Allowed

Shiva Shukla Thru. His Elder Brother Shudhanshu Shukla v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

Allahabad HC2 Aug 2023/1267/2022

Case brief

AI extract

What is this about?

The High Court allowed the revision petition challenging the rejection of bail for a juvenile accused. The court held that the gravity of the offence alone cannot negate statutory protection under the Juvenile Justice Act, 2015. Setting aside the lower courts' order for lack of concrete grounds showing danger to the minor.

What did the court decide?

The impugned orders rejecting bail were set aside, and the release of the revisionist on bail with a personal bond and undertaking by the guardian was granted.

Shiva Shukla Thru. His Elder Brother Shudhanshu Shukla Vs… — Bail and Remand | Allahabad HC (2023)

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[Reserved]

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Neutral Citation No. - 2023:AHC-LKO:51298

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Court No. - 29

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Case :- CRIMINAL REVISION No. - 1267 of 2022

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Revisionist :- Shiva Shukla Thru. His Elder Brother Shudhanshu Shukla

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Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 3 Others

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Counsel for Revisionist :- Dharmendra Kumar Misra Counsel for Opposite Party :- G.A.,Pradyumn Shukla

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Hon'ble Mrs. Renu Agarwal,J.

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Present revision under Section 102 of the Juvenile Justice (Care and Protection of Children), Act, 2015 has been preferred against the judgment and order dated 14.10.2022 passed by learned Additional District & Sessions Judge/Special Judge, POCSO Act, Unnao in Criminal Appeal No. 50 of 2022 (Shiv Shukla Vs. State of U.P.), arising out of Case Crime No. 114 of 2022, rejecting the appeal and confirming the order of Juvenile Justice Board, Unnao dated 13.06.2022 by which the Board has rejected the bail application No. 36 of 2022 of revisionist under Sections 377, 506 IPC, Section 3/4 POCSO Act and Section 3(2)(5) of SC/ST Act, Police Station-Purwa, District-Unnao.

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Learned counsel for the revisionist submitted that the revisionist has been declared juvenile by the Juvenile Justice Board, Unnao vide order dated 30.05.2022. Learned Juvenile Justice Board and learned Additional Additional District & Sessions Judge/Special Judge, POCSO Act, Unnao have refused the bail of the revisionist without considering the provisions of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and no plausible and valid reasons have been given for refusing the bail of revisionist. It is further contended that FIR was lodged with a considerate delay which has not been explained. There is no opinion about any unnatural sex by doctor and the age of the victim is found to be 9 years 11 months and 20 days. The statementd of victim recorded under Section 161 and 164 Cr.P.C.

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are contrary and same are not corroborated with prosecution version. There is no material on record to establish that after the release of the revisionist, the revisionist would join the company of the criminals, hence it is prayed to set aside the impugned orders.

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Per contra, learned AGA for the State opposed the revision and submitted that there is medical report which leads to show that “redness around the anal area is found”. Victim himself is aged about 9 years 11 months and 20 days and if the revisionist is released on bail, there is strong probability that he will come in contact with known criminals. There is danger to the moral, physical or psychological health of the child in conflict with law. It is further submitted that if he is released on bail, he may be subjected to resentment from the family of victim, therefore, it is prayed that revision is liable to be rejected.

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I have heard the rival submissions advanced on behalf of learned counsel for the parties and perused the entire record.

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According to the contents of the FIR, minor children of complainant was taken away by the accused and he committed sexual harassment to her son on the point of knife. It is also mentioned that the offence was committed by the present revisionist by putting the life of victim and his mother in danger.

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Learned appellate court rejected the application of bail of the revisionist on the ground that victim and revisionist both are juvenile and as per the medical report of victim, there was redness around the anal area. It has also been mentioned in the order of appellate court that Juvenile Justice Board rightly rejected the bail application in the light of report of Data Protection Officer (DPO). Learned appellate court relied upon the judgment dated 30.04.2014 passed by this Court in the case of Virendra Vs. State of U.P., Criminal Appeal No. 354 of 2011, wherein it is held by the Apex Court that court should be more sensitive in dealing with the juvenile cases of serious in nature like sexual molestation with murder etc.

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Juvenile Justice Board rejected the bail of the revisionist on the ground that if the revisionist-accused is released on bail, his mental, physical and moral character shall be affected and there is strong probability that he will come in the contact with known criminals and he may also be subjected to confrontation with the family members of the victim. The appellate court confirmed the order of Juvenile Justice Board on the same count.

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Report of D.P.O. reveals that the father of the revisionist is unemployed and stays at home while his brother is involved in business of purchasing Dhaan. It is also mentioned in report of D.P.O. that there is some dispute between the family of revisionist and the victim. The revisionist is a student of class-XI. There is nothing on record to suggest that revisionist is in contact with known criminals or he may come in contact with known criminals after his release. The family of victim is also involved in a small business, therefore there is no evidence on record to show that revisionist may be subjected to any kind of confrontation.

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The submission of learned counsel for the revisionist is that it is not in dispute that the revisionist is a juvenile and is entitled to the benefits of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. It has been submitted that under Section 12 of the Juvenile Justice Act, prayer for bail of a juvenile can be rejected 'if there appears reasonable grounds for believing that the release of the juvenile is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger of that his release would defeat the ends of justice'.

