High Court
Case Details
Reserved on- 10.11.2022 Delivered on- 30.01.2023 Court No. - 85 Case :- CRIMINAL REVISION No. - 2790 of 2022
Legal Reasoning
Revisionist :- Naseem Khan Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Karunesh Narayan Tripathi Counsel for Opposite Party :- G.A.,Amit Kumar Srivastava Hon'ble Mrs. Jyotsna Sharma,J. 1. Heard Sri Karunesh Narayan Tripathi, learned counsel for the revisionist, Sri O.P. Mishra, learned A.G.A. for the State and Sri Amit Kumar Srivastava, learned counsel for the respondent no.2/juvenile. 2. Perused the record. 3. This criminal revision has been filed by the informant of the case challenging the order dated 12.04.2022 passed by the Special Judge (POCSO Act)/ Additional Sessions Judge, Bareilly in Criminal Appeal No.21 of 2022 by which the order of the Juvenile Justice Board dated 02.03.2022 declining bail to him was set-aside and the juvenile was released on bail in a matter arising out of Case Crime No.1129 of 2021, under sections 376A, 342, 354, 323, 504, 506 I.P.C. and section- 5(M)/6 of POCSO Act, Police Station- Baradari, District- Bareilly. 4. As per prosecution case, victim aged about 13 years was injected with some intoxicating substance by the minor accused when she was coming back after taking tuitions on 07.12.2021 at about 3:15 p.m. in the afternoon; she lost her senses and was carried of by the juvenile to his medical shop; the accused closed the shutter and sexually assaulted her; she remained unconscious for about three hours; the people of the locality tried to open the shutter finding it unusual to have been closed in the afternoon; the parents of the victim reached to the spot and asked the brother and mother of the juvenile to open the shutter; the shutter was opened after being pressurized by other people of the locality and the victim was found unconscious and half naked; the juvenile was also there. The F.I.R. was lodged as Case Crime No.1129 of 2021, under sections- 328, 5. 376, 342, 354, 323, 504, 506 I.P.C. and section- 5/6 POCSO Act; the accused was produced before the Juvenile Justice Board where he was declared a juvenile aged about 17 years and 4 months on the date of occurrence; the victim was medically examined same day at 9:30 p.m. within six hours of the incident; no sign of use of force was found on her person; as per her educational certificate she was aged merely 11 years on the date of occurrence; social investigation inquiry was conducted and report was submitted to the Juvenile Justice Board. The Juvenile Justice Board dismissed the bail application presented on his behalf. Thereafter, an appeal was filed on behalf of the juvenile challenging the order of the Juvenile Justice Board, which was allowed by order dated 12.04.2022 and the juvenile was released on bail. Now, the informant/revisionist is before this Court in this criminal revision filed under section 102 of the Juvenile Justice Act, 2015 challenging the grant of bail to opposite party no.2/the juvenile with a prayer to set-aside the impugned order.
Decision
6. The contention of the revisionist/informant is that the District Probation Officer, Bareilly in his report stated that mother of the juvenile had no control over him; if he is released, he will come in association with anti-social elements; the juvenile is mature enough to understand the consequences of the crime; the girl merely 11 years old was injected with some substance and she became unconscious and was then carried of and violated; in view of the above facts, the appellate court should have declined bail and it instead has passed an order in an arbitrary manner. Hence, the order of the appellate court be set-aside and that of Juvenile Justice Board be restored. 7. I went through the order of the appellate court. After noticing several aspects and facts of the matter, in the concluding para, the appellate court has held as below:- “bl izdkj leLr foospu ,oa i=koyh ij miyC/k leLr vfHkys[kksa ds ifj’khyu ls Li"V gS fd ;fn fd’kksj vipkjh dks mlds ekrk dh vfHkj{kk esa ugh fn;k x;k rks mldk‘’kkjhfjd] ekufld ,oa lqj{kk ds izfrdwy fodkl ugh gksxkA fd’kksj vipkjh dks mlds ekrk firk ds laj{k.k esa fn;s tkus ls mldk fgr lajf{kr gksxk rFkk vkxs vijk/k djus ls ml ij jksd Hkh yxsxhA vr% ekeys ds leLr rF;ksa ,oa ifjfLFkfr;ksa ds vkyksd esa izLrqr vihy U;k;fgr ,oa ekuuh; mPp U;k;ky; dh mijksDr fof/k O;oLFkkvksa ds vkyksd esa Lohdkj fd;s tkus ;ksX; gS rFkk vkifRr fuLrkfjr fd;s tkus ;ksX; gSA ” 8. Another forceful argument of the revisionist is that the order passed by the appellate court is not only arbitrary and against the established principles of law relating to bail to the juvenile but has been passed without application of mind. Before proceeding further, it shall be useful to go through the provisions 9. under Section-12(1) of the Juvenile Justice Act, 2015 as below:- 12. Bail to a person who is apprently a child alleged to be 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 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. (2) ………….; (3) ………….; (4) …………... The law enjoins upon the court to decline bail in three contingencies. In this case, the revisionist has stressed the point that this case comes within the third contingency but the appellate court did not analyse the material present before it in its correct perspective. The appellate court granted