Dismissed

Raju (Minor) v. State of U.P. and Another

Allahabad HC17 Sept 2020CRLR/1139/2019

Case brief

AI extract

What is this about?

The Court addressed a criminal revision against an order denying bail to a juvenile revisionist accused of child sexual offences and assault on a four-year-old. It held that bail under the Juvenile Justice Act can be denied if the release would defeat the ends of justice, considering the gravity of the offence and its impact on society.

What did the court decide?

The criminal revision was dismissed; the juvenile is to remain in custody pending trial.

Raju (Minor) Vs State of U.P. and Another — Child Sexual Offences (POCSO) | Allahabad HC (2020)

Court No. - 66

Reserved A.F.R.

Case :- CRIMINAL REVISION No. - 1139 of 2019

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Revisionist :- Raju (Minor) Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Akash Mishra Counsel for Opposite Party :- G.A.

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Hon'ble J.J. Munir,J.

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This Criminal Revision, under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is directed against an order of the learned Second Additional Sessions Judge/ Special Judge, SC/ST (PA) Act, Etawah, dated 30.01.2019, dismissing Criminal Appeal no.1 of 2019, preferred by the revisionist and affirming an order dated 20.12.2018 passed by the Juvenile Justice Board, Etawah, refusing the revisionist's bail plea in Case Crime no.201 of 2018, under Sections 376, 2(1) IPC, Section 3/4 of the POCSO Act and Section 3(2)(V) of the SC/ST (PA) Act, Police Station Bakewar, District Etawah.

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Heard Mr. Akash Mishra, learned counsel for the revisionist and the learned AGA appearing on behalf of the State. The name of Mr. Ram Nath, Advocate appears for opposite party no.2 and is shown in the cause list. When the matter was called on, no one has appeared on behalf of the second opposite party.

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A First Information Report was lodged by the second opposite party with Police Station Bakewar, District Etawah giving rise to the present crime on 09.03.2018 at 49 minutes past 3 p.m., carrying allegations to the effect that she is a native of Ram Nagar Adda, Mauja Karaudhi, Police Station Bakewar, District Etawah and a member of the Dohre caste. On 09.03.2018 at about 12 noon while she was conventionally plastering the interiors of her home with clay, her four year old daughter strayed into the field playing along. She was accompanied by other small children. At that time, another native of the village, Raju son of Sughar Singh (the revisionist) took away her minor daughter to a mustard field. The other children

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informed the complainant that her daughter had been taken away by Raju. The complainant rushed to the mustard field raising alarm. It is alleged in the FIR that the complainant saw the revisionist ravish her daughter. The complainant/ opposite party no.2 has said in the first information that she attempted to apprehend the revisionist, but he escaped her clutches and took to his heals. Other natives of the village also arrived and that with the assistance of those others, she has come over to report the matter to the police. In her statement, under Section 164 Cr.P.C., the young prosecutrix has supported the prosecution.

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The Juvenile Justice Board by their order dated 12.12.2018 refused bail to the revisionist, pending trial. On Appeal, that order has been affirmed by the learned Special Judge, SC/ST (PA) Act, Etawah by the order impugned.

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Aggrieved, this Revision has been preferred.

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Mr. Akash Mishra, learned Counsel for the revisionist has apparently a very difficult task to persuade this Court that it is a case where the revisionist ought to be released on bail, pending trial. This Court does not have the slightest hesitation to place on record its appreciation for the most remarkable manner in which Mr. Mishra has discharged his difficult brief. His submission is short but formidable in the circumstances. He candidly acknowledges the fact that the prosecutrix is a child of four years, who has spoken inculpatory against the revisionist in her statement, under Section 164 Cr.P.C. before the Magistrate. He submits, however, that circumstances to place his case in that exception to Section 12(1) of the Act, where release on bail of the child in conflict with law would defeat the ends of justice, is not at all discernible here. He points out that the statement of the young prosecutrix is so unnatural that it is hard to believe that she could have ever made it. He has taken this Court through the statement of the prosecutrix made before the Magistrate. This Court on a perusal of the same, read in isolation, would be inclined to agree with Mr. Mishra that the statement is most

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unnatural. This Court is, indeed, surprised how a child that young could have come out with the kind of graphic description, that makes for the prosecutrix's statement, under Section 164 Cr.P.C. in this case. Read in isolation as said earlier, it would certainly suggest a different authorship than one that can be attributed to the young prosecutrix's mind. But, that is not the end of the matter.

