Criminal Appeal No. 34 of 2022 · High Court · 2022

Heard learned counsel for the revisionist, learned Additional Government Advocate representing the State of U.P. and Shri Raj Kumar Mishra, learned counsel appearing on behalf of opposite party No. 2. The present criminal revision under Section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 has been preferred against the judgment and order dated 16.5.2022 passed by Juvenile Court/ Additional Sessions Judge (Rape and POCSO Act), Ghaziabad in Criminal Appeal No. 34 of 2022, and against order dated 08.3.2022 passed by Juvenile Justice Board, Ghaziabad in Case Crime No. 558 of 2020, under sections 302, 120B IPC, police station Loni, District Ghaziabad whereby the learned Juvenile Justice Board as well as learned appellate court refused the prayer of bail of accused-revisionist. As per the prosecution case, informant/ Ghanshyam Das lodged FIR on 16.7.2020 for the o;ence under Section 302 IPC against two unknown persons alleging inter alia that while his nephew was sitting on his shop, two unknown person came there, out of whom one was sitting on the bike while another person entered the shop and =red at his nephew. It is argued by learned counsel for the revisionist that the revisionist is not named in the FIR and his name along with co-accused Vineet came into light in the second statement of the informant, wherein he has stated that =re was shot by the present revisionist and Vineet. It is pointed out that before the trial court, four prosecution witnesses of fact have been examined and all of them have been declared hostile, which clearly indicate that revisionist has been falsely implicated in this case. Learned counsel for the revisionist assailing the impugned orders submits that the revisionist was a juvenile on the date of the alleged incident dated 16.7.2020 and he has been declared juvenile vide order dated 10.9.2020 of Juvenile Justice Board treating the age of revisionist as 17 years, 04 months and 27 days on the date of alleged incident. It is also not disputed that the revisionist has remained con=ned in juvenile home since 20.7.2020. As to the o;ence alleged, it is submitted that the revisionist has falsely been implicated in the case with ulterior motive. In this regard, it is further stated that proper investigation was not conducted by the police and thus the revisionist had wrongly been charged with the o;ence. It has been submitted that the Social Investigation Report =led in this case also does not raise any speci=c or strong objection for the release of the revisionist and only general and unfounded objections and observations have been made therein. It has further been emphasized that the revisionist does not have any criminal antecedent to his credit. Lastly, it is submitted that there is no material on record for believing that the release of revisionist is likely to bring him into association of any known criminal or expose him to moral, psychological aforesaid impugned orders are not sustainable and liable to be set aside and revisionist is entitled to be released on bail in view of Section 12 of Juvenile Justice (Care and Protection of Child) Act, 2015. therefore, danger, Learned Additional Government Advocate as well as learned counsel for the complainant vehemently opposed the present revision. It has, thus been submitted that merely because the revisionist is a juvenile it would not entitle him to bail without considering the gravity of the o;ence and the nature of the crime. It is further contended that presence of the revisionist has been established at the place of occurrence by the D.V.R footage and C.D has also been prepared. It is also contended that the bail sought for has been rightly refused in view of Section 12(1) of Juvenile Justice (Care and Protection of Child) Act, 2015. Having considered the arguments so advanced by learned counsel for the parties, it is seen that while it is true that as of right, a juvenile o;ender is not entitled to be enlarged on bail, irrespective of any other fact or circumstance, however, it also cannot be denied that in view of speci=c and special legislative intent and intervention, refusal of bail in the case of a juvenile may be made only for speci=c reasons and circumstance. Otherwise, a general legislative presumption does appear to exist under the scheme of the Act that the welfare of alleged juvenile o;ender would be better served without his being con=ned for long duration. Here, the revisionist has remained in juvenile home since 20.7.2020. The Court has to see whether the opinion of the learned appellate Court as well as Juvenile Justice Board recorded in the impugned judgment and orders are in consonance with the provision of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 12 of the aforesaid Act lays down three contingencies in which bail could be refused to juvenile. They are:- (1) if the release is likely to bring him into association with any known criminal, or (2) expose him to moral, physical or psychological danger, or (3) that his release would defeat the ends of justice. Gravity of the o;ence has not been mentioned as a ground for rejection of bail in Section 12 of the aforesaid Act. Though the prayer for bail of the revisionist has been opposed by learned counsel for opposite parties, but could not demonstrate from the record that there existed any of the grounds on which bail application of a juvenile could be rejected keeping in view the provisions of Section 12 of the Juvenile Justice Act. Considering the above, it appears that the =ndings recorded by the learned Court below are erroneous and cannot be sustained. The aforesaid impugned orders dated 16.5.2022 and 08.3.2022 are hereby set aside. Accordingly, the present criminal revision is allowed. Let the revisionist X, involved in the aforesaid case crime be released on bail on furnishing a personal bond of his father namely Virendra Singh, who is his natural guardian with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The revisionist shall not tamper with the evidence or extend threat to the witnesses; (ii) The revisionist through his guardian shall =le an undertaking to the e;ect that he shall not seek any adjournment on the date =xed 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; (iii) The revisionist through guardian shall remain present before the trial Court on each date =xed, either personally or through his counsel. In case of his absence, without suDcient cause, the trial Court may proceed against him under Section 229- A of the Indian Penal Code. Order Date :- 30.9.2022 Ishrat ISHRAT Reason: Location: High Court of Judicature at Allahabad