bail in a case involving daring criminal act and attempt to commit a grave offence. An unknowing girl of about 11-12 years was injected some substance and was carried of in daylight and confined to his shop. The nature of the accusations are such that it shows the courage and brazen behaviour which challenges not only law and order but also defies social norms. It is noticeable that the Juvenile Justice Board dismissed the bail application 10. on following grounds:- 2 Firstly, the nature of the crime, the manner of commission thereof was indicative of the juvenile’s criminal tendencies, mental depravation and that he was mature enough to understand the consequences of his act. Secondly, there was an unambiguous social investigation report mentioning that the juvenile was not under effective control of his parents; his father worked elsewhere and he used to stay with her mother. Thirdly, that once he is released, in all probability, he shall come in contact with his previous companions and shall fall in the same environment from which he actually needed to be protected. Fourthly, referring to the aim and object of the Juvenile Justice Act, 2015, the Juvenile Justice Board took a view that the nature of the case requires him to be kept in the observation home. 11. It may be noted that the reasons given by the Juvenile Justice Board do not find any mention in the order of the appellate court. This fact may be pointed out that appellate court is expected to not only assess the material available before it in an independent manner and to arrive at its own conclusion but also, if it decides to defer from the inferences drawn by the trial court, should give good reasons for arriving at the conclusion and also the justifications for differing from the opinion of the Board. As referred to earlier paras, the appellate court has allowed the appeal by giving some vague and queer reasonings. The appellate court had said that in case he is not released, he shall be deprived of his physical and mental growth and protection and that if he is released to his parents, he may be prevented from committing any other crime. The reasonings given are rather not understandable. 12. In my view, though a strong thread of welfare of a juvenile runs through the whole of the scheme of the Juvenile Justice Act, 2015 but the retributive approach has not been completely shunned. When the facts of the case are such that the social scientist and thinking people are expected to get alerted, the court cannot afford to be inattentive. It is vehemently argued on behalf of the respondent no.2-the juvenile that 13. the bail was granted by the appellate court in its judicial discretion and now the liberty given to him cannot be imperilled under the revisional powers exercisable under section 102 of the Juvenile Justice Act, 2015. In this context, I refer to the provisions of section 102 of the Juvenile Justice Act, 2015 whereby the High Court has been empowered to pass such order in relation to the orders passed by the Children’s Court or the Juvenile Justice Board after satisfying itself as to “legality” or “propriety” of the order under challenge. Simultaneously, it may be noted that the general law relating to bail as applicable under the provisions of Cr.P.C. do not apply either for grant or refusal of bail to a juvenile. The Juvenile Justice Act, 2015 is a comprehensive act in itself which deals with all aspects of the matters relating to “child in conflict with law”.In this context, Section 1(4) and 8(1) of the Juvenile Justice Act, 2015 may be usefully referred for giving a clearer picture. Section 1(4) of the Juvenile Justice Act, 2015 says that “(4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including – (i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law; (ii) …………..” 3 Section 8(1) of the Juvenile Justice Act, 2015 says that “ Notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, the Board constituted for any district shall have the power to deal exclusively with all the proceedings under this Act, relating to children in conflict with law, in the area of jurisdiction of such Board.” On the basis of the provisions referred to above, this legal position emerges that this Act is not only comprehensive in the sense that it is meant to deal with all the aspects of a criminal matters relating to child in conflict with law and further that the Board has the power to deal exclusively with all the proceedings arising out of criminal cases. 14. I am of the view that the order of the appellate court ought to have been reasoned. Hence, the matter is remitted back to the appellate court for deciding it afresh, after affording opportunity to both the sides. 15. The impugned order dated 12.04.2022 is set-aside to enable the appellate court to decide it afresh. However till the matter is decided by the appellate court by a reasoned and speaking order, the order impugned shall continue to remain in operation. 16. Accordingly, the revision is disposed of. 17. It is made clear that observation made herein are for the purpose of bail only. Except as provided herein above, the Board/Children Court shall proceed and decide the matter before it uninfluenced by any of the observations made in the order. 18. Copy of the order be certified to the court concerned immediately. Order Date :- 30.01.2023 Saif 4