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2020 Supreme(All) 1362
IN THE HIGH COURT OF ALLAHABAD
Jahangir Jamshed Munir, J.
Akash - Appellants
Vs.
State of U.P. and Ors. - Respondent
Criminal Revision No. 1944 of 2019
Decided On : 05-10-2020
For the Appellant : Babu Lal Ram and Phool Singh Yadav
For the Respondents: A.G.A.
Headnote:
POCSO Act - Section ¾ - Indian Penal Code - Section 376 – Criminal Procedure Code - Section 161 – Anticipatory bail - First Information Report - Based on the evidence led - Claim of compensation - Notice was issued to opposite party by this Court vide order - According to office report notice has been received back after personal service detailed in report placed at Flag-A - A perusal of said report shows that Chief Metropolitan Magistrate, Kanpur Nagar has indicated through his memo that notice issued by this Court has been personally served by Head Constable on opposite party - Service upon opposite party therefore held sufficient - No on appears on behalf of said opposite party - Held, In result this Court does not find any good ground to interfere with impugned orders - This revision fails and is dismissed - It is however clarified that anything said in this matter will not affect rights of parties on merits and Juvenile Justice Board or Children's Court trying offence would be free to reach its conclusions at trial based on evidence led unaffected by anything said here - However, looking to the period of detention of revisionist, it is directed that trial pending before the concerned Court be concluded expeditiously and preferably within two months from the date of receipt of a copy of this order, in accordance with Section 309 and in view of principle laid down in the judgment of Humble Supreme Court in case if there is no legal impediment - It is made clear that in case the witnesses are not appearing, the concerned Court shall initiate necessary coercive measures for ensuring their presence - Case in hand shows that revisionist by his action if true has put society and its surroundings on alarm - His actions have led to a situation, where prima facie no child of tender years and more than that the parents or the guardians of a young child would feel safe during their daily routine, when there is nothing otherwise to call extra caution - In opinion of this Court it is a case where release of child in conflict with law would lead to ends of justice being defeated - gravity of charge, manner of its perpetration circumstances in which offence is alleged to have been committed its immediate and not so immediate impact on the society at large and locality in particular besides its impact on aggrieved family are all matters to be taken into reckoning while judging a juvenile's bail plea - All these factors are relevant under the last disentitling clause postulated under the proviso to Section 12(1) of Act, which says that release of the juvenile would 'defeat the ends of justice' - After all 'defeat the ends of justice' is not a word of art. It has been thoughtfully introduced by legislature to arm the Court with a right to overcome an otherwise absolute right to bail where in the totality of the circumstances, release on bail would adversely impact the law and order and the equilibrium of an ordered society – Appeal dismissed
JUDGMENT :
Jahangir Jamshed Munir, J.
1. This revision is directed against an order of Smt. Pooja Singh, Special Judge (POCSO)/XIth Additional Sessions Judge, Kanpur Nagar dated 30.3.2019 dismissing Criminal Appeal No. 30 of 2019 and affirming an order of the Juvenile Justice Board, Kanpur Nagar dated 16.2.2019 refusing bail to the revisionist in Case Crime No. 530 of 2018, under Section 376 IPC and Section 3/4 of the POCSO Act, Police Station Panki, District Kanpur Nagar.
2. Notice was issued to opposite party No. 2 by this Court vide order dated 14.5.2019. According to the office report dated 31.7.2019, notice has been received back after personal service, detailed in the report, placed at Flag-A. A perusal of the said report shows that the Chief Metropolitan Magistrate, Kanpur Nagar has indicated through his memo dated 26.6.2019 that the notice issued by this Court has been personally served by Head Constable No. 787 on opposite party No. 2. Service upon opposite party No. 2 is, therefore, held sufficient. No on appears on behalf of the said opposite party.
3. Heard Sri P.S. Yadav, learned Counsel for the revisionist and the learned A.GA. appearing on behalf of the State.
4. A perusal of the First Information Report dated 16.11.2018 shows that it has been lodged by opposite party No. 2, Smt. Mohini wife of Akhilesh on 16.11.2018 at 00:31 hours regarding an occurrence dated 15.11.2018, that befell the victim at 6 o'clock in the evening. It is said in the FIR that the informant's minor daughter (for short, 'the prosecutrix') aged about six years was playing alongwith other children of the locality when the revisionist, who is also a resident of the same locality, ravished the prosecutrix. It is mentioned in the FIR that the informant had come to the Station alongwith a relative of hers, whom she has named in the FIR as also the minor prosecutrix, asking the police to register a case and to take necessary action. It appears that Case Crime No. 530 of 2018, under Section 376 IPC and Section 3/4 of the POCSO Act, Police Station Panki, District Kanpur Nagar, was registered on the basis of the aforesaid information.
5. The revisionist moved the Juvenile Justice Board asking them to declare him a child in conflict with law. The Juvenile Justice Board by their order dated 8.1.2019 adjudged the revisionist a child in conflict with law aged 14 years, 3 months and 15 days on the date of occurrence. The revisionist then asked to be released on bail by an application made under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'the Act'). The bail application came to be rejected by the Juvenile Justice Board. The revisionist assailed that order in Appeal carried to the learned Sessions Judge. The revisionist's Appeal has since come to be dismissed by means of the impugned order. Assailing both the orders denying bail, the instant Revision has been brought.
6. It is argued by Sri P.S. Yadav, learned Counsel for the revisionist that the revisionist is a child in conflict with law, who is below the age of 16 years. His case regarding bail, therefore, has to be considered strictly on the parameters of Section 12(1) of the Act. He emphasizes that regarding bail plea of a juvenile of the revisionist's age, there can be no reference about the merits of the prosecution case or the gravity of the offence. All that is required to be seen is whether given his right to be released on bail, is he disentitled under any of the three exceptions to the rule of bail postulated under Section 12(1) of the Act. Mr. Yadav submits that there is nothing on record to show that the revisionist's case falls under any of the three disentitling exceptions. He urges that the Courts below have not properly evaluated the social investigation report, which alone could furnish relevant material to form an opinion whether the revisionist ought to be enlarged on bail pending trial. Learned Counsel for the revisionist has placed reliance on