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Here, the FIR has been lodged by the prosecutrix's mother, who has said in a rather prompt account of the occurrence that she saw the revisionist ravish the child. What is more disconcerting here is the fact that the medico-legal examination report records fresh injuries, indicative of recent forceful penetration suffered by the child. There is no alternative explanation about that kind of an injury. Assuming that someone put words in the young prosecutrix's mouth while the Magistrate recorded her statement under Section 164 Cr.P.C., the fact that her mother claims to be an eye witness to the act in a prompt FIR and the injuries sustained by the child, as young as four years, do not leave much scope prima facie for the revisionist to say that he is not the one to be blamed.

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This Court is mindful of the fact, as pointed out by the learned Counsel for the revisionist, that in a bail plea under the Act, Section 12(1) engrafts a rule for bail to every juvenile, irrespective of his prima facie involvement in the crime. It is only in the event, where the juvenile’s case prima facie showing his complicity, falls into one or the other disentitling categories, postulated under Section 12(1) of the Act, that bail may be denied to a child in conflict with law. Section 12 of the Act is quoted in extenso :

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“ 12. Bail of juvenile .—(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is 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 Probation Officer or under the care of any fit institution or fit person but he shall not be so

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released if there appear reasonable grounds for believing that the 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.

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(2) When such person having been arrested is not released on bail under sub-section (1) by the officer in charge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.

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(3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order.”

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This Court is of opinion that it is not a case where releasing the revisionist on bail would bring him into association with any known criminal or would expose him to moral, physical or psychological danger. The moot question is, whether ordering his release on bail would bring his case within the teeth of the third exception, which says that it would lead to ends of justice being defeated. Learned Counsel for the revisionist at this stage has again made a very relevant point, where he says that the revisionist was aged 14 years and 3 months on the relevant date, that is to say, the date of occurrence. He was clearly below the age of 16, where different standards apply under the amended provisions of the Act. This Court is of opinion that the third postulate under Section 12(1) of the Act, where bail may be denied to a juvenile, somewhere touches upon the merits of the case in the totality of circumstances that must receive consideration. A heinous crime, where the juvenile’s involvement is apparent prima facie , would certainly work as a set back to the society’s conscience, if the juvenile were permitted to go free on bail.

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I had occasion to consider this issue in Mangesh Rajbhar vs. State of U.P. and another, 2018(2) ACR 1941 , where it was held:

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“24. This court from what appears on a furter ( sic further) reading of the judgment in Raja (minor) (supra) did not construe the last of the three grounds for the refusal of bail to a juvenile in the proviso to Section 12(1) of the Act ejusdem generis; rather, this court in that case referred to the merits of the case and related the ground for denying bail to the juvenile being released on bail “would defeat the ends of justice” with the merits of the prosecution case. In other words, this Court found in the expression “defeat the ends of justice” a repose for the society to defend itself from the onslaught of a minor in conflict with law by certainly making relevant though not decisive, the inherent character of the offence committed by the minor. In this connection paragraph nos. 11, 12 and 13 of the judgment in Raja (minor) (supra) may be gainfully quoted.

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“ 11. The report of the medical examination of the victim clearly shows that the revisionist had forced himself upon the victim, who was seven years old child and in the statements under sections 161 Cr.P.C. and 164 Cr.P.C., the child had clearly deposed about how she was taken away by the revisionist and later on caught on the spot by the public and he pretended to be taking a bath. In the orders impugned, there is specific mention about the fact that the revisionist was accused by name by the victim, who was studying in class II and the release on bail of the revisionist would defeat the ends of justice.

