High Court
Case Details
Court No. - 91 Case :- CRIMINAL REVISION No. - 1037 of 2022
Legal Reasoning
Revisionist :- Mr. X Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Sarvjeet Kumar,Ram Mani Upadhyay Counsel for Opposite Party :- G.A.,Akhilesh Kumar Mishra Hon'ble Mrs. Jyotsna Sharma,J. 1. Heard Sri Ram Mani Upadhyay, learned counsel for the revisionist and learned A.G.A. for the State. None appears on behalf of the respondent no.2 when the matter is called out for hearing. 2. Perused the record. 3. This criminal revision has been filed with a prayer to set- aside the order dated 06.01.2022 passed by the Juvenile Justice Board, Basti and with a further prayer to set-aside the order dated 16.02.2022 passed by the Additional Sessions Judge/Special Judge (POCSO Act), Basti in Criminal Appeal No.7 of 2022 by which the order of the Juvenile Justice Board was affirmed and bail to the juvenile was declined in a criminal case arising out of Case Crime No.233 of 2021, under sections 323, 354B I.P.C. and section 7/8 POCSO Act, Police Station- Lalganj, District- Basti. 4. As per allegation in F.I.R., the juvenile taking advantage of the fact that victim was alone in her house, entered her house and assaulted her sexually on 22.10.2021 at about 5:00 p.m.; the F.I.R. was lodged after 8 days of the incident on 30.10.2021. 5. It is contended on behalf of the revisionist that initially an F.I.R. under sections 323, 354B I.P.C. and section 7/8 POCSO Act, that too, after a delay of at least 8 days was lodged against the juvenile with the allegation that finding the informant's daughter alone, the juvenile entered in her house and over- powered her and assaulted her sexually; however, though in the beginning, the informant and the victim (her daughter) gave a statement in consonance with the facts, which are narrated in the F.I.R.; however, further after a gap of about 25 days, when the statement under section 164 Cr.P.C. was recorded before the Magistrate, she not only improved her earlier version but also added certain facts with ulterior motive just to make the matter graver and bringing the matter under section 376 I.P.C. and section 3/4 POCSO Act. It is contended that a graver version of the matter was given by the victim for ulterior motive as an afterthought, which cannot be relied. It is submitted that the juvenile was found to be of the age of 14 years, 3 months and 21 days on the date of incident while the victim as per her own statement was of 17 years and as per medical examination was of 18 years. It is submitted that in these circumstances, there has not been any possibility of juvenile assaulting the victim in such a manner and that he has been falsely implicated in this case. It is also said that the juvenile is lodged in Child Care Institution since 23.11.2021, i.e., about 10 months have elapsed since his detention and that the impugned orders have been passed on the basis of report of District Probation Officer only and that there has been nothing else for declining him bail. 6. Learned A.G.A. for the State has opposed this criminal revision. 7. I have perused the matter; this fact is not disputed that initially the informant as well as the victim in their statements under section 161 Cr.P.C. did not allege such kind of sexual assault as to bring it within the provisions of section 376 I.P.C. and section 3/4 POCSO Act. However, subsequently, in the statement recorded under section 164 Cr.P.C., another dimension to the earlier statements was added bringing the matter within the graver section. The time gap and the variance between the two statements attracts attention of the Court to have a look on the case with a critical eye. As far as the medical is concerned, the victim refused to go through medical examination; no medical examination was performed on the mother of the victim, who was allegedly beaten after the episode. Hence, in absence of medical report, it cannot be said that the mother of the victim, i.e., informant was so badly injured that she was not in a position to lodge the F.I.R. promptly. The juvenile is detained in the observation home for more than 10 months; he has no criminal antecedents or criminal history. It appears that the Juvenile Justice Board and the appellate court have placed much reliance on the report of the District Probation Officer for rejecting the bail. I am of the view that there has not been any real material before the courts below to arrive at a conclusion that in case of his release, he shall be exposed to physical, moral and psychological danger and that his release shall defeat the ends of justice.
Decision
8. In view of the above, the revision is allowed and the orders dated 16.02.2022 passed by Additional Sessions Judge/Special Judge (POCSO Act), Basti and dated 06.01.2022 passed by Juvenile Justice Board, Basti are hereby set-aside. 9. Let the revisionist, Minor "X", through his natural guardian/father- Lal Mohan, R/o Village- Kamhariya, Police Station- Lalganj, District- Basti be released on bail in Case Crime No.233 of 2021, under sections 323, 354B I.P.C. and section 7/8 POCSO Act, Police Station- Lalganj, District- Basti upon his father furnishing a personal bond with two solvent sureties of his relatives, each in the like amount to the satisfaction of the court concerned subject to the following conditions: (i) that the natural guardian/father- Lal Mohan 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 mother will ensure that the juvenile will not indulge in any criminal activity; (ii) The revisionist shall not tamper with the evidence or threaten the witnesses; (iii) The revisionist through guardian shall also file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court; Order Date :- 29.9.2022 Saif Digitally signed by SHAIKH SAIF ABDIN Date: 2022.09.30 15:10:35 IST Reason: Location: High Court of Judicature at Allahabad