Allowed

Juvenile 'X' through His Father v. State of Up and Anr.

Allahabad HC8 Feb 2022CRLR/1849/2020

Case brief

AI extract

What is this about?

This criminal revision challenged the rejection of bail for a juvenile accused of rape. The High Court held that bail under the Juvenile Justice Act must be granted unless specific exceptions are proven. Finding no reasonable grounds existed under Section 12, the Court set aside lower orders, granted bail to the juvenile, and directed the concealment of the juvenile's identity. A restraint order w

What did the court decide?

The criminal revision was allowed. The impugned orders dated 11.12.2019 and 15.5.2020 were set aside. Bail was granted to the juvenile subject to conditions, and the juvenile's identity in the record

Juvenile 'X' through His Father Vs State of Up and Anr. — Bail and Remand | Allahabad HC (2022)

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Reserved on: 24.12.2021 Delivered on: 08.02.2022

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Court No. 80

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Case:CRIMINAL REVISION No. 1849 of 2020

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Revisionist: Juvenile 'X' through his father Opposite Party: State of U.P. and Another Counsel for Revisionist:Ramesh Chandra Yadav, Rajesh Kumar Singh, Ram Krishna Mishra. Counsel for Opposite Party:Government Advocate, S. R. Yadav.

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J U D G M E N T

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Hon'ble Sanjay Kumar Pachori, J.

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1 . Heard Sri Rajesh Kumar Singh, learned counsel for the revisionist, Sri K. K. Singh, Advocate holding brief of Sri S. R. Yadav and Sri Jai Prakash Tripathi learned A.G.A for the State.

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2 . The Present Criminal Revision has been preferred 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 15.5.2020 passed by Additional Sessions Judge/ Special Judge POCSO Act, Azamgarh, in Criminal Appeal No. 01 of 2020, whereby the appellate court has rejected the Criminal appeal and affirmed the order dated 11.12.2019 passed by Juvenile Justice Board, Azamgarh. The Juvenile Justice Board has rejected the bail application of the revisionist, which has been filed by his natural guardian/father, under Section 12 of "JJ Act, 2015", in Case Crime No. 71 of 2019 under Section 376 of the Indian Penal Code (in short "I.P.C."), and Section 3/4 The Prevention of Children from Sexual Offences Act (in short "POCSO") Act, Police Station- Gambhirpur, District- Azamgarh.

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3 . Being aggrieved of the judgment and order dated 15.5.2020 and 11.12.2019 passed by the Appellate Court as well as the Juvenile Justice Board, the revisionist through his father has preferred the

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instant criminal revision before this Court.

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4 . Learned counsel for the revisionist submitted that the revisionist was 16 years 9 months 16 days old at the time of the incident. The Juvenile Justice Board has declared the revisionist as juvenile vide order dated 6.11.2019 and no proceeding is pending against the order. It has been further submitted that the revisionist has been falsely implicated in the present case. Investigating Officer filed charge sheet on 28.6.2019 after completing the investigation.

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5 . It is further submitted that there is material inconsistency with regard to the presence of the wife of the first informant near the place of the incident. As per FIR the victim went with her elder sister (another victim) had gone to attend the call of nature but the first informant has stated that his daughters (both victims) had gone to attend the call of nature with their mother, at the time of the incident his wife was sitting some distance from the place of the incident. He next contended that the FIR has been lodged within 24 hours, medical examination of the victim has been conducted on 4.4.2019, within 72 hours of the incident, no spermatozoa was found in pathological report and as per her ossification report, the age of the victim was about 18 years old.

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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 in case the revisionist is released on bail, then 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 finding was 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. The revisionist is in protective custody in an observation home since 08.04.2019.

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7 . Learned counsel for the revisionist further submits that the

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revisionist has no criminal antecedent to his credit except the present case and is not a previous convict nor is 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/father of the revisionist has given an undertaking that if the revisionist is released on bail, he will keep him in his custody and look after him properly and assure on behalf of the juvenile that he 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 to impose upon him.

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8 . 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.

