Banti Vs State of U.P. and Another

Court No. - 93

Case :- CRIMINAL REVISION No. - 88 of 2020

Revisionist :- Banti Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Syed Mohd. Khalid Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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Rejoinder affidavit filed today is taken on record.

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This revision is directed against the judgment and order dated 14.11.2019 passed by Special Judge (POCSO Act)/ Additional Session Judge, Court No.9 Bareilly dismissing Juvenile Criminal Appeal No. 195 of 2019 (Banti vs. State of U.P.) filed under Section 101 of the Juvenile Justice (Care and protection of Children) Act, 2015 (for short 'the Act') and affirming an order of Juvenile Justice Board, Bareilly dated 14.08.2019 refusing the bail plea to the revisionist in case crime no.163 of 2019 under Section 452, 376, 311 IPC and Section ¾ POCSO Act, P.S. Bithari Chainpur, District Bareilly.

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Heard Sri Syed Mohd. Khalid, learned counsel for the revisionist, learned A.G.A. for the State and perused the record.

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The prosecution case, as per the version of the FIR is that on 25.05.2019 the opposite party no.2 was on duty at R.K. Nursing Home and her mother namely Kamla Saxena was also went to purchase medicine as such her minor mentally disorder daughter Anjali Saxena aged about 13 years was alone in home and in the evening revisionist come with his nephew Karan to the house of the opposite party no.2 and instructed Karan to stand outside the house and thereafter he entered into her house and tried to commit rape with her daughter Anjali Saxena and on the alarm of her nephew the, revisionist Banti and co-accused Karan run away from the spot.

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Learned counsel for the revisionist submits that during course of investigation the statement of victim Anjali Saxena under Sections 161 and 164 Cr.P.C. was recorded in which she has repeated the same version of the FIR and also made some contradictory statement.

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Learned counsel for the revisionist further submits that the revisionist is juvenile and there is no apprehension of reasoned ground for believing that the release of the revisionist is likely to bring him in association with any known criminals or expose him to mental, physical or psychological danger or his release would defeat the ends of justice. He further submits that except this the revisionist has no previous criminal history. The father of the revisionist is giving his undertaking that after release of the revisionist on bail, he will keep him under his custody and look after him properly. Further, the revisionist undertakes that he will not tamper the evidence and he will always cooperate the trial proceedings. There was no report regarding any previous antecedents of family or background of the revisionist. There is no chance of revisionist’s re-indulgence to bring him into association with known criminals.

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Learned counsel for the revisionist further submits that it is not in dispute that the revisionist is a juvenile as he already been declared juvenile by Juvenile Justice Board, Bareilly vide order dated 23.07.2019. The revisionist was a juvenile aged 15 years, 10 months and 10 days on the date of occurrence. He was, thus, clearly below 16 years of age. He is in jail since 26.05.2019 in connection with the present crime and has completed more than half of the sentence out of the maximum three years institutional incarceration permissible for a juvenile, under Section 18(1)(g) of the Act.

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Learned counsel for the revisionist further submits that thereafter the revisionist applied for bail before the Juvenile Justice Board, Bareilly upon which a report from the District Probation Officer was called for. The bail application was rejected vide order dated 14.08.2019, being aggrieved, the revisionist preferred an appeal under Section 101 of the Act, which was also dismissed vide order dated 14.11.2019. Hence the present criminal revision has been filed before this Hon’ble Court mainly on the following amongst other grounds:

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(i) That the orders passed by the learned both the courts below are suffers from manifest error in law and based on conjectures and surmises.

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(ii) That the learned courts below while rejecting the bail of revisionist ignored this fact that the revisionist is living under the guardianship of his father and other family member as such after releasing on bail, the revisionist can not misuse his bail but illegally rejected the bail of revisionist.

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(iii) That both the courts below have not considered the provision of Section 12 (1) Juvenile Justice Act 2000 and illegally rejected the bail of revisionist however Section 12 (1) provides that the Juvenile be released on bail with or without security, there is no impression that Juvenile can go into the associates of criminal even due to under guardian of his parents, who have no criminal history, the revisionist can not go in the association of any miscreants.

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(iv) That the learned courts below while rejecting the bail of revisionist ignored the report of Probation Officer, who has specifically stated in his reports that there is no criminal history and after releasing on bail he cannot go into the association of criminals, but arbitrarily and illegally rejected the bail of revisionist.

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(v) That the learned courts below while rejecting the bail of revisionist ignored this fact that there is no any criminal history and he cannot go in the globes of any miscreant after releasing on bail.

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(vi) That the learned courts below on the basis of presumption rejected the bail of revisionist even though there was no any evidence against revisionist.

