Allowed

Sachin Yadav (Juvenile) v. State of U.P. and Another

Allahabad HC22 May 2019CRLA/3312/2019

Case brief

AI extract

What is this about?

The High Court allowed a bail appeal by a juvenile accused transferred for adult trial. It held that denial of bail based merely on heinousness violates Section 12 of the Juvenile Justice Act, viewing the impugned order as perverse due to contradictions in the victim's statement and lack of adverse police reports.

What did the court decide?

Impugned order rejected and the juvenile released on bail to his father on personal bond and two sureties.

Sachin Yadav (Juvenile) Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2019)

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A.F.R.

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Court No. - 80 Case :- CRIMINAL APPEAL No. - 3312 of 2019 Appellant :- Sachin Yadav (Juvenile) Respondent :- State Of U.P. And Another Counsel for Appellant :- Arjun Singh Solanki Counsel for Respondent :- G.A.,Anoop Kumar Mishra

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Hon'ble Pradeep Kumar Srivastava,J.

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Heard Sri Arjun Singh Solanki, learned counsel for the appellant, Sri Anoop Kumar Mishra, learned counsel for the complainant, Sri Ram Adhar Ram, learned A.G.A. and perused the record.

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This criminal appeal has been preferred against the impugned judgment and order dated 08.04.2019, passed by Special Judge (P.O.C.S.O. Act)/Additional Sessions Judge-8, Etah, in Criminal Misc. Bail Application No. 825 of 2019, arising out of Case Crime No. 142 of 2018, under Sections 363, 366, 376, 342, 506 I.P.C. and Section 3/4 P.O.C.S.O. Act, Police Station Marhara, District Etah, whereby the bail application of the juvenile Sachin Yadav has been rejected.

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The appellant has challenged the impugned order submitting that he is juvenile and the impugned order passed by the court below is against the law and evidence available on record.

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Learned counsel for the accused-appellant has submitted that the victim was knowing the juvenile-appellant prior to the incident. On the alleged day of incident, the victim left her house in the early morning at about 04:00 A.M. with her scooty and when the informant woke up in the morning, he found that the victim with her scooty was missing from the house. The statement of the victim is also contradictory that on the one hand she has stated that she was knowing them prior to the incident and on the other hand she has stated that when the

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accused persons were talking to each other, she knew their names, which shows that there is false implication on the basis of false story. The victim was caught alone by the police from the bus stand and she was not recovered from the possession of the juvenile or other two co-accused persons. There is another contradiction in the statements of the victim recorded under Section 161 Cr.P.C. vis-a-vis statement recorded under Section 164 Cr.P.C., where on one hand she has alleged gang rape by all the accused persons but subsequently, she has stated that only the present appellant who is juvenile had committed rape and other two accused did not sexually abused her. Learned counsel for the accused-appellant has further submitted that the whole story is an after thought and does not suit to any reason. Therefore, the impugned order rejecting the bail application of the juvenile-accused-appellant is liable to be set aside and the juvenile is entitled to be released and handed over to his father namely Sanjay Yadav. The accused-appellant has been in juvenile home since 25.09.2018 and his age has been determined below 18 years and above 16 years by Juvenile Justice Board, Etah, vide its order dated 16.03.2019. From perusal of the said order, it is clear that the Board while referring the case of the present appellant to the children court has referred that on the date of incident i.e. 04.07.2018, the age of the juvenile was determined to be 16 years, 11 months and 03 days and finding the juvenile to be physically and intellectually capable to understand the consequences of the act, the Juvenile Justice Board has transferred the case of juvenile under Section 18(3) of the Juvenile Justice Act to the Children Court for his trial as adult.

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Learned A.G.A. as well as the learned counsel appearing on behalf of complainant have vehemently opposed and has contended that the learned trial court has rightly rejected the

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bail application of the accused-appellant and there is sufficient evidence against the present accused-appellant.

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Provision has been made under Section 12 of the Act that when any person accused of a bailable or a non-bailable offence and apparently a juvenile, is arrested or detained or is brought before a board then irrespective of the accusation he shall be released on bail or placed under the supervision of a probation officer or under the care of any fit institution or fit institution except when :-

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if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminals or

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that it will expose him to moral, physical or psychological danger, or

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that his release would defeat the ends of justice.

