X-Minor ...Revisionist v. State of U.P. And Another
Case Details
Neutral Citation No. - 2023:AHC:113846 Court No. 89 Reserved on 15.05.2023 Delivered on 22.05.2023 HIGH COURT OF JUDICATURE AT ALLAHABAD Criminal Revision No. 5214 of 2022 X-Minor ...Revisionist v/s State of U.P. And Another ...Opposite Parties HON’BLE SANJAY KUMAR PACHORI, J. JUDGMENT 1. Heard Vipin Dwivedi, Advocate holding brief of Sri Bipin Kumar Tripathi, learned counsel for the revisionist and Sri Saurabh Srivastava, learned A.G.A. for the State and perused the material available on record. 2. The Present Criminal Revision has been preferred by the revisionist through his mother under Section 102 of The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "JJ Act, 2015") against the judgment dated 20.09.2022 passed by Special Judge (POCSO Act), Maharajganj in Criminal Appeal No. 33 of 2022, whereby the appellate court has rejected the Criminal appeal and affirmed the order dated 28.07.2022 passed by Juvenile Justice Board, Maharajganj. The Juvenile Justice Board has rejected the bail application of the revisionist, which has been filed by his natural guardian/mother, under Section 12 of "JJ Act, 2015" arising out of Case Crime No. 79 of 2021, under Section 363, 366, 376 of the Indian Penal Code (in short "I.P.C.") and Section ¾ POCSO Act, P.S. Thoothibari, District Maharajganj. 3. Learned counsel for the revisionist submits that the revisionist is innocent and has been falsely implicated in the present case due to ulterior 2 motive. The revisionist was 13 years 06 months 30 days old at the time of the incident. As per educational certificate, the Juvenile Justice Board declared the revisionist as Juvenile vide order dated 01.07.2022 and no proceeding is pending against the aforesaid order. It is further submitted that
Facts
the first information report has been lodged on 12.07.2021. It is further submitted that statement of the victim under Section 161 Cr.P.C. was recorded on 13.07.2021. It is further submitted that statement of the victim under Section 164 Cr.P.C. was recorded on 27.07.2021. It is further submitted that there is material contradiction/improvement between he statement of the victim recorded under Section 161 and 164 Cr.P.C. Revisionist has no criminal history. The revisionist is in protective custody in an observation home since 15.05.2022. 4. It is further submitted that the finding recorded by the court below is against the social information report and is based on surmises and conjectures. It has been further submitted that there is no evidence to show that if the revisionist is released on bail, his release is likely to bring him into association with any known criminal, or expose him to moral, physical, or psychological danger, or that his release would defeat the ends of justice. No such findings were recorded as to how he will come in contact with known criminals and how he will be exposed to moral, physical, or psychological danger, or that his release would defeat the ends of justice. 5.
Legal Reasoning
"11......It is well settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understand to have a particular meaning in it, then the words are to be construed as having that particular meaning. [See: Union of India v. Garware Nylons Ltd.,
Arguments
Learned counsel for the revisionist further submits that the revisionist has no criminal antecedent to his credit except the present case and is not a previous convict nor is he associated with any kind of unsocial or criminal activities. There is no report regarding any previous criminal antecedents of the family of the revisionist. The natural guardian/mother of the revisionist has given an undertaking that if the revisionist is released on bail, she will keep him in her custody and look after him properly and has assured on behalf of the juvenile that she is ready to cooperate with the process of law and shall faithfully make the juvenile available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit. 3 6. It has been further submitted that the Juvenile Justice Board as well as the Appellate Court have not appreciated the Social Information Report of the Probation Officer in its right perspective and passed the impugned judgment and order in a cursory manner without considering the position of law and have declined bail to the revisionist. The bare perusal of the impugned orders demonstrates that the same has been passed on flimsy grounds, which have occasioned a gross miscarriage of justice. The judgment and order passed by the learned court below are illegal, contrary to law, and is based on the erroneous assumption of facts and law. 7. Per contra; learned A.G.A. for the State defended the impugned judgment and order passed by the Appellate Court as well as the Juvenile Justice Board and contended that the revisionist has committed a heinous crime. Considering the gravity of the offence, the present criminal revision is liable to be dismissed. 8. I have carefully considered the submissions made by the learned counsel for the revisionist and learned A.G.A. for the State and perused the material on record. 9. The bail application under Section 12 of "JJ Act, 2015" has been rejected by the Juvenile Justice Board vide order dated 28.07.2022 observing that there appears a reasonable ground for believing that the guardian of the juvenile has no effective control over the revisionist and there is a possibility of re-occurrence of the offence after his release. Furthermore, he has committed the heinous offence and indulged in this activity due to lack of discipline. The appellate court has also affirmed the order passed by the Juvenile Justice Board. The appellate court without considering the social information report of the Probation Officer in its right perspective as well as without returning any finding on the three exceptions declined the bail to the revisionist and rejected the appeal after observing that the parents of the juvenile are unable to keep the juvenile under control. There is a lack of availability of a consultant and if the juvenile is released on bail, he is likely to go into association with known criminals. 4 10. To examine the validity of the impugned order, it is useful to note the relevant provisions of the Act as well as the case laws relating to the subject. 11. It is a settled position of law that the use of the word 'shall' in sub- section (1) of Section 12 of "JJ Act, 2015" is of great significance. The use of the word 'shall' raises a presumption that the particular provision is imperative, but this prima facie inference may be rebutted by other considerations such as the object and scope of the enactment and the consequences flowing from such construction. The word 'shall' has been construed as ordinarily mandatory, but is sometimes not so interpreted if the context or intention otherwise demands. 12. Provisions of Section 12 of "JJ Act, 2015" manifest that ordinarily, the Juvenile Justice Board is under obligation to release the juvenile on bail with or without surety. The juvenile shall not be released in certain circumstances as the latter part of the section also uses the word 'shall' imposing certain mandatory conditions prohibiting the release of the juvenile by the Juvenile Justice Board. If there are any reasonable grounds for believing; (a) that the release is likely to bring him into association with any known criminal; (b) that release is likely to expose him to moral, physical, or psychological danger and (c) that release of the juvenile is in conflict with law and would defeat the ends of justice. 13. From a bare reading of the provisions of Section 12 of "JJ Act, 2015", it appears that the intention of the legislature is to grant bail to the juvenile irrespective of the nature or gravity of the offence alleged to have been committed by the juvenile, and bail can be declined only in such cases where there are reasonable grounds to believe that the release is likely to bring the juvenile into association of any known criminal or expose him to moral, physical, or psychological danger, or that his release would defeat the ends of justice. The gravity of the offence is not a relevant consideration for declining the bail to the juvenile. A juvenile can be denied the concession of bail if any of the three contingencies specified under Section 12(1) of "JJ Act, 2015" is available. A similar view has been taken in cases of Manoj 5 Singh v. State of Rajasthan1, Lal Chand v. State of Rajasthan2, Prakash v. State of Rajasthan3, Udaibhan Singh @ Bablu Singh v. State of Rajasthan4, Shiv Kumar @ Sadhu v. State of U.P.5, Maroof v. State of U.P.6. 14. The term 'known criminal' has not been defined in "the Juvenile Justice Act" or Rules framed thereunder. It is a well-settled rule of interpretation that in the absence of any statutory definition of any term used in any particular statute the same must be assigned meaning as in commonly understood in the context of such statute as held by Supreme Court in Appasaheb v. State of Maharashtra, (2007) 9 SCC 721 in para 11 as under: (SCC p. 726 para 11)