Court No. - 82
Case :- CRIMINAL REVISION No. - 535 of 2021 Revisionist :- Surendra @ Gunga Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Kali Charan Yadav Counsel for Opposite Party :- G.A.
Hon'ble Ajai Kumar Srivastava-I,J.
Heard learned counsel for the revisionist and learned A.G.A. for the State and perused the record.
The instant Criminal Revision is preferred against the impugned judgment and order dated 31.10.2020 passed by Additional Sessions Judge (POCSO Act), Basti in Criminal Appeal No.61 of 2019, Surendra @ Gunga vs. State of U.P., under Section 101 of the Juvenile Justice (Care and Protection of Children) Act 2015 as well as order dated 29.11.2019 passed by Juvenile Justice Board, District Basti, under Section 12 of the Juvenile Justice (Care and Protection of Children) Act 2015 arising out of Case Crime No.129 of 2019, under Section 302 I.P.C., Police Station Sonaha, District Basti, whereby the application for releasing the revisionist on bail has been rejected by the courts below.
From the perusal of the report of Chief Judicial Magistrate, Basti dated 18.10.2021 it transpires that the service of notice upon opposite party no.2 is sufficient. However, none appeared on behalf of the opposite party no.2.
It has been submitted by learned counsel for the revisionist that the revisionist is innocent who has falsely been implicated in the present case. He has further submitted that the revisionist hails from a family who have no criminal history. He has drawn attention of this Court to the fact that the revisionist has been implicated in the present case on the basis of circumstantial evidence and more particularly alleged evidence of being last seen. His further submission is that both the courts below have been swayed by the alleged seriousness of the offence, whereas for the purposes of enlarging the revisionist on bail under proviso to Section 12(1) of The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as Act of 2015) is significant, which has been overlooked by the court below, therefore, impugned judgment and orders are not sustainable in the eyes of law. He has further submitted that revisionist is confined in the Children Reformatory Home since 04.08.2020. The only three years institutional incarceration permissible for a juvenile, under Section 18(1)(g) Act of 2015.
In particular, the learned Counsel for the revisionist has drawn attention of the Court to the social investigation report dated 27.11.2019, which clearly shows that the revisionist is a dumb and belongs to a normal family with no criminal record and no disentitling facts.
Per contra, learned A.G.A. submits that the revisionist though a juvenile in conflict with law, is a budding criminal. He is involved in an offence which has serious adverse societal impact. His further submission is that upon his release, there is every likelihood that he will come into association with known criminals, that would lead to the revisionist facing physical, psychological and moral danger. It is, therefore, submitted by the learned A.G.A. that the revisionist's case falls under the disentitling contingencies postulated under the proviso to Section 12(1) of the Act of 2015. However, he could not dispute the fact that the social investigation report dated 4.1.2021 does not disclose existence of any disentitling facts.
This Court has keenly considered the rival submissions and perused the records.
The revisionist was declared a juvenile vide order dated 8.11.2019 passed by Juvenile Justice Board, Basti in the aforesaid case and he was held to be a juvenile, aged about 16 years 01 Month and 17 days on the date of occurrence and this fact remains undisputed.
Bail can be denied to a juvenile in the circumstances enumerated under the proviso to Section 12(1) of the Act of 2015. Section 12 reads:
"12. Bail to a person who is apparently a child alleged to be in conflict with law.-
(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.
(2) When such person having been apprehended is not released on bail under sub-section (1) by the officer in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.
(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."
From the perusal of the F.I.R. and the overall facts and circumstances of the present case, it is revealed that the revisionist had no criminal history prior to the present case. His family members too have no criminal history. A perusal of the social investigation report dated 4.1.2021 also clearly projects that the revisionist is a dumb and belongs to a normal family with no criminal record and no disentitling facts. The entire report does not indicate any credible fact or factor which brings the case of the revisionist in any of the three disentiteling reasons postulated under the proviso to Section 12(1) of the Act of 2015.
A perusal of the impugned orders passed by the Juvenile Justice Board and court below show that the both courts below have been swayed by the fact that the nature of offence is heinous and therefore, they have concluded that the case of revisionist falls in the three disentitling exceptions postulated under under the proviso to Section 12(1) of the Act of 2015. This Court in the case of Shiv Kumar alias Sadhu vs. State of U.P. 2010 (68) ACC 616 (LB) has held that the gravity of the offence is not relevant consideration for refusing grant of bail to the juvenile. There is nothing on record which substantiates the aforesaid findings/conclusion of the courts below. The aforesaid finding of the courts below is thus, based on surmises and conjunctures only.
In view of the overall facts and circumstances of the case and the mandate of the proviso to Section 12(1) of the Act of 2015, this Court is of the considered opinion that there is nothing on record on the basis of which it can be inferred that the revisionist's case is one that falls into any of three exceptions postulated under the proviso to Section 12(1) of the Act of 2015. The courts below have acted with material irregularity.
The instant revision, thus, deserves to succeed for the reasons mentioned hereinabove.
In the result, the instant criminal revision succeeds and is allowed. The impugned judgment and order dated 31.10.2020 passed by Additional Sessions Judge (POCSO Act), Basti in Criminal Appeal No.61 of 2019, Surendra @ Gunga vs. State of U.P., under Section 101 of the Juvenile Justice (Care and Protection of Children) Act 2015 as well as order dated 29.11.2019 passed by Juvenile Justice Board, District Basti, under Section 12 of the Juvenile Justice (Care and Protection of Children) Act 2015 arising out of Case Crime No.129 of 2019, under Section 302 I.P.C., Police Station Sonaha, District Basti are hereby, set aside and reversed. The bail application of the revisionist stands allowed.
Let the revisionist, Surendra @ Gunga through his natural guardian father be released on bail in Case Crime No.129 of 2019, under Section 302 I.P.C., Police Station Sonaha, District Basti upon his natural guardian 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, Basti subject to the following conditions:
(i) that the natural guardian father 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 natural guardian father will report to the District Probation Officer on the first Monday of every calendar month, commencing with the first Monday of January, 2022 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, Basti on such periodical basis as the Juvenile Justice Board may determine.
Order Date :- 16.12.2021/A.Dewal