Vivek Tomar Vs State of U.P. and Another

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Court No. - 66

Case :- CRIMINAL REVISION No. - 4560 of 2019

Revisionist :- Vivek Tomar Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Devendra Dahma Counsel for Opposite Party :- G.A.

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Hon'ble J.J. Munir,J.

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This Revision is directed against an order of Mr. Surendra Singh, learned Special Judge, SC/ST Act, Aligarh dated 15.11.2019, dismissing Criminal Appeal no.142 of 2019 and affirming an order of the Juvenile Justice Board, Aligarh dated 16.10.2019, denying bail to the revisionist, in Case Crime no.259 of 2019 (Misc. Case no.62 of 2019), under Sections 363, 342, 376-D, 34 IPC and Section 5/6 of the POCSO Act, Police Station Sasnigate, District Aligarh.

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Notice was directed to be issued to opposite party no.2 vide order dated 03.12.2019. Service report dated 10.01.2020 has been submitted by the office, which shows that the learned Chief Judicial Magistrate, Aligarh through his report dated 02.01.2020 has caused services to be effected on the second opposite party. A perusal of the report shows that the second opposite party's husband, Prem Chandra Pathak has acknowledged service on her behalf on 24.12.2019. Service is, therefore, held sufficient on the second opposite party. No one has put in appearance on her behalf.

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Admit.

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Since the second opposite party and the State have been adequately served and granted time, this Court proceeds to hear this Revision forthwith.

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A First Information Report lodged by the second opposite party with the police on 09.06.2019 at 18 minutes past 8 o'clock in the evening shows that according to the prosecution, the informant’s daughter, the prosecutrix had left home on 07.06.2019 in the evening to attend her tuition classes at Vikram Coaching, Awas

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Vikas Colony, Agra Road. She was waylaid by Varun son of Arvind Agrawal, Shivam and Vivek (the revisionist) near the coaching class venue, where they had parked their car. They forced the prosecutrix into the car and sped away on the highway towards Delhi. It is claimed that in the moving car, co-accused, Varun ravished the prosecutrix. It is said further on in the FIR that the informant inquired from the prosecutrix the cause for her being lost and quiet. Thereupon, the prosecutrix narrated the occurrence to the first informant, who proceeded to lodge the FIR, giving rise to this crime.

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The revisionist was declared a juvenile, aged 15 years, 1 month and 1 day on the date of occurrence. He applied for bail to the Juvenile Justice Board, who rejected his bail plea. The revisionist's Appeal to the learned Sessions Judge failed before the learned Special Judge, SC/ST Act.

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Aggrieved, this Revision has been preferred, seeking reversal of the two orders impugned. 8. Heard Sri Jai Shankar Audichya, learned Counsel for the revisionist and the learned A.G.A. appearing on behalf of the State.

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It is submitted by the learned Counsel for the revisionist that the prosecution case on the merits of it is not consistent. The FIR, which has been lodged admittedly after information about the occurrence was divulged by the prosecutrix to her mother, does not allege a case of rape by the revisionist. In fact, it does not allege gang rape. The allegation of ravishing the prosecutrix in the FIR is confined to co-accused, Varun alone. In the statement, under Section 161 Cr.P.C., though the story about being forced into the car and driven away is there, the allegation is about misbehaviour ( badtamiji ) and nothing more. This statement has been recorded by a lady constable. However, in the statement, under Section 164 Cr.P.C., the prosecutrix has come up with an allegation of gang rape against the co-accused, Varun and the revisionist. It is urged that it appears that the statement, under Section 164 Cr.P.C., which has

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brought in the allegations of gang rape, involving the revisionist, is based on afterthought. It is also pointed out that in the statement made to the Doctor in confidence during her medical examination, the prosecutrix has said that she had an affair with Varun, but then she started avoiding him. On the date of occurrence, he dragged her into his car along with his friend, where Varun ravished her on the highway, while his friend drove the vehicle. In that statement also, the allegation of gang rape or the revisionist's involvement in the offence of rape is not there. It is urged that looking to the prevaricating stand of the prosecutrix regarding the revisionist's involvement, even if he were an adult, he would have been enlarged on bail.

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It is next submitted that so far as the revisionist is concerned, he is a child in conflict with law, below 16 years of age. There is nothing to show that any of the three disentitling features envisaged under the proviso to Section 12(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ‘the Act’) are discernible.

