Juvenile X in Case Crime NO.83 of 2024 Thru. His Father vs State of U.P. Thru. Prin. Secy. Home Lko and 3 Others

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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CRIMINAL REVISION No. - 936 of 2024

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Juvenile X In Case Crime No.83 Of 2024 Thru. His Father

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.....Revisionist(s)

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	Versus
State Of U.P. Thru. Prin. Secy. Others	Home Lko And 3		.....Opposite Party(s)
Counsel for Revisionist(s) Counsel for Opposite Party(s)	: Vivek Pandey, Ahmad, Jagriti Jaiswal : G.A., Shailendra	Farhan Bardhan Kumar	Shaikh, Iqbal Rao, Rohini Tiwari

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Reserved on 04.12.2025 Delivered on 07.01.2026

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Court No. - 27

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HON'BLE RAM MANOHAR NARAYAN MISHRA, J.

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Heard submissions of Shri Iqbal Ahmad, learned counsel for the revisionist and learned A.G.A. appearing for the State.

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Pleadings have already been exchanged.

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Notice was served on opposite party no.2 personally but he has not appeared to contest the revision in which prayer for bail has been made. In this case, Hon'ble Supreme Court has directed expeditious disposal of the present revision.

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The instant criminal revision under Section 101 (2) of the Juvenile Justice Act has been preferred against the order dated 23.07.2024 passed by learned Additional District and Sessions Judge/ Special Judge POCSO Act, Gonda, in Criminal Appeal No. 38 of 2024, in "Dilshad Khan versus State of U.P.", in Case Crime No. 83 of 2024 under Section 376 (3) IPC

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and 3/6 (2) of the POCSO Act, Police Station, Kauria Bazar, District Gonda as well as order dated 22.05.2024, passed by the Juvenile Justice Board, Gonda "State versus Dilshad Khan" in Case Crime No. 83 of 2024 under Section 376 (3) IPC and 3/6 (2) of the POCSO Act, Police Station Kauria Bazar, District Gonda.

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Learned counsel for the revisionist submitted that according to prosecution version, the informant lodged an FIR at Police Station Kauria Bazar, District Gonda, on the basis of written report dated 26.03.2024, on the same day at 17:20 hours, with the allegation that his minor daughter, aged about 14 years, had gone to ease herself along with her elder sister, who was around 16 years old. About 500 meters away from her house, she separated from her sister to ease herself around 12:00 hours and accused Dilshad started forced filthy act with his daughter (the victim) in the bushes. When the victim cried, her sister ran towards the place and witnessed the incident. His elder daughter, thereafter, ran towards the house and told him about the incident. He rushed to the place of incident and found that Dilshad was standing there and his victim daughter was keeping her clothes in order. She told him that she was raped. The FIR was lodged under Section 376 (3) IPC and Section 3/4 POCSO Act at the concerned Police Station.

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He next submitted that during the course of investigation, the victim improved the FIR version in her statement under Sections 161 and 164 of the Cr.P.C. In her statement under Section 164 Cr.P.C., she stated that when her sister was easing herself, she was standing nearby and the accused suddenly came to her, dragged her by the hand, threw her down in the bushes, pulled down her lower garment and committed rape upon

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her. When hearing her shrieks, her sister reached there and made noise, whereupon the people working in the nearby fields came there and telephoned her father. Thereupon, he came to the place of incident and took them home. The incident occurred on 26.03.2024 at 1:00 PM. Her clothes worn, at the time of the incident, were deposited at the Police Station.

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He next submitted that the medical examination of the victim was conducted on the date of incident, in which no sign of sexual assault or any external injury on her body was found. The statement of the elder sister of the victim was recorded on the date of incident under Section 161 Cr.P.C., whereas the statement of the victim was recorded under Section 161 Cr.P.C. after six days i.e. on 27.03.2024 and her statement under Section 164 Cr.P.C. was recorded on 28.03.2024.

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He further submitted that the accused was declared as juvenile in the conflict of law by Juvenile Justice Board vide order dated 22.05.2024, in which his age was found as 17 years 11 months 24 days on the date of the incident. Thus, on the basis of his school records, his age was found to be between 16 to 18 years. The Juvenile Justice Board directed inquiry under Section 115 (1) of the for Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "Act, 2015") for preliminary assessment. In preliminary assessment report, Dr. Akanksha Shankar opined that on mental status examination of the accused, he seems to be capable of understanding the nature of the act, but for confirmation, detailed psychiatric assessment needs to be done. Discrepancies in answers during interview are evident. Preliminary assessment is required for detailed behavioral observation of at least 10

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days. The Juvenile Justice Board vide order dated 26.06.2024 has directed trial of the case by Children's Court under Section 18(3) POCSO Act.