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Several other submissions in order to demonstrate the falsity of the allegations made against the revisionist have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the revisionist that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that in the wake of heavy

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pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

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Learned counsel for the revisionist has pointed out that the revisionist has by now done more than half of institutional incarceration. The maximum period for which a juvenile can be incarcerated in whatever form of detention, is three years, going by the provisions of Section 18(1)(g) of the Act. In support of his contention, learned counsel for the revisionist has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

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"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

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Learned counsel for the revisionist has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

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"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of

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the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

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Learned A.G.A., has filed counter affidavit and has opposed the revisionist's case with the submission that the release of the revisionist on bail would bring him into association of some known criminals, besides, exposing him to moral, physical and psychological danger. It is submitted that his release would defeat the ends of justice, considering that he is involved in a heinous offence.

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Learned counsel for the revisionist thereafter filed the rejoinder affidavit today which is taken on record and has denied the averments made in the counter affidavit and reiterated the grounds taken in the revision.

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In spite of service of notice opposite party no.2 has not filed any counter affidavit in this case. It appears that he is not interested.

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This Court has carefully considered the rival submissions of the parties and perused the impugned orders. The juvenile is clearly below 16 years of age and does not fall into that special category of a juvenile between the age of 16 and 18 years whose case may be viewed differently, in case, they are found to be of a mature mind and persons well understanding the consequences of their actions. The provisions relating to bail for a juvenile are carried in Section 12 of the Act, which reads as under:

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"(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 (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 person:

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Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with

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any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

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(2) When such person having been apprehended is not released on bail under subsection (1) by the officer-incharge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.

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

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(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail."

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A perusal of the said provision show that bail for a juvenile, particularly, one who is under the age of 16 years, is a matter of course and it is only in the event that his case falls under one or the other disentitling categories mentioned in the proviso to subSection (1) of Section 12 of the Act that bail may be refused. The merits of the case against a juvenile acquire some relevance under the last clause of the proviso to sub-section (1) of Section 12 that speaks about the ends of justice being defeated. The other two disentitling categories are quite independent and have to be evaluated with reference to the circumstances of the juvenile. Those circumstances are to be gathered from the Social Investigation Report, the police report and in whatever other manner relevant facts enter the record.

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What is of prime importance in this case is that the juvenile, who is a young boy, less than the age of 16 years, has no criminal history. There is nothing said against the juvenile, appearing from the Social Investigation Report that may show him to be a desperado or misfit in the society. The two courts below have held the juvenile disentitled to bail on account of his case falling under each of the three exceptions enumerated in the proviso to sub section (1) of Section 12, for which no reason has been indicated. That finding, in both the orders impugned, is

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based on an ipse dixit, in one case of the judge and in the other of the Board. Even if it be assumed that the offence was committed in the manner alleged, it would be rather strained logic to hold that release of the juvenile on bail would lead to the ends of justice being defeated. Both the courts below have also overlooked the statement of the victim recorded under Section 161 and 164 Cr.P.C.

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This Court in the case of Shiv Kumar alias Sadhu Vs. State of U.P. 2010 (68) ACC 616(LB) was pleased to observe that the gravity of the offence is not relevant consideration for refusing grant of bail to the juvenile.

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After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and in view of the larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh vs. State of UP and another, (2018) 3 SCC 22 and the view taken by the Apex Court in the cases of Kamal Vs. State of Haryana (supra), Takht Singh Vs. State of Madhya Pradesh (supra) and Shiv Kumar alias Sadhu Vs. State of U.P. (supra)., this Court is of the view that the present criminal revision may be allowed and the revisionist may be released on bail.

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In the result, this revision succeeds and is allowed. The impugned judgment and order dated 14.11.2019 passed by Special Judge (POCSO Act)/ Additional Session Judge, Court No.9 Bareilly dismissing Juvenile Criminal Appeal No. 195 of 2019 (Banti vs. State of U.P.) and the order dated 14.08.2019 passed by Juvenile Justice Board, Bareilly in case crime no.163 of 2019 under Sections 452, 376, 311 IPC and Section ¾ POCSO Act, P.S. Bithari Chainpur, District Bareilly, are hereby set aside and reversed . The bail application of the revisionist stands allowed.

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Let the revisionist, Banti through his natural guardian/ father Chhote Lal be released on bail in Case Crime No.163 of 2019, under Sections 452, 376, 311 IPC and Section ¾ POCSO Act, P.S. Bithari Chainpur, District Bareilly 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, Bareilly subject to the following conditions:

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(i) That the natural guardian/ father, Chhote Lal 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 father will ensure that the juvenile will not repeat the offence.

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(ii) The revisionist and his father, Chhote Lal will report to the District Probation Officer on the first Wednesday of every calendar month commencing with the first Wednesday of December, 2020 and if during any calendar month the first Wednesday falls on a holiday, then on the next 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, Bareilly 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 or the certified copy issued by the Registry of the 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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However, considering the peculiar facts and circumstances of the case, the court below is directed to make every possible endeavour to conclude the trial of the aforesaid case within a period of four months from today without granting unnecessary adjournments to either of the parties.

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Order Date :- 28.9.2020 C. MANI

Banti v. State of U.P. and Another

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