1. This criminal revision has been preferred by the juvenile Vishal Maurya through his father Badri Prasad, under Section 102 of The Juvenile Justice (Care and Protection of Children) Act, 2015 (in short 'Act of 2015') against judgement and order dated 7.1.2020 passed by learned Additional Sessions Judge/Special Judge (POCSO Act), Sultanpur in Criminal Appeal No.127 of 2019 (Vishal Maurya Vs. State of U.P.) and order dated 14.11.2019 passed by the learned Juvenile Justice Board, Sultanpur/Amethi (in short 'J.J. Board') in Misc. Case No.90/2019 arising out of Case Crime No.178/2019, under Sections 363, 366, 120-B, 376-D of The Indian Penal Code ( in short 'I.P.C.') and Section 3/4 of The Protection of Children from Sexual Offences Act of 2012 ( in short 'POCSO Act') and Section 3(2) (v) of Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989 (in short 'SC & ST Act'), Police Station Bazar Shukul, District Amethi whereby the bail application of the juvenile was rejected by the learned J.J.Board and the appellate court dismissed the appeal preferred against the order of the learned J.J.Board.
2. The brief factual matrix necessary for disposal of this criminal revision is as under :-
3. On 13.6.2019, a First Information Report ( in short 'F.I.R.') was registered at Case Crime No.178 of 2019, on the basis of the complaint moved by Shambhu Singh. In the complaint, it was alleged that on 12.6.2019 at about 11.00 p.m., his daughter aged about 17 years was enticed away by Ansar, son of Rafeeq. He searched his daughter but nothing could be known. It has also been mentioned in the F.I.R. that in enticing away his daughter, there is complicity of Jahid, wife of Jahid, Kamalludin and Sajid.
4. Investigation started. During investigation, the name of the revisionist surfaced. He was taken into custody. He claimed juvenility and was so declared by the learned J.J.Board vide order dated 7.11.2019. His age was found 16 years and 10 months on the date of the incident. Thereafter, the revisionist moved bail application before the learned J.J.Board, that was rejected vide order dated 14.11.2019. Against the order of learned J.J.Board, the revisionist preferred an appeal under Section 101 of the Act of 2015 but that too was rejected.
5. Being aggrieved by the judgement of the learned appellate court and the order of the learned J.J.Board, this criminal revision has been preferred.
6. Heard S.K. Mishra, learned counsel for the revisionist and Shri Rao Narendra Singh, learned A.G.A. for the respondent State. None appeared on behalf of the respondent nos.2 and 3 despite of service of notice.
7. Learned counsel for the revisionist submitted that the revisionist is a juvenile. He was so declared by the learned J.J.Board. His age was found 16 years and 10 months on the date of the incident. He is in detention since 1.10.2019. He has no concern with the crime. The arrest of the main accused Mohd. Ansar has been stayed by this Hon'ble Court vide order dated 28.11.2019 passed in Writ Petition No.32775 (M/B) of 2019. The revisionist has been implicated in the crime due to trivial dispute which took place between the complainant and the revisionist regarding plucking of vegetables from the agricultural fields of the revisionist. The revisionist was not named in the F.I.R. The victim moved an application at the police station stating that she herself went with Ansar and that was noted in the General Diary of the Police Station. The statement under Section 164 of the Code of Criminal Procedure, 1973 ( in short 'Cr.P.C.') was recorded after a delay of about two months while the victim was in custody of her parents.
Learned J.J.Board as well as the learned appellate court have not applied their legal minds while passing the impugned judgement and order. Both the learned courts below have failed to appreciate the legal position that a juvenile can be denied bail only in the exceptional cases provided under Section 12(1) of the Act of 2015.
8. Learned counsel for the revisionist further submits that there is nothing adverse in the report of the District Probation Officer, Amethi (in short 'D.P.O.'). So the orders of the J.J.Board and appellate court should be set aside and the revisionist should be released on bail.
9. On the other hand, learned A.G.A. opposed the submissions of learned counsel for the revisionist and argued that the juvenile revisionist alongwith other co accused persons kidnapped the daughter of the complainant and committed rape on her as has been stated by the victim in her statement recorded under Section 164 Cr.P.C. The offence is very heinous hence the revision should be dismissed.
10. Considered the rival submissions and perused the record.
11. Section 12(1) of the Act of 2015, in this regard reads as under :-
"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 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 in to 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."
12. Legal position is that, for a juvenile in conflict with law bail is the Rule. The bail to a juvenile can be denied exceptionally.
A juvenile can be denied bail only if there appears reasonable ground for believing; (i) that the release is likely to bring the juvenile into association with any known criminal ; or,
(ii). expose the juvenile to moral, physical or psychological danger ; or,
(iii). release of the juvenile would defeat the ends of justice.
13. It is discernible from the record that the revisionist was declared juvenile by the learned J.J.Board vide order dated 7.11.2019. His age on the date of incident was found 16 years and 10 months. He was not named in the F.I.R.
Annexure No.4 shows that the victim submitted an application at concerned police station on 18.6.2019 stating that on 12.6.2019 at about 11.00 p.m., she herself went with Ansar to Delhi on her own free will. When she came to know about registration of the case, she has come back. The same was entered into general diary maintained at the police station. In her statement recorded under Section 161 Cr.P.C.(annexed as Annexure No.5), there is nothing about the revisionist. When the victim was taken for medical examination, she told to the doctor that Ansar took her away forcibly to Delhi and committed rape on her. Even in the statement given to the doctor, there is no mention of the name of the revisionist. The name of the revisionist has been revealed by the victim in her statement recorded under Section 164 Cr.P.C. which has been recorded on 6.8.2019 i.e. after 48 days of the recovery ( 18.6.2019) during which she remained with her parents.
14. Perusal of the D.P.O. report ( Annexure CA-1) shows that there is nothing adverse to the juvenile as to lead to the conclusion that juvenile if released on bail, would come into association of known criminals or the ends of justice stand defeated. There is no criminal antecedents of the juvenile. The revisionist is in detention since 1.10.2019.
15. Considering the above facts and circumstances and the settled position of law, the order of learned J.J. Board and the judgment of the learned appellate court are not sustainable. Therefore, it appears just to set aside the order passed by the learned J.J. Board and the judgement passed in appeal.
16. The revision is allowed.
17. Impugned judgement and order dated 7.1.2020 passed by learned Additional Sessions Judge/Special Judge (POCSO Act), Sultanpur in Criminal Appeal No.127 of 2019 (Vishal Maurya Vs. State of U.P.) and order dated 14.11.2019 passed by the learned J.J. Board in Misc. Case No.90/2019 arising out of Case Crime No.178/2019, under Sections 363, 366, 120-B, 376-D I.P.C. and Section 3/4 of POCSO Act and Section 3(2) (v) of SC & ST Act, Police Station Bazar Shukul, District Amethi are hereby set aside.
18. The juvenile (Vishal Maurya) shall be released on bail in Case Crime No.178/2019, under Sections 363, 366, 120-B, 376-D I.P.C. and Section 3/4 of POCSO Act and Section 3(2) (v) of SC & ST Act, Police Station Bazar Shukul, District Amethi.
It is pertinent to mention here, since the revisionist has now turned an adult and of age more than 18 years, he shall be released upon furnishing a personal bond himself and two sureties each of the like amount to the satisfaction of the learned J.J.Board, Sultanpur/Amethi. Out of two sureties, one shall be mother/father or close relative of the revisionist, subject to following conditions :-
(i) The 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 revisionist shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the 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 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.
(iv) The 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 applicant 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.
(v)The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
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(Saroj Yadav,J) Order date : 17.8.2021.
Shukla.