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He further submitted that in the pathological report of vaginal swab of the victim, no living or dead spermatozoa were seen and the pathologist has opined that no definite opinion regarding sexual assault can be made out. Thus, neither in the medico-legal examination report nor in the pathological report, sexual assault on the victim is corroborated. Learned Juvenile Justice Board has wrongly rejected the bail application of the accused without considering parameters outlined in Section 12 of the Act, 2015. The learned appellate court has also dismissed the bail preferred under Section 101 (2) of the said Act, without considering the grounds taken therein in real and factual perspective of the case. No reason has been assigned by the appellate court in the impugned appellate order to arrive at the conclusion that if the revisionist is released on bail, it will defeat the ends of justice. The learned courts below have ignored the fact that there is not an iota of evidence to show that if the juvenile/ revisionist is released on bail, his release on bail is likely to bring him in association with any known criminal, or expose him to moral, psychological, or physical danger, or that his release would defeat the ends of justice, which are the parameters mandatory to be followed under Section 12 of the Act, 2015 while refusing the bail of a juvenile in conflict of law. The court below has overlooked the report of the District Probation Officer, in which nothing adverse has been found against the revisionist. The bail application of the revisionist has been rejected merely on the vague report of the Probation Officer and Police Officer, that if the revisionist will be released on bail, he will come into contact with known criminals. No internal or external injury was found on the person of the victim in her

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medico-legal examination report. With the above submissions, he prayed that the impugned orders passed by both the courts below are not sustainable and deserve to be set aside and the revisionist may kindly be released on bail.

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Per contra, learned A.G.A vehemently opposed the prayer for bail and submitted that in the present case, the FIR was lodged on the same day of the incident, without any undue delay. The elder sister of the victim is the eyewitness. The victim and her elder sister have given statements against the accused in support of the charge of rape during the investigation and the victim has supported her statement under Section 161 Cr.P.C., in her statement before the Magistrate recorded under Section 164 Cr.P.C. Therefore, there is no occasion to disbelieve the prosecution version at the stage of bail during trial. The Probation Officer, in his social investigation report, observed that the reason for the alleged offending act is lack of knowledge, minority, non-development of personality and the effect of the teenage years of the accused; there is also lack of supervision on the part of the family members of the accused. The victim has given the graphic narration of the sequence of events regarding the rape committed by the accused upon her and the learned appellate court took all the attending circumstances and materials collected during the investigation into account while dismissing the appeal preferred against the rejection of the bail application filed on behalf of the accused. The accused was at the stage of attaining majority. He was only six days short of attaining the age of 18 years on the date of the incident. The offence is of heinous nature and the accused possessed the requisite mens rea for committing the offence. He does not deserve to be released on bail. The sisters and parents of the victim as well as the witnesses of locality and an

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independent witness, Shivanand, have supported the prosecution version in their statements recorded by the investigating officer. According to academic records victim was of 14 years 02 months 25 days old at the time of the incident.

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On perusal of the record, it appears that the juvenile/ revisionist has been held in jail custody of Juvenile Observation Home since 27.03.2024. He had studied upto Class VIII up to the date of the incident. In the school record, his date of birth is shown as 02.04.2006 on which the Juvenile Justice Board relied upon. The medico-legal examination of the victim was conducted on the date of the incident, in which the doctor has stated that at the time of examination, no external injury was seen. The victim is stated to be 14 years of age at the time of the incident.

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12. Section 12 of the Act, 2015 provides as follows:-

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" Section 12. Bail to a person who is apparently a child alleged to be in conflict with law.

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(1) When any person, who is apparently a child and is alleged to have committed a abailable 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 any known criminal or expose the said person to moral, physical or psychological danger or the persons 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 1[or a place of safety, as the case may be] in such manner as may be

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prescribed until the person can be 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 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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Section 18 (3) of the Act, 2015 provides that where the Board after preliminary assessment under Section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences.

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Section 21 provides that no child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code (45 of 1860) or any other law for the time being in force.

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The composite reading of the various provisions of the Act, 2015 makes it obvious that the bail application of a juvenile will be considered under Section 12 of the Act, 2015 and not under the Criminal Procedure Code, even if the minor is to be tried as an adult under Section 18 (3) of the Act. The only interdiction on not granting bail to juvenile arises when reasonable grounds exist to believe that his release may lead to his association with known criminals or expose him to severe physical or psychological danger, or undermine the ends of justice. In the present case, the dis-entitlement categories contemplated in the proviso to Section 12 (1) of the Act, 2015, would not come in the way of the petitioner's

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application being considered for bail.

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In the present case, the juvenile in conflict of law has been held in observation home since 27.03.2024 i.e. for more than 21 months. He has no prior criminal history. He is not a man of criminal antecedent. Therefore, it cannot be held that he is flight risk or that he may influence the witnesses or tamper with the evidence in case of grant of bail. It is settled law that the gravity of the offence and seriousness of allegations is not the only ground to refuse the prayer for bail made on behalf of the juvenile.