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Per contra; learned A.G.A. as well as learned counsel for the first informant 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.

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10. I have carefully considered the submissions made by the learned counsel for the revisionist, learned counsel for the first informant and learned A.G.A. for the State and perused the material on record.

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11. The learned Juvenile Justice Board declared the revisionist as juvenile vide order dated 6.11.2019 after conducting an inquiry on the

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basis of a High School certificate of the revisionist wherein his date of birth is 15.6.2002 and held that he was 16 years 9 months 16 days old at the time of the incident.

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12. The bail application under Section 12 of "JJ Act, 2015" has been rejected by the Juvenile Justice Board vide order dated 11.12.2019 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 the 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 bring into association with any known criminals.

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13. 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.

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14. Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015 reads as under:

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" 12. Bail to a person who is apparently a child alleged to be in conflict with law.(1) When any person, who is apparently a child and is alleged to have committed a bailable or nonbailable 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 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 sub-section (1) by the officer-in-charge 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 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 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 fulfill 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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(emphasis added)

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15. 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 it is sometimes not so interpreted if the context or intention otherwise demands.

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16. 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 so released in certain circumstances as the latter part of the section also

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uses the word 'shall' imposing certain mandatory conditions prohibiting the release of the juvenile by the Juvenile Justice Board. If there appears to be 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 juvenile is in conflict of law would defeat the ends of justice.

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17. 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)

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"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., (1996) 10 SCC 413: AIR 1996 SC 3509 and Chemical and Fibers of India v. Union of India, (1997) 2 SCC 664: AIR 1997 SC 558]..."

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18. 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 an 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 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

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available. A similar view has been taken in cases of Manoj Singh v. State of Rajasthan, 2004 (2) RCC 995, Lal Chand v. State of Rajasthan, 2006 (1) RCC 167, Prakash v. State of Rajasthan, 2006 (2) RCR (Cri.) 530, Udaibhan Singh @ Bablu Singh v. State of Rajasthan, 2005 (4) Crimes 649, Shiv Kumar @ Sadhu v. State of U.P., 2010 (68) ACC 616 (LB), Maroof v. State of U.P., [2015 (6) ADJ 203].

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19. In Nand Kishore (in JC) v. State (2006) 4 RCR (Cri.) 754, Delhi High Court, while considering the first condition of proviso of Section 12 of Juvenile Justice Act, observed that "as regards the first exception, before it can be invoked to deny bail to a juvenile there must be a reasonable ground for believing that his release is likely to bring him into association with any known criminal. The expression known criminal is not without significance when the liberty of a juvenile is sought to be curtailed by employing the exception, the exception must be construed strictly. Therefore, before this exception is invoked, the prosecution must identify the 'known criminal', and then the court must have reasonable grounds to believe that the juvenile if released would associate with this 'known criminal'. It cannot be generally observed that the release of the juvenile would bring him into association with criminals without identifying the criminals and without returning a prima facie finding with regard to the nexus between the juvenile and such criminal..."

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20. Similar view has been taken in Manmohan Singh v. State of Punjab, PLR (2004) 136 P & H 497 wherein, it was observed as under:

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"7....The reasonable grounds for believing that his release is likely to bring 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, should be based upon some material/evidence available on the record. It is not a matter of subjective satisfaction but while declining bail to the juvenile on the said ground, there must be objective assessment of the reasonable grounds that the release of the juvenile is likely to bring him in association with any known criminal or expose him to moral, physical or psychological danger or that

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his release would defeat the ends of justice...

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8. In Sanjay Kumar's case (supra) it has been held by the Allahabad High Court that every juvenile whatever offence he is charged with, shall be released on bail but he may, however, be refused bail if there appears reasonable ground for believing that the release is likely to bring him into association with the any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice and that the existence of such ground should not be mere guess work of court but it should be substantiated by some evidence on record."

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21. Section 26 of the IPC defines the expression "Reason to believe" means a person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise. In view of Section 26 of I.P.C., if there is sufficient cause to believe, reason to believe exists. The expression "reason to believe" excludes a mere suspicion. The word 'believe' is very much a stronger word than 'suspect'.

