RESERVED AFR Case :- CRIMINAL REVISION No. - 183 of 2009 Petitioner :- Shiv Pujan @ Ram Poojan Respondent :- State Of U.P. & Another Petitioner Counsel :- Vinay Kumar Pathak,S.K Pandey Respondent Counsel :- Govt. Advocate Hon'ble Ashok Srivastava,J.
This criminal revision has been directed against the
judgment and order dated 22.12.2008 passed by the
learned Sessions Judge, Basti in Criminal Appeal No.
148 of 2008.
An F.I.R. was lodged by one Ram Bahadur with the
police of Police Station Nawabganj, Gonda on
6.5.2008 under Section 376 I.P.C. against the
revisionist. It has been alleged in the F.I.R. that on
5.5.2008 in between 10.00 P.M. to 11.00 P.M., the
revisionist entered the residential house of the
complainant and committed rape upon the 7 years
old grand daughter of the complainant. The
revisionist was arrested and produced before the
court. He took a plea before the court that he was a
juvenile on the date of the alleged offence and,
therefore, he should be declared as such and his
matter be referred to the Juvenile Justice Board,
Basti (for the sake of convenience hereinafter
referred to as ‘Board’). Thereafter the matter was
referred to the Board. After hearing both the parties,
the Board vide its order dated 18.9.2008 held that the
revisionist was a juvenile on the relevant date.
Thereafter an application for bail under Section 12 of
The Juvenile Justice (Care and Protection of
Children) Act, 2000 (for the sake of convenience
hereinafter referred to as ‘Act’) was moved before the
Board. After hearing both the parties, the bail
application was rejected. Feeling aggrieved by the
said order passed by the Board, the revisionist filed
Criminal Appeal No. 148 of 2008 before the learned
Sessions Judge, Basti under the provisions of
Section 52 of the Act. After hearing, the learned
Sessions Judge dismissed the appeal. Feeling
aggrieved by the said judgment, the present revision
has been filed.
I have heard learned counsel for the parties and
perused the records.
It has been submitted from the side of the revisionist
that the judgment and order impugned herein is bad
in the eyes of the law and the learned Sessions
Judge has failed to apply his mind in the matter in a
proper manner. It has been further submitted that the
learned Sessions Judge as well as learned Board
had overlooked the mandatory provisions of the Act
and the law laid down by this court and also of the
Apex Court. It has also been submitted that the
learned Board while passing the bail rejecting order
dated 10.11.2008, relied upon certain facts which
actually did not exist. It has further been submitted
that the report submitted by the District Probation
Officer before the learned Board is completely in
favour of the revisionist despite no importance was
given to it and this perverse finding of the Board was
confirmed by the learned Sessions Judge in appeal
without proper appreciation of the facts. The
revisionist has cited a judgment 2006 ADJ 10-543
(Shailendra Kumar Yadav Vs. State of U.P.).
Learned A.G.A. has opposed this revision. He has
submitted that the revisionist has committed rape
upon an infant girl of 7 years and it is a crime against
the society. He has further submitted that in rest of
her life the victim will suffer with this trauma and
always have a feeling of humiliation while moving in
the society.
In the instant case, the revisionist is admittedly a
juvenile. The Juvenile Justice Act has been enacted
for the benefit of juvenile offenders. It means that
they will not be allowed to remain in custody without
any valid reason. For a healthy development of
personality, a healthy atmosphere should be given to
a juvenile offender and it is an indefeasible necessity.
The Act has been provided for care, protection,
treatment, development and rehabilitation of
neglected or delinquent juveniles and for adjudication
of certain matters relating to, and disposition of,
delinquent juveniles. It is needless to say that this Act
has got protection of the Indian Constitution. The
Indian Constitution imposes upon the State a primary
responsibility of ensuring that all the needs of
children are met and that their basic human rights are
fully protected. As back as in the year 1989 General
Assembly of the United Nations adopted the
Convention on the Rights of the Child wherein a set
of standards to be adhered to by all State parties in
securing the best interest of the child has been
prescribed. To achieve this object, the Act was
enacted in the year 2000.