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From perusal of the social investigation report of the District Probation Officer, no material is found to bring the case of the juvenile within the purview of the above three parameters outlined for the refusal of bail to a juvenile and nothing substantially adverse has been reported by the District Probation Officer in his report against the revisionist. The father of the revisionist has also undertaken that there is no chance that the accused may misuse the liberty of bail as the trial is still pending.

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In the present case, no material has been brought before the appellate court in support of its finding that in case of release on bail, the ends of justice will defeat. The apprehension of the appellate court that on being granted bail, there is a strong probability that the family members of the victim may be retaliatory due to anguish, which is likely to endanger the life of the revisionist is not based on any material. It appears that both courts below have refused the bail to the juvenile, mainly laying emphasis on the gravity of the offence and the age of the juvenile, who was about to attain the age of majority on the date of the incident.

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The Juvenile Justice (Care and Protection of Children) Act, 2015 has been enacted by the Parliament, is a reformative and benevolent in nature. Section 3 of the Act, 2015, provides general principles to be followed in administration of the Act.

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“ Section 3. General Principles to be followed in administration of Act. - The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:-

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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 beings shall be treated with equal dignity and rights.

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(iii) Principle of participation : Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child's views shall be taken into consideration with due regard to the age and maturity of the child.

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(iv) 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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(v) 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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(vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.

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(vii) Positive measures: All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act.

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

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(ix) Principle of non-waiver of rights: No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting

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on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver.

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(x) Principle of equality and non-discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child. General principles to be followed in administration of Act.

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

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(xii) Principle of institutionalisation as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.

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(xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.

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(xiv) Principle of fresh start : All past records of any child under the Juvenile Justice system should be erased except in special circumstances.

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(xv) Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.

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(xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act."

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In the case of Sunil Kumar Sambhudayal Gupta Vs. State of

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Maharastra 2011 (72) ACC 699 , Hon'ble Apex Court has held that :-

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"Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration.

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The Appellate Court should bear in mind the presumption of innocence of the accused, and further, that the Trial Court's acquittal bolsters the

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presumption of his innocence. Interference with the decision of the Trail Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference."

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21. In the case of Rahul Patel Vs. State of U.P. & another, [2018 (1) JIC 357 (All)] , this Court has held as under :-

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"8. The Apex Court in a catena of judgements has constantly held that gravity of the offence is not a ground to deny bail to a juvenile accused. Unless the conduct of the accused is such to indicate that in all likelihood, after being released on bail, the juvenile-accused will indulge into more crimes. If there are no imminent chances of his repeating the crime, bail to a juvenile should not be ordinarily refused."

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Keeping in view the fact of the case, arguments advanced by learned counsel for the parties and legal provisions/law laid down by Apex Court and by this Court, it can be concluded that in present revision no ground is available on record to reject the application of juvenile for bail. Hence, the revision deserves to be allowed. Both the courts below could not appreciate the legal position while rejecting bail application of delinquent juvenile. The revision stands allowed . Consequently, the impugned orders dated 23.07.2024 passed by learned Additional District and Sessions Judge/ Special Judge POCSO Act, Gonda, in Criminal Appeal No. 38 of 2024, in "Dilshad Khan versus State of U.P.", in Case Crime No. 83 of 2024 under Section 376 (3) IPC and 3/6 (2) of the POCSO Act, Police Station, Kauria Bazar, District Gonda and order dated 22.05.2024, passed by the Juvenile Justice Board, Gonda "State versus Dilshad Khan" in Case Crime No. 83 of 2024 under Section 376 (3) IPC and 3/6 (2) of the POCSO Act, Police Station Kauria Bazar, District Gonda are set aside.

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It is directed that the revisionist shall be released on bail executing personal bond by his natural guardian/father with two solvent sureties

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each in the like amount to the satisfaction of Special Judge POCSO Act, Gonda with the stipulation that on subsequent dates of hearing, he shall produce the delinquent juvenile before the Board during the pendency of the case. His guardian/father shall also submit an undertaking before the Board that, (i) he shall keep proper control and look after the juvenile, (ii) He will keep away him from the company of known criminals and will do all of his endeavour to improve his better future, (iii) he will take care for moral, physical and psychological development of his son, (iv) the revisionist or his father shall not tamper with the evidence or cause threat to the witnesses. The revisionist through his guardian shall also file undertaking to the effect that he shall not seek an adjournment on the date fixed for evidence when the witnesses are present before the Children's Court.

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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 trial court on such periodical basis as the trial court determines.

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(Ram Manohar Narayan Mishra,J.)

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January 7, 2026 Mohd. Sharif

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Digitally signed by :- MOHAMMAD SHARIF High Court of Judicature at Allahabad, Lucknow Bench

Juvenile X in Case Crime NO.83 of 2024 Thru. His Father v. State of U.P. Thru. Prin. Secy. Home Lko and 3 Others

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Juvenile X in Case Crime NO.83 of 2024 Thru. His Father v. State of U.P. Thru. Prin. Secy. Home Lko and 3 Others

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