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22. The Constitution Bench of Apex court in Gurbaksh Singh Sibia v. State of Punjab , (1980) 2 SCC 565, while interpreting the expression "reason to believe" observed as under: (SCC p. 589 para 35)

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"35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The application must show that he has "reason to believe" that he may be arrested for a non bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief or which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested....."

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23. The Supreme Court again in the case of Union of India v. Shiv Shankar Kesari, (2007) 7 SCC 798, interpreted the expression "reasonable ground to believe" as under: (SCC p. 801, 802 paras 7, 8, 9 and 10)

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"7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.

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8. The word "reasonable" has in law the prima faice meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of word "reasonable".

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7. ...In Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy."

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[See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar¹ , and Gujarat Water Supply and Severage Board v. Unique Erectors (Gujarat) (P) Ltd.²

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9. "9. ...It is often said that 'an attempt to give a specific meaning to the word "reasonable" is trying to count what is not number and measure what is not space.' The author of Words and Phrases (Permanent Edn.) has quoted from Nice & Schreiber, In re³ to give a plausible meaning for the said word. He says

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'the expression "reasonable" is a relative term, and

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(1987) 4 SCC 497 at page 504 para 7

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(1989) 1 SCC 532

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123 F 987 at p. 988

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the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined'

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It is not meant to be expedient or convenient but certainly something more than that"

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10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd.⁴ )

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24. Section 13(1)(ii) of "JJ Act, 2015" provides that the Probation Officer shall submit a social investigation report within two weeks from when a child is apprehended or brought, to the Board containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making the inquiry. The "social investigation report" which has been defined in Rule 2(xvii) of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, means the report of a child containing detailed information pertaining to the circumstances of the child, the situation of the child on economic, social, psycho-social and other relevant factors, and the recommendation thereon. This report becomes important for the inquiry to be done by the Board while passing such orders in relation to such a child as it deems fit under Sections 17 and 18 of this Act. The purpose behind this provision is to enable the Juvenile Justice Board to get a glimpse of the social circumstances of the child before any order regarding bail or of any other nature is passed.

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25. 'Form-6' of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, contains a detailed proforma of the social investigation report. The report has three parts; the first part requires the Probation Officer to give the data or information regarding the close relatives in the family, delinquency records of the family, social and economic status, ethical code of the family, attitude towards 4. (2003) 6 SCC 315

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religion, the relationship amongst the family members, the relationship with the parents, living conditions, etc. Thereafter, the report requires the Probation Officer to provide the child's history regarding his mental condition, physical condition, habits, interests, personality traits, neighbourhood, neighbours' report, and school, employment, if any, friends, the child being subject to any form of abuse, circumstances of apprehension of the child, mental condition of the child. The most important part of the report is the third part i.e. the result of inquiry where the Probation Officer is required to inform the Board about the emotional factors, physical condition, intelligence, social and economic factors, suggestive cause of the problems, analysis of the case including reasons/contributing factors for the offence, opinion of experts consulted and recommendation regarding rehabilitation by the Probation Officer/Child Welfare Officer. It is incumbent upon the Juvenile Justice Board to take into consideration the social investigation report and make an objective assessment on the reasonable grounds for rejecting the bail application of the juvenile.

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26. Section 3 of "JJ Act, 2015" provides that the Central Government, the State Government, the Board, and other agencies, as the case may be, while implementing the provisions of the Act, shall be guided by the fundamental principles of care and protection of children. Some of the principles are as under:

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(i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala-fide or criminal intent up to the age of eighteen years.

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(ii) Principle of dignity and worth: All human being shall be treated with equal dignity and rights.

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(iii) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.

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(iv) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.

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(v) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the process pertaining to a child.

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(vi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and through out the judicial process.

