Sunny Kumar Gaud Ali v. State of U.P.) under Section
Case Details
Reserved on 08.03.2022 Delivered on 24.03.2022 Court No. - 90 1 Case :- CRIMINAL REVISION No. - 1581 of 2021 Revisionist :- Sunny Kumar Gaud Ali Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Ganesh Mani,Bipin Kumar Tripathi,Hari Narayan Singh Counsel for Opposite Party :- G.A. Hon'ble Mrs. Sadhna Rani (Thakur), J. The present revision has been preferred against the judgement and order dated 08.01.2021 passed by the Additional District and Special Sessions Judge, POCSO Act-I, Gorakhpur rejecting the Criminal Appeal No. 113 of 2020 (Sunny Kumar Gaud Ali Vs. State of U.P.) under Section 52 of
Legal Reasoning
Juvenile Justice (Care and Protection of Children) Act, 200 arising out of Case Crime No. 699 of 2020 under Sections 376, 452, 504, I.P.C. and 5/6 POCSO Act, Police Station Sahjanwa, District Gorakhpur as well as the order dated 22.12.2020 passed by the Principal Magistrate, Juvenile Justice Board, Gorakhpur. As per facts of the case, Case Crime No. 699 of 2020 was registered against the present accused on 27.09.2020 under Sections 376, 452, 504 I.P.C. and 3/4 POCSO Act with the assertion that about 11.00 p.m. the 13 years' old minor daughter of the first informant was sleeping in the house. The accused Sunny came and after closing her mouth by his hand took her on the road. When the girl shouted, the accused abused her and by gagging her mouth made physical relation with her and when the complainant reached on the spot he fled away leaving the girl. Vide order dated 04.12.2020 the revisionist was declared juvenile. The bail application was moved on behalf of the juvenile before the Principal Magistrate, Juvenile Justice Board, which was rejected vide order dated 22.12.2020 and its appeal was also rejected by the Additional District and Special Sessions Judge, POCSO Act-I, Gorakhpur vide order dated 2 08.01.2021. Against both these orders the present revision has been preferred on the ground that the orders passed by the trial courts suffer from illegality, infirmity and incorrectness, which is apparent on the face of record itself. As per medical report no injury has been found on any part of the body of the victim so it cannot be said that any crime has been committed against her. In her statement under Section 164 Cr.P.C. the victim could not disclose the date of occurrence. The revisionist has no criminal history and due to enmity he has been falsely implicated. It is wrongly observed by the courts below that the release of the revisionist will indulge him in similar crime again. He is ready ot file sufficient sureties. He gives an undertaking that he will not misuse the liberty of bail. Hence both the orders of the trial court which are not tenable in the eyes of law be quashed and revision be allowed and the revisionist be released on bail. Despite sufficient service no one has put in appearance on behalf of the opposite party no. 2, the first informant. Learned A.G.A. has filed counter affidavit and argued that the revisionist is named in the first information report whereby he is alleged to have committed rape on the minor daughter of the first informant. In her statement under Section 161 and 164 Cr.P.C. the victim has clearly stated that the revisionist has committed rape upon her. The revisionist has criminal history of one case as Case Crime No. 376 of 2016 under Section 323, 504, 325 I.P.C. Police Station Sahjanwa, District Gorakhpur. Both the impugned orders are just, proper and in accordance with law and in view of the aforesaid facts the revisionist is not entitled for bail and the prayer for dismissal of the revision is made.
Legal Reasoning
Heard learned counsel for the revisionist, learned A.G.A. and perused the record. The relevant section with regard to bail of a juvenile is Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which is reproduced as under:- 3 “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 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 appear 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.” Thus, it is clear from the law that the bail of juvenile is a rule and rejection of bail is an exception. Only in the case of exception mentioned in second paragraph of the Section 12 (1) the bail of juvenile can be rejected. These exceptions are (1) if there appears reasonable ground for believing that the release is likely to bring that person into association with any known criminal (2) the release shall expose the said person to moral, physical or psychological danger or (3) his release would defeat the ends of justice. The Juvenile Justice Board shall record the reasons for denying the bail. The Apex Court also held in Om Prakash Vs. State of Rajasthan & another, (2012) 5 SCC 201 that the court must be sensitive in dealing the juvenile, who is involved in the case of serious nature like sexual molestation, rape, gang rape, murder and other offences. In the case in hand the allegation is that a 13 years girl was sleeping with her grand father and she is said to have taken away by the accused by closing her mouth and when she shouted the revisionist is alleged to have made physical relations with her by gagging her mouth and when the complainant came the revisionist fled away leaving the girl. If the statement of the victim is scrutinized, in her statement under Section 161 Cr.P.C. she has stated that when she was sleeping in her house Sunny came inside the house, closed her mouth, took her on the road, abused her and committed wrong with her after gagging her mouth. When her mother came the 4 accused ran away. In her statement under Section 164 Cr.P.C. she has stated that when she was sleeping at 10.00 p.m. inside her house with her grand father the accused came and by gagging her mouth took her on the road and raped her. When the mother of the accused came he fled away. She came at her residence and disclosed the facts to her mother. If we go through the order of Principal Magistrate, Juvenile Justice Board dated 22.12.2020 the report of the Probation Officer has been discussed therein. It is also mentioned therein that on the date of incident when the mother of the juvenile did not find her son on the bed he along with two neighbors started searching for his son. Other persons of the village also woke up. Meantime the mother of the victim after hearing the noise got up and when she found her daughter to be missing from the house she went on the roof of the house to find out her daughter but the daughter was not there. When she came down she found her daughter standing there. She was shivering when she was asked about her whereabouts and the reasons of shivering then she disclosed that the present revisionist gagged her mouth with his towel (gamchcha) took her to the lonely place near the temple and tried to do some wrong with her but at the same time finding his mother and other persons coming there he left her and ran away. So far as the criminal history of the juvenile is concerned, one case pertaining to the year 2016 i.e. four years prior to this incident under Sections 323, 504 and 325 I.P.C. is said to have been pending against him. If we go through the medical report of the girl no injury has been found on the person including private part of the victim. Though it is mentioned in the report that sexual assault cannot be ruled out. Thus, on going through the report of Probation Officer and the statement of the girl both under Sections 161 and 164 Cr.P.C. and the medical report present on the record, I find it to be a fit case for bail. There is nothing on record to show that the release of the revisionist will bring him in association with some known criminal or expose him to mental, physical or psychological danger or it would defeat the ends of justice. He is in jail since 25.10.2020. 5 The judgement and orders of the lower court suffer from legal infirmity. Both the trial courts have not exercised the jurisdiction vested in them properly. In view of above, the revision is allowed. The impugned orders dated 22.12.2020 and 08.01.2021 are hereby set aside. The bail application of the revisionist is allowed. The revisionist involved in the aforesaid case be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. Order Date :- 24.03.2022 gp Digitally signed by GANESH PRAKASH Date: 2022.03.25 11:26:34 IST Reason: Location: High Court of Judicature at Allahabad