POINT OF LAW: Offence of rape – Bail Granted - There is nothing adverse in report of Probationary Officer nor there is any possibility that on being released revisionist may join company of known criminals - There is wide spread of pendemic Covid-19 and it requires liberal approach to be adopted while considering bail plea of a juvenile.

JUDGMENT :

1. Heard Sri N.I. Jafri, learned Senior Advocate assisted by Sri Sadaful Islam Jafri, learned counsel for revisionist and learned AGA for the State virtually.

2. Notice has been served to the informant and despite services, none appeared on his behalf nor any counter affidavit has been filed.

3. This criminal revision has been preferred against the impugned judgment and order dated 21.09.2020, passed by Additional Special Judge (POCSO) Court No. 1, Allahabad, in Criminal Misc. Bail Application No. 1571 of 2020, arising out of Case Crime No. 1087 of 2019, under Sections 363, 366, 376D, 120B IPC and Section 5/6 POCSO Act, Police Station Soraon, District Prayagraj, whereby the bail application of the juvenile Mohammad Najmuddin has been rejected.

4. The submission of the learned Senior Counsel is that the revisionist is a juvenile as determined by the Juvenile Justice Board and his case has been referred for trial as an adult in the Children Court.

5. As per FIR version, the victim is aged about 13 years. On 8.12.2019, in the night, she was taken by her Mausi, Usha Devi with two persons. Subsequently, when she was recovered, she stated that she went with her Mausi, accompanied by her brother-in-law co-accused Santosh and the present revisionist, who took her to Bhiwani, where rape was committed on her by both revisionist and Santosh.

6. The appellant has challenged the impugned order submitting that he is juvenile. He is in juvenile home since 20.12.2019 and his age has been determined below 18 years by Juvenile Justice Board, Prayagraj, vide its order dated 26.06.2020. From perusal of the said order, it is clear that the Board while referring the case of the present revisionist to the Children Court has referred that on the date of incident, the age of the juvenile was determined to be 17 years, 11 months and 7 days. It has further been submitted that the revisionist has been falsely implicated in the present case. The age of the victim is about 20 years. When the revisionist has applied for bail before the Children Court, his bail application was rejected. Submission of the learned counsel is that the Children Court rejected the bail application illegally without taking into consideration Section 12 of the Juvenile Justice (Care and Protection of Children) Act and also the report of the Probationary Officer. The medical report of the victim does not suggest recent sexual intercourse with her nor any injury has been found on her private part. Further submission is that there is discrepancy in the statement of the victim given under Section 161 CrPC to the Investigating Officer and under Section 164 CrPC to the Magistrate. The ossification report of the victim shows that she was above 18 years in age. The bail application of the revisionist has been rejected only on the basis of the gravity of the offence without giving due consideration to the circumstances of the case and the age of the juvenile. Submission of the learned counsel is that the rejection of the bail application is illegal and the learned Court has not been able to exercise the jurisdiction vested in it. The order suffers from jurisdictional error, material irregularity and illegality, and therefore, the impugned order is liable to be set aside and the revisionist is entitled to be released on bail.

7. Learned AGA has opposed and has submitted that at the time of incident as per educational record, the revisionist was just below 18 years in age. The Juvenile Justice Board found him to be of matured understanding, and therefore, his case was referred for trial as an adult before the Children Court. It has been also submitted that there is no illegality or material irregularity nor there is any jurisdictional error in the impugned order, and therefore, the revision is liable to be rejected.

8. It is pertinent to mention that provision has been made under Section 12 of the Juvenile Justice Act that when any juvenile who is accused of a bailable or a non-bailable of