Heard Shri Ram Kushal Tiwari, learned counsel for revisionist, Shri Rajesh Kumar, learned A.G.A. for the State and perused the record.
None is present for the opposite party no.2 despite notice has been served on him.
The instant revision has been filed with a prayer to set aside the judgment and order dated 23.09.2020 passed by the Additional Sessions Judge/Special Judge (P.O.C.S.O. Act), Court No.12, District Sultanpur passed in Criminal Appeal No.33 of 2020 (Sultan v. State of U.P. and another) and order dated 01.09.2020 passed by the Juvenile Justice Board, Sultanpur in Case No.40 of 2020 relating to Case Crime No.60 of 2020, under Sections 376 AB, 376 A I.P.C. & 5/6 of the P.O.C.S.O. Act, Police Station Kudwar, District Sultanpur, whereby the prayer of bail of the revisionist has been rejected by both the courts below.
Learned counsel for revisionist submits that the first information report of the case was lodged by the father of the prosecutrix wherein the revisionist was not named, however, in the statement of the informant recorded under Section 161 Cr.P.C. for the very first time the name of the revisionist has surfaced. It is further submitted that the statement of the mother of the prosecutrix as well as of the prosecutrix was recorded under Sections 161 and 164 Cr.P.C. wherein she has also taken the name of the revisionist along with two other unknown persons, who according to her (prosecutrix) have muffled their faces.
Highlighting the above factual matrix, it is vehemently submitted that there is material contradiction in the statement of the informant as well as in the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. and thus the same casts a cloud of suspicion over the story of the prosecution. It is further submitted that the bail of juvenile could only be declined if the conditions mentioned in the proviso appended with Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 are attracted. While keeping in view the report of the District Probation Officer, no such condition is attracting in this case and therefore, since the revisionist - juvenile is not having any criminal history and is detained in detention home since one and a half years be released on bail and the orders of the subordinate courts be quashed.
Learned A.G.A. on the other hand submits that this is a case where a young girl of 7 years has been ravished by juvenile. The first information report has been lodged by father of the prosecutrix and name of the revisionist has surfaced on the next day when the statement of the informant was recorded by the investigating officer under Section 161 Cr.P.C. wherein it is specifically stated by him that the prosecutrix had now revealed the name of the wrong doer as the revisionist.
It is further submitted that the prosecutrix due to the heinousness act of the revisionist had to remain hospitalized for many days and has also undergone many surgical procedures. It is further submitted that the marks of injury on the person of the prosecutrix are itself sufficient to narrate the heinousness and the maturity by which the offence has been committed by the instant juvenile and therefore, when the offence has been committed by sufficient maturity the juvenile cannot take shelter behind his juvenility and thus having regard to all the facts and circumstances of the case, the revisionist is not entitled to be released on bail and there appears no illegality in the order of both the courts below.
Having heard learned counsel for parties and having perused the record, it is evident that though the revisionist juvenile was not named in the first information report but as soon as the name of the revisionist was revealed by the prosecutrix, the same was disclosed to the investigating officer by the informant as well as by the mother of the prosecutrix wherein it is specifically stated that the prosecutrix had told them the name of the revisionist as a person, who had raped her. The perusal of the record would also reveal that though in the statement of the prosecutrix recorded under Section 164 Cr.P.C. the name of the two other unknown persons, who stated to have muffled their faces, have also been mentioned but there is no contradiction in the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. So far as the role of the instant revisionist in committing the crime is concerned, learned counsel for the revisionist has relied on two judgements of this Court Juvenile Accused Prem Kumar thru. His Father Kashi Ram Pasi v. State of U.P. and another; 2019 (3) JIC 296 (All) and Santosh v. State of U.P. and another; 2019(3) JIC 696 (All).
There cannot be any other proposition then the fact that under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015, for juvenile in conflict with law grant of bail is rule while the rejection is an exception and the bail of the juvenile could only be rejected/dismissed on the grounds mentioned in the proviso appended with Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015, for convenience, the same is reproduced as under:-
"Section 12(1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or 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 or placed under the supervision of a probation officer or under the care of any fit person.
Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision."
It is noticeable that the legislature in its wisdom while enacting Section 12 has appended the proviso, which says that the juvenile will not be released on bail if the release of juvenile is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or his release would otherwise 'defeat the ends of justice'.
The peculiar facts and circumstances of the case are so which prima facie reveals that the manner in which the heinous offence has been committed by the juvenile is evident from the medical report of the prosecutrix, available on record which speaks volumes about the manner in which this inhuman act has been committed. This Court in Monu @ Moni @ Rahul @ Rohit v. State of U.P.; 2011 (74) ACC 353 in paragraph Nos. 14 and 15 of the report held as under:
"14. Aforesaid section no where ordains that bail to a juvenile is a must in all cases as it can be denied for the reasons"......if there appears 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."
15. In the light of above statutory provision bail prayer of the juvenile revisionist has to be considered on the surrounding facts and circumstances. Merely by declaration of being a juvenile does not entitle a juvenile in conflict with law to be released on bail as a matter of right. The Act has a solemn purpose to achieve betterment of juvenile offenders but it is not a shelter home for those juvenile offenders who have got criminal proclivities and a criminal psychology. It has a reformative approach but does not completely shun retributive theory. Legislature has preserved larger interest of society even in cases of bail to a juvenile. The Act seeks to achieve moral physical and psychological betterment of juvenile offender and therefore if, it is found that the ends of justice will be defeated or that goal desired by the legislature can be achieved by detaining a juvenile offender in a juvenile home, bail can be denied to him. This is perceptible from phraseology of section 12 itself. Legislature in its wisdom has therefore carved out exceptions to the rule of bail to a juvenile." (Emphasis Mine) The Hon'ble Supreme Court in the case of Om Prakash vs. State of Rajasthan and another; 2012 (5) SCC 201 has brought in due concern in matters relating to juveniles where the offences are heinous like rape, murder, gang-rape and the like etc., and, has indicated that in such matters, the nature and gravity of the offence would be relevant; the minor cannot get away by shielding himself behind veil of minority. It has been held in Om Prakash (supra) by their Lordships thus:
"3. Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of children/juvenile by the juvenile court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a juvenile court or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held.
23. ...... Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him."
The above case laws are sufficient enough to hold that though the bail to a juvenile is rule, but the discretion of the court is not to be exercised in favour of the juvenile when the act of the juvenile is such which may shook the confidence of the general public and may defeat the ends of justice. Thus, keeping in view all the facts and circumstances of the case specifically the manner in which the offence has been committed and the injuries sustained by the prosecutrix, I am of the considered view that the release of the juvenile on bail would definitely defeat the ends of justice and thus I do not find any illegality or to say any irregularity in the impugned orders passed by both the courts below. The revision is thus not having any substance and the same is dismissed.
Order Date :- 26.8.2021 Anupam S/-