all her woes to the first person of confidence which the aunt certainly was in this case. It appears that the entire story of rape and gang rape for whatever reason, as urged by the learned counsel for the revisionist is one introduced subsequently, prima facie has substance for the aforesaid reason and one more.
17. For the added reason to suspect the story of rape and gang rape introduced by the prosecutrix later on, it would be profitable to extract verbatim the additional statement of the prosecutrix under Section 161 Cr.P.C. to the police (annexed as Annexure 3 to the affidavit in support of the revision) and the statement of the prosecutrix under Section 164 Cr.P.C. recorded before the Chief Judicial Magistrate (annexed as Annexure 4 to the affidavit in support of the revision):-
"ethn c;ku ihfM+rk ------------& ihfM+rk ---------- fuoklh idMh [kqnZ Fkkuk ?kkslh tuin eÅ us crk;k fd lj mu nksuksa yksxksa us esjs lkFk fn0 23-05-2017 dks cykRdkj fd;k Fkk eSa 'keZ ls bls vius ekSlh dks ugha crkbZ Fkh vkt fn0 28-05-2017 dks esjh ekrk ,oa firk us eq>s iwWNk rks ;g ckr geus crkbZ ;g iwWNrkaN efgyk vk0 izhfr ;kno ds le{k fd;k x;k tks vUrxZr /kkjk 161 lh0vkj0ih0lh0 fy;k x;k gSA ;gh esjh c;ku gSA crkdj jksus yxhA"
c;ku ihfM+rk ----------- vUrxZr /kkjk& 164 lh0vkj0ih0lh0 eS m0fu0 lanhi ;kno Fkkuk/;{k dksikxat tuin eÅ izekf.kr djrk gwW fd eq0v0la0 [email protected] /kkjk 376&2>] 376?k vkbZ0ih0lh0 ,oa [email protected] ikDlks ,DV ls lEcfU/kr ihfM+rk dq0 ---------- fuoklh idMh Fkkuk ?kkslh tuin eÅ dh QksVks rLnhd djrk gwWA g0vi0 31-05-2017 U;k;ky; eq[; U;kf;d eftLVªsV] eÅ c;ku vUrxZr /kkjk 164 lh0vkj0ih0lh0 31-03-2017
------------- fuoklh idMh Fkkuk ?kkslh tuin& eÅ us c;ku fd;k fd eS NaBoh d{kk esa i<+rh gwWA eSa ?kj ls ?kkl dkVus x;h Fkh ?kj ls ikl esa gh gSA esjs xkWo ds jks'ku ,oa mudk HkkUtk ftudk uke ugha tkurh gwW nksuksa us esjs lkFk NsM+[kkuh fd;s Fks fQj dgk fd esjs lkFk jks'ku us cykRdkj fd;s Fks [kwu vk;k FkkA jks'ku ds Hkkats us esjs lkFk dqN ugha fd;k FkkA jks'ku eq>ls cM+s gSA ftl [ksr esa esjs lkFk cykRdkj fd;k x;k mlesa xUuk yxk gSA eSus jks'ku dks nkWr dkV fy;k FkkA 'kksj epk;k FkkA ogkW ls eS iSny ?kj vk;h ?kj ij ekSlh Fkh eSus mudks ?kVuk dh tkudkjh nhA esjs eEeh ikik vk;s gSA eS mUgh ds lkFk tkÅWxhA
------------
ekyrh mijksDr c;ku ihfM+rk ds cksyus ij efgyk deZpkjh ekyrh dh mifLFkfr esa esjs }kjk fy[kk x;kA mijksDr c;ku ihfM+rk dks i<+dj lquk fn;kA mlus mldk lgh gksuk Lohdkj fd;kA g0vi0 lh0th0,e0 eÅ "
18. A juxtaposition of the two statements carries this very material contradiction that in the statement under Section 164 Cr.P.C., there is a positive mention that the other accused referred to as "Roshan Ke Bhanje" did not do anything to her, whereas in the additional statement to the police under Section 161 Cr.P.C., there is a categorical case that both the accused raped her on 23.05.2017, on account of which the offence under Section 376D IPC has been charged. A reading of the statement further under Section 164 Cr.P.C. also shows that in one breadth the prosecutrix says that both Roshan and his nephew had molested her and in the next says that Roshan had raped her, whereas his nephew did not do anything. Prima facie, and, without expressing any opinion that may be read to the prejudice of either of the parties, the statement of the prosecutrix is far from what would make out even a reasonable prima facie case for the prosecution. In the opinion of this Court with so much of material, irreconcilable, and, intriguing contradiction between the First Information Report, the statement of the prosecutrix under Section 161 Cr.P.C., her additional statement under Section 161 Cr.P.C., and, her statement under Section 164 Cr.P.C., an adult offender would, in all likelihood, be enlarged. This Court is, therefore, not at all in agreement with the opinion of the learned Sessions Judge who has almost found prima facie an ironclad case for the prosecution.
19. Looking to the case on parameters on which the bail of right can otherwise be denied to a juvenile, there is nothing on record either in the Social Investigation Report or otherwise that the revisionist has any kind of criminal history or that his family have a history with crime or any circumstance to show that there are reasonable grounds to believe that in case of release on bail, there is likelihood of the revisionist coming into association with any known criminal. Equally, there is nothing on record to show that releasing the revisionist would expose him to any kind of moral, physical or psychological danger. The revisionist appears to have a caring family who may not be affluent but there is nothing to show that there is any such discord or lack of cohesiveness that may expose the child to moral, physical or psychological danger. The nature and the circumstances of the crime as a whole are also not such that releasing the revisionist on bail would defeat the ends of justice. Thus, seen from any vantage, there is no warrant to deny the revisionist his liberty and to keep him in institutional incarceration. The impugned orders are, therefore, not liable to be sustained.
20. In the result, this revision succeeds and is allowed. The impugned order dated 08.12.2017 passed by the learned Additional Sessions Judge, Court no.1, Mau in Criminal Appeal No.57 of 2017 and the order dated 25.08.2017 passed by the Juvenile Justice Board, Mau in Application no.65 of 2017, arising out of Case Crime no.149 of 2017, under Sections 376(2)(i) & 376D IPC and Section 5/6 of the POCSO Act, Police Station Kopaganj, District Mau, are hereby set aside and reversed. The bail application being Application no.65 of 2017 made on behalf of the revisionist before the Board through his father stands allowed.
21. Let the revisionist, Sangam Sagar @ Roshan through his natural guardian/ father Lakshman Prasad be released on bail in Case Crime no.149 of 2017, under Sections 376(2)(i) & 376D IPC and Section 5/6 of the POCSO Act, Police Station Kopaganj, District Mau upon his father furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Mau subject to the following conditions:
(i) that the natural guardian/father Lakshman Prasad will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the father will ensure that the juvenile will not repeat the offence.
(ii) The revisionist and his father Lakshman Prasad will report to the District Probation Officer on the first Monday of every calendar month commencing with the first Monday of September, 2018 and if during any calendar month the first Monday falls on a holiday, then on the following working day.
(iii) The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Mau on such periodical basis as the Juvenile Justice Board may determine.
Order Date :- 31.07.2018 Anoop