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This Court has to see whether the opinion of the appellate Court as well as Juvenile Justice Board recorded in the impugned orders are in consonance with the provision of Section 12 of the Juvenile Justice (Care and Protection of Children) Act 2015. Section 12 of the Act lays down three contingencies in which bail could be refused to juvenile, which are as follows:

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(1) if the release is likely to bring him into association with any known criminal, or

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(2) expose him to moral, physical or psychological danger, or

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(3) that his release would defeat the ends of justice?

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Admittedly, gravity of the offence has not been mentioned as a ground for rejection of bail under Section 12 of the Act.

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It has further been submitted that gravity of the offence could not be relevant for refusing grant of bail to the juvenile, as has been held by this Court in Shiv Kumar alias Sadhu Vs. State of U.P. [2010 (68) ACC 616] and it has been a consistent view of various courts. It has also been submitted that there exists no material to justify rejection of bail on the grounds envisaged by Section 12 of the Act. There is nothing on record to show that the revisionist is exposed to any moral, physical or psychological danger.

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In para 33 of the judgment rendered in the case of Om Prakash Vs. State of Rajasthan and another [(2012) 5 SCC 201], Hon'ble Apex Court has held that:

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“statutory protection of the Juvenile Justice Act is meant for minors who are innocent law-breakers and not accused of matured mind who use the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him, otherwise would amount to subverting the course of justice”.

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……………...the Court observed that this would clearly be treated as an effort to weaken the justice dispensation system.”

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Learned trial court as well as appellate court quoted the case law Virendra Vs. State of U.P. in Criminal Revision No. 345 of 2011 but did not discuss as to how the case law will apply in this case. In case of Virendra , the accused/juvenile is in conflict with law committed rape with murder and that was found heinous in nature. The fact of this case altogether are different with the case of Virendra (supa).

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Learned trial court as well as appellate court did no discuss the case law of Virendra (supra) in the light of the factual matrix of this case. In this case, the DPO report discloses that the appellant has no criminal antecedents. The father of the revisionist is an unemployed person. There was a civil dispute between the family of revisionist and the victim. The revisionist is a student of Class

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The DPO report does not disclose any type of danger to the revisionist, if he is released on bail. There is nothing on record to suggest that the revisionist has any contact with known criminals. However, if he is kept in the observation home, there is strong probability of his mental and physiological danger.

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Learned trial court rejected the bail application of the present revisionist without looking into the facts that there is nothing on record or in the DPO report that if the accused-revisionist is released on bail, he may be exposed to the known criminals or there is any challenge to his mental, physical or physiological health. Hence, the order of trial court dated 13.06.2022 is perverse and based on assumptions and presumptions without having any concrete ground of rejection of bail. Hence, the order of first appellate court dated 14.10.2022 passed in criminal appeal no. 50 of 2022, confirming the the order dated 13.06.2022 passed by Juvenile Justice Board, Unnao in Case Crime No. 114 of 2022, under Sections 377, 506 IPC and Section 3/4 of POCSO Act and Section 3(2)5 of SC/ST Act, is liable to be set aside.

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In view of the above, this revision is allowed. The impugned order dated 13.06.2022 passed by learned Juvenile Justice Board, Unnao in Case Crime No.114 of 2022 under Sections 377, 506 IPC, Section ¾ of POCSO Act and Section 3(2)(5) of SC/ST Act, Police Station-Purwa, District-Unnao as well as order dated 14.10.2022 passed by learned Additional District and Sessions Judge/Special Judge (POCSO Act), Unnao in Criminal Appeal No. 50 of 2022 are hereby set aside .

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Let the revisionist be released on bail in Criminal Appeal No. 50 of 2022 arising out of Case Crime No.114 of 2022, under Section 377, 506 I.P.C., Section 3/4 POCSO Act and Section 3(2)(5) of SC/ST Act, Police Station Purwa, District Unnao, on furnishing of a personal bond alongwith an undertaking on behalf of revisionist by his legal guardian/father to the effect that he will not permit the revisionist to come in association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice and provide no occasion

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to the revisionist whereby his release on bail would defeat the ends of justice, by his legal guardian/father and two sureties each in the like amount to the satisfaction of the Court concerned subject to following conditions :-

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(i) Revisionist will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.

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(ii) Revisionist will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.

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(iii) Revisionist shall remain present, in person, before the Board on the dates fixed for (a) opening of the case; (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C. If in the opinion of the Board that absence of the revisionist is deliberate or without sufficient cause, then it shall be open for the Board to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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Any violation of above conditions will be treated misuse of bail and Board will be at liberty to pass appropriate orders in the matter regarding cancellation of bail.

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[Renu Agarwal, J.]

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Order Date :- 02.08.2023

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Karan/kkv

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Digitally signed by :- KRISHAN KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Shiva Shukla Thru. His Elder Brother Shudhanshu Shukla v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

Case brief

What is this about?

What did the court decide?

Shiva Shukla Thru. His Elder Brother Shudhanshu Shukla v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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