Allowed

Gautam Nishad Thru. His Mother Smt. Kumari v. State of U.P. Thru. Prin. Secy. Home, Lko and 3 Others

Allahabad HC27 Jul 2023/455/2023

Case brief

AI extract

What is this about?

High Court allowed criminal revision setting aside impugned orders rejecting bail for a minor accused. The Court held that the lower courts failed to comply with Section 12 of the Juvenile Justice Act, 2015 by not considering Probation Officer's report. Petitioner was released on personal bond with conditions.

What did the court decide?

Revisionist released on bail with personal bond, sureties, and conditions of cooperating in trial and not tampering with evidence.

Gautam Nishad Thru. His Mother Smt. Kumari… — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:50939

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Court No. - 29

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Case :- CRIMINAL REVISION No. - 455 of 2023

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Revisionist :- Gautam Nishad Thru. His Mother Smt. Kumari Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko And 3 Others

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Counsel for Revisionist :- Santosh Kumar Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Renu Agarwal,J.

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Heard learned counsel for the revisionist and the learned AGA for the State.

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The instant Criminal Revision under Section 102 of the Juvenile Justice (Care & Protection of Children) Act, 2015 has been filed for setting aside the impugned judgment and order dated 2.3.2023 passed by learned Additional District & Sessions Judge/Special Judge (POCSO Act), Ambedkar Nagar in Criminal Appeal No. 3 of 2023 by which the criminal appeal filed by the revisionist has been rejected and also against the impugned judgment and order dated 10.1.2023 passed by the learned Juvenile Justice Board, Ambedkar Nagar in bail application in respect of Case Crime No. 209 of 2022, under Section 363,366,376,504 I.P.C. and Sections 3/4 of POCSO Act, Police Station Jahangirganj, District- Ambedkar Nagar by which the bail application of the revisionist has been rejected.

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Learned counsel for the revisionist conflict with law has submitted that revisionist is innocent and he has been falsely roped in the case due to malafide intentions as well as to save his social image and wreak vengeance with him. No such incident took place as alleged by the prosecution. The victim no.1 is major aged about 18 years. However, the revisionist is minor boy aged about 17 years. There are contradictions in the statement of the victim recorded U/s 161 & 164 CrPC which goes to reveal that the victims had gone willingly and live with their paramours with their own free will. No force was ever applied upon them. The victims did not raise any alarm during their travel. Thus, the whole prosecution story is baseless. There is neither any injury nor any symptoms of applied force or symptoms of committing rape on record. The victim no.1 mentioned her wrong date of birth for taking undue benefit in future. Thus, both the courts below wrongly rejected the application for bail moved on behalf of the revisionist. He is languishing in juvenile home since 13.10.2022. Both the courts

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concerned have passed the impugned order without perusing the material and evidence on record and against the provision of law hence, liable to be quashed.

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Learned A.G.A. vehemently opposed the submission made by the counsel for the revisionist and submitted that since there is no illegality or infirmity in the impugned judgement and order, the impugned orders are not liable to be quashed.

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The Juvenile Justice (Care and Protection) Act, 2015 (Act) has been enacted with object to reform and protect the future career of children below the age of 18 years. The main purpose of this Act is to keep the juvenile out of company and society of habitual criminals and to keep them in place of safety. The parameter and guidelines for assessment of plea of bail of a juvenile has been provided in Section 12 of the Act which is as under:-

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"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 1[or placed under the supervision of a Probation Officer or under the care of any fit institution of fit person] but he shall not be so 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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When such person having been arrested is not released on bail under sub-section (1) by the officer incharge 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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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 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

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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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Thus it is clear that provision for release to a juvenile has overriding effect to any provision contained in Code of Criminal Procedure, 1973 or in any other law for the time being in force. According to this provision, a duty has been cost to grant bail to a juvenile unless there is a reasonable ground for plea that the release is likely to bring the juvenile into organization with any known criminal or exposed the said juvenile to moral, physical or psychological danger or the person release would defeat the end of justice.

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From perusal of the impugned judgement and order passed by the appellate Court as well as of Juvenile Justice Board, it transpires that both the Courts below have passed the impugned

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judgement and order in cursory manner without placing due reliance on the report submitted by the District Probation Officer as well as facts and circumstances of this case. The aforesaid orders are not in accordance with the mandate of Section 12 of the Act. The impugned judgement and orders are liable to be set aside.

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Consequently, the revision succeeds and is allowed . Both the impugned judgements and orders dated 2.3.2023 and 10.1.2023 are hereby set aside.

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Let the revisionist - Gautam Nishad Through his Mother Smt. Kumari be released on bail in the aforesaid criminal case on furnishing of a personal bond along with an undertaking on behalf of revisionist by his legal guardian/mother 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 to the revisionist whereby his release on bail would defeat the ends of justice, by his legal guardian/mother 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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Order Date :- 27.7.2023 Shravan

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

Gautam Nishad Thru. His Mother Smt. Kumari v. State of U.P. Thru. Prin. Secy. Home, Lko and 3 Others

Case brief

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Gautam Nishad Thru. His Mother Smt. Kumari v. State of U.P. Thru. Prin. Secy. Home, Lko and 3 Others

Case brief

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