From the perusal of the orders passed by the Board it
is evident that the learned Principal Magistrate has
mentioned that as per the report of the District
Probation Officer, the revisionist belongs to a middle
class family and the juvenile does not have any
criminal background. It has also come in his order
that as per the report of Police Station Nawabganj,
there was no criminal history behind the revisionist.
Nothing has been mentioned in this order that there
existed any circumstance which may go against him.
Despite, the learned Board has presumed that if the
juvenile is released on bail, he may come into contact
of known or unknown criminals. I do not find that
there is any rationale in the reasonings given by the
learned Principal Magistrate presiding the Board.
Rather it is based on conjectures and surmises.
Now let us examine the judgment and order passed
by the learned Sessions Judge, Basti which is
impugned herein. In the last but one para of his
judgment, the learned Sessions Judge has said that
the findings of the Juvenile Justice Board is sound
and based on records. He has dealt with the mental
condition of the victim and has said that incident has
destroyed the entire psychology of the girl and she
may be pushed into deep mental problem. In the
instant case the revisionist is a juvenile. He cannot
be kept at par with an adult accused. There is a
separate law for juveniles and therefore the other
face of the coin should also be seen while disposing
of such matters. The Act has been enacted with a
specific purpose and that is the immature
understanding of the alleged crime by a juvenile. The
juvenile cannot be put on the same footing upon
which an adult can be kept. In my opinion, the
learned Sessions Judge has not considered at all the
purpose for which the Act has been enacted.
Section 12 of the Act makes it mandatory that if a
juvenile is arrested or detained or appears or is
brought before a Board, he shall be released on bail.
He shall shall not be released if there appear
reasonable grounds for believing that the release is
likely o 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.
In the instant case no facts have been mentioned by
the Board which may indicate that if the juvenile is
released on bail, he will come into association with
any known criminal. There is no fact either in the
order of the Board that the release is likely to bring
the juvenile into association of such person which
may expose him to moral, physical and psychological
danger. As far as the last para of Section 12 (1) of
the Act,” that the release of the juvenile would defeat
the ends of justice,” is concerned, I do not find any
fact which may indicate that the juvenile, if release on
bail, will be hazardous to society or he may be in a
position to cause anything which may be termed as
something abnoxious or dangerous to the society at
large.
In the circumstances mentioned above, I am of the
view that the order passed by the Board and
confirmed by the learned Sessions Judge, Basti are
not based on sound reasonings and should be set
aside. As a consequence the revision is allowed.
In the instant case it is also to be seen that the
alleged crime is heinous. Therefore, it appears
necessary that the revisionist should be released on
bail but he should be in constant supervision of the
District Probation Officer of the district concerned till
the disposal of the matter pending before the Board.
Let the revisionist, Shiv Poojan alias Ram Poojan be
released on bail in Case Crime No. 170 of 2008,
under Section 376 I.P.C., Police Station Nawabganj,
District Gonda on furnishing a personal bond of the
father/legal guardian with two reliable sureties each
in the like amount to the satisfaction of the Juvenile
Justice Board, Basti.
The father of the revisionist, Shiv Poojan alias Ram
Poojan is directed to keep the revisionist under his
guidance and will make an endeavour to ensure that
he may not commit any act which may be termed as
illegal, immoral or against the norms of the society.
The revisionist shall be placed under the supervision
of the District Probationary Officer of the district
concerned till the disposal of the matter as already
mentioned above. If the District Probation Officer
finds that conditions imposed herein are violated he
shall report the matter to the Board and the Board
shall be at liberty to cancel the bonds and send the
revisionist to a special home as described in Section
9 of the Act.
Order Date :- 10.8.2010
SB/IA