No. - 90 Case :- CRIMINAL REVISION No. - 3202 of 2017 & Anr. v. State of U.P.) arising out of Case Crime No. 05 of 2017 & Anr.

State of U.P. and another) arising out of Case Crime No. 05 of 2017 under sections 376D I.P.C. and 5G/6 POCSO Act, Police Station Kotwali Padrauna, District Kushinagar and the order dated 21.06.2017 passed by the Principal Magistrate, Juvenile Justice Board, Kushinagar. By the order dated 21.06.2017 the Principal Magistrate, Juvenile Justice Board, Kushinagar rejected the bail application of the revisionist and by the order dated 21.07.2017 the appeal of the revisionist was dismissed by the District & Sessions Judge, Kushinagar. As per facts of the case, Case Crime No. 05 of 2017 was registered against the present revisionist and one co-accused on 03.01.2017 with the allegation that on 02.01.2017 at 4.00 p.m. the present revisionist along with co-accused committed rape on ten years' old minor daughter of the first informant. Vide order dated 02.06.2017 of the Additional Sessions Judge, Court No. 2, Kushinagar the revisionist was declared as juvenile. After hearing the rival arguments and perusal of the record including 2 the report of police station and District Probation Officer concerned the bail application of the revisionist was rejected by the Principal Magistrate, Juvenile Justice Board, Kushinagar on 21.06.2017 and the appeal against this order was also rejected vide order dated 21.07.2017. Present revision has been preferred against both these orders on the ground that the courts below did not consider the arguments of the revisionist and without applying their judicious mind his bail application has been wrongly dismissed. He has no criminal antecedent to his credit. As per medical report, final opinion was reserved till the F.S.L. Report is received and no F.S.L. Report has been submitted by the Investigating Officer till date. The medical report do not support the version of the alleged victim. Hence, both the impugned orders on the very face of the record are liable to be set aside and the prayer to allow the revision and the set aside both the orders is made. Learned A.G.A. on the other hand has opposed the bail application and argued that the charge sheet has been filed in the case. The impugned orders have been passed on the basis of the report of District Probation Officer and the facts and evidence on record which corroborate the version of the first information report. As per medical report three injuries have been found on the private part of the victim. If the revisionist is released on bail then there is likelihood that he will come in the company of known criminals and the purpose of justice will be defeated thereby. Despite sufficient service no one appeared on behalf of the opposite party no. 2. If we go through Section 12 of the Juvenile Justice (Care and Protection of Children) Act, which reads as under:- "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 3 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 fulfill 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." According to this Section, the bail of a juvenile can only be rejected if there appears reasonable ground 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. In Cr. Misc. Writ Petition No. 345 of 2011, Virendra Vs. State of U.P. decided on 30.4.2014, the coordinate bench of this court has opined that the bail can also be refused on the ground that the release would defeat the ends of justice. The ends of justice has been interpreted by the court in different manners. No universal formula can be laid down but justice to society as a whole had to be borne in mind while interpreting ends of justice. The Apex Court has also held in the judgment of Om Prakash Vs. State of Rajasthan (2012) 5 SCC 201 that "Hence while the courts must be sensitive in dealing with juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor. Statutory protection of the juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who use the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him, otherwise, would amount to subverting the courses of justice." 4 If we go through the record of the present case, as per medical report the doctor has detected an abrasion present on inner aspect of labia minora on left side from 3 O'clock to 6 O'clock position redness infratusion present and a tear 3 m.m.x1 m.m. Present at 6 O'clock position from which blood was coming. The age of the revisionist was 16 years two months and 24 days on the date of incident while the victim was found to be 08 years of age at the time of incident. As per report of Probation Officer the revisionist had gone in the search of livelihood to Patna six months prior to the incident and had came back one month prior to the incident. The revisionist due to financial crisis and lack of interest could not study beyond Class-9. He is said to disobey the liability imposed upon him by his parents and it is also found that in absence of the control of parents upon the revisionist if the revisionist is released on bail there is likelihood to bring him into association with any known criminal or expose him to mental, physical or psychological danger. Thus, there is nothing on record to show that if the juvenile is released on bail he will not come in association with any known criminal or he will not be exposed to mental, physical or psychological danger, as the child accused is certainly meant to be treated with care and sensitivity offering chance to reform and settle into main stream of the society but at the same time the statutory protection of juvenile justice act is meant for minors who are innocent law breakers and not accused of matured mind who use the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him. In my opinion, on the combined perusal of the report of Probation Officer, medical report of the victim and other evidence on record if the juvenile is released on bail it would defeat the ends of justice. Hence, the revision lacks merit and is liable to be dismissed. The revision is dismissed and the bail to the revisionist is denied. Order Date :- 24.03.2022 PRAKASH Reason: Location: High Court of Judicature at Allahabad