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12. Having gone through the record of the case including statement under section 161 Cr.P.C. and the statement under section 164 Cr.P.C. given by the victim and also the report of the medical examination of the victim, which shows penetration by force and resultant injury, I am of the opinion that there is no legal infirmity in the orders impugned as the release on bail of the revisionist would indeed defeat the ends of justice.

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13. No doubt, the Juvenile Justice Act is a beneficial legislation intended for reform of the juvenile/child in conflict with the law, but the law also demands that justice should be done not only to the accused, but also to the accuser. ”

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It is not that this aspect of the gravity of the offence has been considered irrelevant to the issue of grant or refusal of bail to a minor in the past and before the present Act of 2015 came into force. In a decision of this Court under the Juvenile Justice Act, 2000 where the interest of the society were placed seemingly not on a level of playing field with the juvenile, this Court in construing the provisions of Section 12 in that Act that were pari materia to Section 12 of the Act in the matter of grant of bail to a minor held in the case of Monu @ Moni @ Rahul @ Rohit v. State of U.P., 2011 (74) ACC

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353 in paragraph Nos. 14 and 15 of the report as under:

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“14. Aforesaid section no where ordains that bail to a juvenile is a must in all cases as it can be denied for the reasons"......if there appears reasonable grounds for believing that the 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."

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15. In the light of above statutory provision bail prayer of the juvenile revisionist has to be considered on the surrounding facts and circumstances. Merely by declaration of being a juvenile does not entitle a juvenile in conflict with law to be released on bail as a matter of right. The Act has a solemn purpose to achieve betterment of juvenile offenders but it is not a shelter home for those juvenile offenders who have got criminal proclivities and a criminal psychology. It has a reformative approach but does not completely shun retributive theory. Legislature has preserved larger interest of society even in cases of bail to a juvenile. The Act seeks to achieve moral physical and psychological betterment of juvenile offender and therefore if, it is found that the ends of justice will be defeated or that goal desired by the legislature can be achieved by detaining a juvenile offender in a juvenile home, bail can be denied to him. This is perceptible from phraseology of section 12 itself. Legislature in its wisdom has therefore carved out exceptions to the rule of bail to a juvenile.”

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The Hon'ble Supreme Court in the case of Om Prakash vs. State of Rajasthan and another, (2012) 5 SCC 201: 2012 (2) ACR 1825 (SC) has brought in due concern in matters relating to juveniles where the offences are heinous like rape, murder, gang-rape and the like etc., and, has indicated that in such matters, the nature and gravity of the offence would be relevant; the minor cannot get away by shielding himself behind veil of minority. It has been held in Om Prakash (supra) by their Lordships thus:

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“3. Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of children/juvenile by the juvenile court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a juvenile court

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or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held.

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23. …... Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him.”

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It seems thus that the suggestion of the learned counsel for the revisionist that bail to a juvenile or more properly called a child in conflict with law can be denied under the last ground of the proviso to Section 12 ejusdem generis with the first two and not with reference to the gravity of the offence, does not appear to be tenable. The gravity of the offence is certainly relevant though not decisive. It is this relevance amongst other factors where gravity of the offence committed works and serves as a guide to grant or refuse bail in conjunction with other relevant factors to refuse bail on the last ground mentioned in the proviso to Section 12 (1) of the Act, that is to say, on ground that release would “defeat the ends of justice”.

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Under the Act, as it now stands there is further guidance much more than what was available under the Act, 2000 carried in the provisions of Section 15 and 18 above extracted and the definition of certain terms used in those sections. A reading of Section 18 of the Act shows that the case of a child below the age of 16 years, who has committed a heinous crime as defined in the Act is made a class apart from cases of petty offence or the serious offence committed by a child in conflict with the law/juvenile of any age, and, it is further provided that various orders that may be made by the Board as spelt out under clause (g) of Section 15 depending on nature of the offences, specifically the need for supervision or intervention based on circumstances as brought out in the social investigation report and past conduct of the child. Though orders under Section 18 are concerned with final orders to be made while dealing with the case of a juvenile, the same certainly can serve as a guide to the exercise of power to grant bail to a juvenile under Section 12(1) of the Act which is to be exercised by the Board in the first instance.