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27. After noticing the position of law, now I revert back to the facts of the present case. The Social Information Report (SIR), demonstrates that the revisionist has passed Class XIIth and has two elder brother having ages of 29 years and 25 years and one elder sister of 21 years who is a student of M.A. first year; one elder brother is deaf and dumb; another elder brother of the revisionist is graduate and is working in a private company and earns Rs. 16,000/- P.M. The parents of the revisionist are illiterate and his father is a farmer and mother is a housewife; relations among the family members are cordial; parents of the juvenile have no criminal antecedent. The SIR further noted that the discipline in the house of the juvenile is moderate and character and behaviour of the revisionist is good as per the information received by the village Pradhan and other neighbours.

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28. First Information Report dated 2.4.2019 has been lodged by the father of the victim stating that on 1.4.2019 at 9:00 P.M. his daughters, ('A') age 17 years and ('B') 15 years went for call for nature behind his house, in a field of Arhar, the revisionist and other co-accused were already present there, the revisionist has committed rape with 'B' and other co-accused committed rape with another daughter 'A', they told the first informant about the incident, when he reached the spot, Motor cycle of the revisionist was parked.

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29. In view of the above foregoing discussion, I am not satisfied with the reasoning and conclusion arrived by the Appellate Court as well as the Juvenile Justice Board in the impugned judgment and order. The Juvenile Justice Board as well as the Appellate Court have not properly appreciated the mandatory provisions of Section 12 of "JJ Act, 2015" as well as other provisions in relation to juvenile 'X' and have declined to grant bail merely on the basis of unfounded

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apprehension. In the absence of any material or evidence of reasonable grounds, it cannot be said that his release would defeat the ends of justice and have failed to give reasons on three contingencies for declining the bail to the revisionist. The findings recorded by the Juvenile Justice Board as well as the Appellate Court are based on the heinousness of the offence, therefore, the order dated 11.12.2019 passed by the Juvenile Justice Board and judgment dated 15.5.2020 passed by the Appellate Court are not sustainable. Hence, are set aside and the present criminal revision is allowed.

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30. Let the revisionist be released on bail through his natural guardian/father, who is in observation home since 8.4.2019 in Case Crime No. 71 of 2019 under Sections 376 of I.P.C., and Section 3/4 POCSO Act, Police Station- Gambhirpur, District- Azamgarh after furnishing a personal bond on his father (Ramu Saroj) with two sureties of his relatives each in the like amount to the satisfaction of Juvenile Justice Board, Azamgarh, subject to the following conditions:

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(i) Natural guardian/father will furnish an undertaking that upon release on bail the revisionist will not be permitted to go 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) Natural guardian/father will further furnish an undertaking to the effect that the juvenile will pursue his study at the appropriate level which he would be encouraged to do besides other constructive activities and not be allowed to waste his time in unproductive and excessive recreational pursuits.

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(iii) Juvenile and natural guardian/father will report to the Probation Officer on the first Monday of every calendar month commencing with the fourth Monday of February 2022, and if during any calendar month the first Monday falls on a holiday, then on the following working day.

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

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31. Before parting with the judgment, it is necessary to point out that the identity of the juvenile in the present matter has been disclosed in the impugned judgment and order which violates the right to privacy and confidentiality of the juvenile and against the law laid down by the Supreme Court in Shilpa Mittal v. NCT Delhi, (2020) 2 SCC 787 wherein, it was held that the identity of the juvenile shall not be disclosed.

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32. The present revision has been filed by the revisionist through his natural guardian/father. The memo of parties discloses the name of the juvenile. The Registry is directed to conceal the names of the juvenile from the cause list as well as the record of this case so that the names and identities are not disclosed as directed by the Supreme Court in Shilpa Mittal (supra).

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Dated: 8.2.2022 Ishan

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(Hon'ble Sanjay Kumar Pachori, J.)

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Digitally signed by ISHAN JAISWAL Date: 2022.02.09 15:28:19 IST Reason: Location: High Court of Judicature at Allahabad

Juvenile 'X' through His Father v. State of Up and Anr.

Case brief

What is this about?

What did the court decide?

Juvenile 'X' through His Father v. State of Up and Anr.

Case brief

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What did the court decide?

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