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It has been held by the supreme court in Dr. Subramaniam Swamy vs Raju, 2014 (86) ACC 637 that a juvenile has to be released on bail unless the court has a reasonable ground to believe that his release will bring him into association of some known criminal, or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice.

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Section 15 of the Amending Act only provides for transfer of a juvenile to the Children Court for trial as an adult. Where the child has attained the age of 16 years and has been alleged to have committed heinous offence, the JJ Board is required to conduct a preliminary inquiry with regard to his mental and physical capacity to commit offence, ability to understand the consequence of the offence and the circumstances in which the offence was committed considering their physical,

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psychological and mental status in commission of crime. Section 18(3) of the Act provides that after making the assessment under section 15, JJ Board comes to a conclusion that there is a need for trial of the child as an adult, the Board may pass an order for the transfer of the trial of the case to the Children Court.

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It is pertinent to mention here that Section 12 of the Juvenile Justice (Care and Protection of Children) Act has not been amended so far as the parameters and yardstick for granting bail to the juvenile-accused is concerned. Therefore, while rejecting the bail application of such juvenile, it cannot be the criteria that the alleged offence is of serious and heinous nature. The order must show that the grant of bail to the juvenile-accused is against his interest as there is possibility of his being associated with known criminals, or there is some short of moral, physical or psychological danger to him or there is likelihood of end of justice being defeated. All these conditions have been incorporated in law in order to ensure justice to the juvenile.

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Considering the aforesaid facts and circumstances, it is clear that the age of the victim at the time of incident was between 17 to 18 years, whereas the juvenile was almost equal in age with the victim. It is also clear that the victim must have been knowing the three culprits which is clear from her statement recorded under Section 161 Cr.P.C. in which she has specifically taken the names of all the three accused persons. There is one more circumstance which is in favour of the juvenile as it is admitted in the first information report that when the father of the victim woke up at about 04:00 A.M. in the morning, he found the victim missing from the house with her scooty. Needless to mention that it was an unusual time and it is not expected that in a young age of around 18 years,

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without informing her parents any girl will go out of her house on scooty. On one hand the victim has alleged to have been gang raped by all the three accused persons but subsequently she has changed her stand and has given clean chit to other two accused persons, which also comes in favour of the juvenile. On the basis of the first information report version, it appears that the victim got acquainted with the juvenile a few days ago and it was believed by the informant that the juvenile has taken her away. It is also clear from the medical report of the victim that no injury has been found on her body or on her private part and that shows that it was not a case of violent rape. The victim has not been recovered from the juvenile or his associates. She was found alone on the bus stand. The impugned order has been passed on the basis of seriousness and heinousness of offence which is not a relevant consideration under Section 12 of the Act. There is no adverse report against the juvenile submitted by the Probation Officer. As such, I find perversity and illegality in the impugned order, therefore, the same is liable to be set aside.

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The appeal is allowed . The impugned order dated 08.04.2019, passed by Special Judge (P.O.C.S.O. Act)/Additional Sessions Judge-8, Etah, in Criminal Misc. Bail Application No. 825 of 2019, arising out of Case Crime No. 142 of 2018, under Sections 363, 366, 376, 342, 506 I.P.C. and Section 3/4 P.O.C.S.O. Act, Police Station Marhara, District Etah, is set aside.

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The juvenile, accused-appellant namely Sachin Yadav be released on bail and he be given in the custody of the father guardian namely Sanjay Yadav on his filing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with undertaking that the guardian father

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namely Sanjay Yadav shall keep the juvenile away from unsocial and criminal association and will look after his education and health, keeping his mental and social status. She will also give an undertaking that on being so released on bail, the accused-appellant namely juvenile Sachin Yadav will not however indulge in commission of any crime and she will ensure his presence during trial before the court whenever so required by court.

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Office is directed to transmit the certified copy of this order along with lower court record, if already received, to the court concerned for information and its necessary compliance.

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Order Date :- 22.5.2019 sailesh

Sachin Yadav (Juvenile) v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Sachin Yadav (Juvenile) v. State of U.P. and Another

Case brief

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What did the court decide?

What the court decided

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