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Learned A.G.A. has opposed the Revision.

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It is no doubt true that the allegation of rape or gang rape involving the revisionist does not appear to be there at all in the FIR, which has been lodged after the prosecutrix had shared the details of the incident with her mother. It has not been mentioned in the statement of the prosecutrix, under Section 161 Cr.P.C. or to the Doctor in confidence. It has been brought in the statement, under Section 164 Cr.P.C. It is a case where the prosecution is not consistent about the allegation against the revisionist. It is also not consistent about the gang rape. The allegation against the revisionist has suddenly sprung out in the statement, under Section 164 Cr.P.C., never to be mentioned earlier. The prosecution case regarding the revisionist's involvement appears to be shaky. Indeed, if he were an adult, he could expect to be released on bail. In the case of a child in conflict with law, it is not that his application for bail in all eventuality has to be dealt with under the provisions to Section

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12(1) of the Act. In cases, where the prosecution case against a juvenile on the merits of it, would entitle an adult, similarly circumstanced, to bail, the juvenile's bail plea need not pass muster, under Section 12(1) of the Act. Section 12(1) of the Act is a facilitative provision, that comes to the juvenile's rescue, where an adult, identically circumstanced, would not be entitled to bail. It is in those circumstances that a juvenile's case may be tested on the touchstone of the three postulates envisaged under the proviso to Section 12(1) of the Act; not in cases where on merits of the case, the child in conflict with law would be entitled to bail, even if he were an adult. The present case, in the opinion of this Court, appears to be one where on merits, the revisionist would be entitled to bail, even if he were not a juvenile. That apart, testing the revisionist's case still, on the parameters of Section 12(1) of the Act, it would still be bail for him.

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A perusal of the social investigation report shows that there is nothing on record that may show that in case the revisionist were released on bail, he would come into association with known criminals, or that his release on bail would expose him to moral, physical and psychological danger. There is also nothing to show that the revisionist’s release would lead to ends of justice being defeated. A perusal of the social investigation report shows that the juvenile has a father and mother at home, besides a brother and two sisters. The elder brother and the sister appear to be pursuing studies in the University. The father is also a graduate and engaged in business to earn his livelihood. The child is also noted to have friends, who are educated and of the same age group, according to the information gathered from neighbours by the District Probation Officer. No involvement for the child in any crime in the past has been reported. There are some discordant remarks in the report, which appear to be more thoughtless than consistent with the data compiled in the report. The Courts below appear to have refused bail to the child in conflict with the law/ the revisionist overawed by the

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charge of gang rape. They have not chosen to examine as to how far the child can be inferred to be involved in that offence or what would truly be the consequences of releasing him on bail in the care and custody of his father, Raj Kumar Singh, who has sought his release on bail. In the opinion of this Court, the conclusions recorded by the two Courts below are manifestly illegal and the orders deserve to be reversed.

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In the result, this revision succeeds and is allowed . The impugned order dated 15.11.2019 passed by the Special Judge, SC/ ST Act, Aligarh in Criminal Appeal no.142 of 2019 and the order dated 16.10.2019 passed by the Juvenile Justice Board, Aligarh in Case Crime no.259 of 2019 (Misc. Case no.62 of 2019), under Sections 363, 342, 376-D, 34 IPC and Section 5/6 of the POCSO Act, Police Station Sasnigate, District Aligarh, are hereby set aside and reversed. The bail application of the revisionist stands allowed.

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Let the revisionist, Vivek Tomar , through his natural guardian/ father, Raj Kumar Singh, be released on bail in Case Crime no.259 of 2019, under Sections 363, 342, 376-D, 34 IPC and Section 5/6 of the POCSO Act, Police Station Sasnigate, District Aligarh, upon his father furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Aligarh, subject to the following conditions:

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(i) that the natural guardian/ father, Raj Kumar Singh will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the mother will ensure that the juvenile will not repeat the offence.

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(ii) The revisionist and his father, Raj Kumar Singh will report to the District Probation Officer on the second Monday of every calendar month commencing with the second Monday of October, 2020 and if

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during any calendar month the second Monday falls on a holiday, then on the following working day.

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(iii) The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Aligarh on such periodical basis as the Juvenile Justice Board may determine.

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(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

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(v) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

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(vi) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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Order Date :- 23.9.2020 Anoop/ Nadeem

Vivek Tomar v. State of U.P. and Another

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