Point of Law: Bail granted - Rape - Section 12 of the Juvenile Justice Act makes the bail of the juvenile mandatory and the grounds on the basis of which his bail application can be rejected is also to serve the best interest of the juvenile himself. Therefore, the bail of juvenile can only be rejected if the court comes to a conclusion that the release on bail will adversely affect the interest of juvenile.

JUDGMENT :

1. Ms. Maimoona Fatima, learned counsel for the revisionist and learned AGA are virtually connected.

2. The opposite party no.2 has been served with notice, but none has appeared on his behalf.

3. Heard.

4. This revision has been filed against the judgment and order dated 23.9.2020 passed by Additional District and Sessions Judge/ Special Judge, POCSO Act-3, Gorakhpur in Criminal Appeal No.58 of 2020, which was preferred against the order dated 26.8.2020 passed by the Juvenile Justice Board, Gorakhpur rejecting the bail application of the revisionist and the appeal filed against the same has been also dismissed by the Additional District and Sessions Judge by the impugned order.

5. The FIR was registered against the revisionist, Jai Kishan (Minor) and others in respect of incident dated 3.4.2020 for the offence under Sections 147, 323, 376, 452, 504, 506 IPC and 3/4 POCSO Act, Crime No. 94 of 2020, PS -Sahjanwa, District Gorakhpur with the allegation that on 3.4.2020 at about 01:00 AM in the midnight, the revisionist on the point of a knife committed rape on the victim, who was a minor and he was caught red handed by the family members at the time of occurrence. Police was informed. So many persons of the locality and the family members of the revisionist also reached there, committed maarpeet with the family members of the victim and threatened them with dire consequences.

6. The admitted fact is that the revisionist was declared juvenile by order dated 28.7.2020 and he was found to be aged about 16 years 3 months and 2 days as per his high school certificate. Bail application was given before the Juvenile Justice Board and the same was rejected vide impugned order against which an appeal was filed and the appeal was also rejected by the impugned order dated 23.9.2020.

7. Both the orders have been challenged in this revision on the basis that both the courts below passed the impugned orders against the law and facts on record and the impugned orders are perverse vitiated and contrary to law and fact, therefore, the impugned orders are not sustainable under law and are liable to be set aside and the revisionist is entitled to be released on bail.

8. Submission of the learned counsel for the revisionist is that the victim was examined under Section 164 CrPC by the Magistrate in which she denied the fact of rape and stated that a false FIR was registered because of old enmity by her family members. It has been also submitted that no knife was recovered which was alleged to have been used by the revisionist and by causing threat, he committed rape on the victim. It has been also submitted that the legal provision provided under Section 12 of the Juvenile Justice Act was not interpreted in the right prospective which requires justice to be done to the juvenile. It has also been submitted that there was nothing adverse against the juvenile in the report of the Probationary Officer and there was no legal ground to deny bail to the revisionist.

9. Learned AGA has opposed the bail application and has submitted that after investigation charge sheet has already been filed. It has been also submitted that both the courts below have rightly considered the bail application and come to the conclusion that the bail application has got no force and was liable to be rejected. There is no illegality nor there is any jurisdictional error in the impugned orders.

10. The noticeable fact in this case is that both revisionist and victim were of comparable age and there was not much difference in their age. Another aspect is that no injury was found in the medical of the victim. It was also required to be considered that when the victim was examined under Section 164 CrPC, she denied the fact of rape by the revisionist. It appears that this fact was not given any weight by both the courts below, which is an apparent illegality in the impugned orders.

11. It is pertinent to mention that provision has been made under Section 12 of the Juvenile Justice