The Allahabad High Court while allowing a petition said that the gravity of the offence is not a relevant consideration for declining the bail to the juvenile.
A Single Bench of Justice Justice Sanjay Kumar Pachori passed this order while hearing a Criminal Revision filed by a juvenile.
The Criminal Revision has been preferred by the revisionist through his father under Section 102 of The Juvenile Justice (Care and Protection of Children) Act, 2015 against the judgment dated 7.3.2022 passed by Special Judge (POCSO) Act, Gorakhpur in Criminal Appeal, whereby the appellate court has rejected the Criminal appeal and affirmed the order dated 5.1.2022 passed by Juvenile Justice Board, Gorakhpur.
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 under Sections 376-D, 377, 354, 452, 201, 504, 506 of the Indian Penal Code, Section 5/6 of Protection of Children from Sexual Offences Act and Section 66, 67 of Information Technology Act, Police Station- Bansgaon, District- Gorakhpur.
Counsel for the revisionist submitted that the revisionist is innocent and has been falsely implicated in the case due to ulterior motives. The revisionist was 15 years and 12 days old at the time of the incident. As per educational certificate, the Juvenile Justice Board declared the revisionist as juvenile vide order dated 17.11.2021 and no proceeding is pending against the order.
It is further submitted that the FIR dated 19.06.2021 was lodged by the brother of the victim against five named persons. It is further submitted that the revisionist is not named in the FIR.
It is also submitted that as per allegation of FIR, offence under Section 376-D, 377, 354, 452, 504, 506, 201 IPC, 5/6 POCSO Act and Section 66 and 67 of I.T Act has been committed more than one year before lodging of the FIR.
Counsel for the revisionist said that for the first time the name of the revisionist surfaced in the statement of the victims under Section 161 and 164 CrPC. After completing the investigation, named co-accused Shubham Yadav has been exonerated by the IO.
Counsel for the revisionist further said that there is material contradiction/ improvement between the allegation of the FIR and statement of two victims under Sections 161 and 164 CrPC.
He also said that as per allegation of the FIR, one of the victims aged about 18 years had a love affair with named co-accused Abhijeet Prajapati. It is further submitted that co-accused Abhijeet Prajapati, Uday Bhan Yadav, Manish Yadav and Sachin have been granted bail by a coordinate Bench of the Court. The revisionist has been in protective custody in an observation home since 16.7.2021.
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 court below are illegal, contrary to law, and is based on the erroneous assumption of facts and law.
Per contra; A.G.A for the State 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 criminal revision is liable to be dismissed.
The Court said that,
It is a settled position of law that the use of the word ‘shall’ in subsection (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 is sometimes not so interpreted if the context or intention otherwise demands.
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 released in certain circumstances as the latter part of the section also uses the word ‘shall’ imposing certain mandatory conditions prohibiting the release of the juvenile by the Juvenile Justice Board. If there are 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 the juvenile is in conflict with law and would defeat the ends of justice.
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 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 the offence is not a relevant consideration for declining the bail to the juvenile.
“In view of the above foregoing discussion, I am not satisfied with the reasoning and conclusion of 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 juveniles and have declined to grant bail merely on the basis of unfounded 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 5.1.2022 passed by the Juvenile Justice Board and judgment dated 7.3.2022 passed by the Appellate Court are not sustainable”, the Court observed.
Hence, the Court set aside the above-mentioned orders and the criminal revision is allowed.
The Court ordered that,
Let the revisionist, aged about 15 years and 12 days old, who is in observation home since 16.7.2021 be released on bail via assurance and surety given by his natural guardian/father, in Case under Sections 376-D, 377, 354, 452, 201, 504, 506 of the I.P.C, Section 5/6 of Protection of Children from Sexual Offences Act and Section 66, 67 of Information Technology Act, Police Station- Bansgaon, District- Gorakhpur, after furnishing a personal bond on his father (Nanhelal Yadav) with two sureties of his relatives each in the like amount to the satisfaction of Juvenile Justice Board, Gorakhpur, subject to the following conditions:
(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.
(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.
(iii) Juvenile and natural guardian/father will report to the Probation Officer on the first Monday of every calendar month commencing with the first Monday of April 2023, and if during any calendar month the first Monday falls on a holiday, then on the following working day.
(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.