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Read in the context of the fine classification of juveniles based on age vis-a-vis the nature of the offence committed by them and reference to a specifically needed supervision or intervention, the circumstances brought out in the social investigation report and past conduct of the child which the Board may take into consideration, while passing final orders under Section 18 of the Act it is, in the opinion of this court, a good guide for the Board while exercising powers to grant bail to go by the same principles though embodied in Section 18 of the Act, when dealing with a case under the last part of the proviso to Section 12 (1) that authorizes the Board to deny bail on ground that release of the juvenile would “defeat the ends of justice.”

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Thus, it is no ultimate rule that a juvenile below the age of 16 years has to be granted bail and can be denied the privilege only on the first two of the grounds mentioned in the proviso, that is to say, likelihood of the juvenile on release being likely to be brought in association with any known criminal or in consequence of being released exposure of the juvenile to moral, physical or psychological danger. It can be equally refused on the ground that releasing a juvenile, that includes a juvenile below 16 years would “defeat the ends of justice.” In the opinion of this Court the words “defeat the ends of justice” employed in the proviso to Section 12 of the Act postulate as one of the relevant consideration, the nature and gravity of the offence though not the only consideration in applying the aforesaid part of the disentitling legislative edict. Other factors such as the specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child would also be relevant that are spoken of under Section 18 of the Act.

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In this context Section 12 and 18 and also Section15 (Section 15 not relevant in the case of a child below 16 years) and other relevant provisions all of which find place in Chapter IV of the Act are part of an integrated scheme. The power to grant bail to a juvenile under Section 12(1) cannot be exercised divorced from the other provisions or as the learned counsel for the revisionist argues on the other specific disentitling provisions in the grounds mentioned in the proviso to Section 12(1) of the Act. The submission made based on the rule of ejusdem generis urged by the learned counsel for the revisionist is misplaced, in the opinion of this Court.”

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In the facts of the present case, this Court does not wish to say that merits of the prosecution prima facie are decisive to judge the revisionist's plea for bail. However, it is not altogether irrelevant under Section 12(1) of the Act. The gravity of the offence, the prima

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facie connection of the minor with the offence and its impact on the society must enter judgment while considering a bail plea advanced on behalf of a child in conflict with the law. Here, as said earlier, notwithstanding the fact that the revisionist is below 15 years, the offence has been committed prima facie with determination, exhibition of maturity and the understanding of its consequences. The child in conflict with law is a boy above 14 years, whereas the victim is a four year old girl. The mother claims to be an eye witness and the medico-legal evidence does prima facie strongly support the prosecution. Other natives of the village are claimed to have seen the occurrence. Thus evaluated in its totality, the circumstances here are such that if the revisionist were to be released on bail, it would be revolting to the society's conscience.

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These remarks or those elsewhere made may not be ever so slightly construed as expressions of opinion on merits of the charge. It is for the Juvenile Justice Board, holding trial, to determine independently irrespective of anything said here, what is proved by evidence led on behalf of the prosecution. It would always be the prosecution’s burden to establish the charges beyond reasonable doubt. What has been said here is in the context of the bail plea, and nothing more.

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In the result, this revision fails and is dismissed . The Juvenile Justice Board, Etawah, considering the period of detention, shall conclude the trial by the 31^st of December, 2020.

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Let a copy of this order be communicated to the Juvenile Justice Board, Etawah through the learned Sessions Judge, Etawah by the Joint Registrar (Compliance).

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Order Date :- 17.9.2020 Anoop

Raju (Minor) v. State of U.P. and Another

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What is this about?

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Raju (Minor) v. State of U.P. and Another

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