MANU/UP/4954/2018

Equivalent Citation: 2018 (105) AC C 396

IN THE HIGH COURT OF ALLAHABAD

Criminal Revision No. 708 of 2017
Decided On: 03.04.2018
Appellants: Babloo
Vs.
Respondent: State of U.P. and Ors.
Hon'ble Judges/Coram:
Jahangir Jamshed Munir, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Sanjeev Kumar Trivedi, Rajeev Kumar Singh Parmar
and Sujeet Kumar
For Respondents/Defendant: A.G.A.
JUDGMENT
Jahangir Jamshed Munir, J.
1. Service upon O.P. No. 2 is held sufficient in view of office report dated 30.5.2017.
2. Heard Sri Umesh Kumar holding brief of Sri Rajeev Kumar Singh Parmar, learned
Counsel for the revisionist and Sri Saquib Meezan, learned AGA for the State and
perused the record.
3 . This criminal revision is directed against the order passed by Sri Surya Prakash
Sharma Additional Sessions Judge, F.T.C. Court No. 1, Kannauj in Criminal Appeal
No. 21 of 2016 dismissing the said appeal and affirming an order of the Juvenile
Justice Board, Kannauj dated 5.11.2016 in Case Crime No. 579 of 2016 under
sections 376-D, 504, 506 IPC, 66-A I.T. Act and section 3/4 POCSO Act declining to
grant bail to the revisionist, a declared juvenile.
4 . The submission of learned Counsel for the applicant is that both Courts below
have passed the order impugned cursorily and without adverting to relevant evidence
on record or applying the standards prescribed by law for the decision of a bail plea
by a juvenile.
5 . The facts in short giving rise to the present revision are that an FIR dated
8.9.2016 came to be lodged at 2.00 PM about the occurrence that had taken place
some 15-20 days antedating the registration of the FIR where the first informant who
is opposite party No. 2 and the father of the prosecutrix said to, be a minor girl of 14
years. The allegations in the first information report run to the effect that the
informant is a native of village Chatnepur P.S. Saurik, District Kannauj; that his
daughter Km. Neelam aged about 14 years went to graze her goats alongwith a
neighbor an elderly woman of 60 years, one Sridevi W/o. Shiyaram who also used to
go to graze her likestock; that it is alleged that natives of his village Vijay Singh S/o.
Jeetu @ Jitendra and Babloo S/o. Surendra Singh Thakur (revisionist) ravished his

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daughter and captured some of those obscene moments on a video recording device
done by one Sanjesh @ Vinay S/o. Kishan Batham; that the three accused above
named would blackmail his daughter with the aid of the captured video on their
mobile saving in the first information that this occurrence took place 15-20 days ago
but his daughter shared this information with him on 7.9.2016; that the accused on
being confronted about their aforesaid disgraceful act by the informant and his wife
resorted to a flourish of abuses with a threat to do the first informant to death in case
he took any proceedings against them or reported the matter to the police or even
shared the matter with anyone; and, that the informant said that there could be other
boys involved, in association with the nominated accused, but all the same the
incident has left girl and women in the village besides himself in a reaction of fear
and indignation and women feel unsafe to step out of their homes with a concluding
request for necessary action to the police.
6 . Adverting to the submission of learned Counsel for the revisionist it would be
gainful to refer to the provisions of section 12(1) of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (hereinafter referred to as the "Act"). The provisions
of section 12(1) of the Act that are apposite reads thus:--
"12. Bail to a person who is apparently a child alleged to be in conflict with
law.--(1) When any person, who is apparently a child and is alleged to have
committed a bailable or non-bailable offence, is apprehended or detained by
the police or appears or brought before a Board, such person shall,
notwithstanding anything contained in the Code of Criminal Procedure, 1973
(2 of 1974) or in any other law for the time being in force, be released on
bail with or without surety or placed under the supervision of a Probation
Officer or under the care of any fit person:
Provided that such person shall not be so released if there appears
reasonable grounds for believing that the release is likely to bring
that person into association with any known criminal or expose the
said person to moral, physical or psychological danger or the
person's release would defeat the ends of justice and the Board shall
record the reasons for denying the bail and circumstances that led to
such a decision."
7 . Learned Counsel for the revisionist has submitted that the Courts below have
passed the impugned orders ignoring the fact that the revisionist is a juvenile. His
date of birth is 10.10.1998 and with reference to the date of occurrence he was
below 18 years on the date of occurrence. Being a juvenile, the revisionist is entitled
to bail in accordance with the proviso to section 12(1) of the Act. It is submitted that
the Courts below have ignored the provisions of section 15(1) of the Act that are
mandatory in nature. A perusal of the impugned order would show that both Courts
below have not at all considered the report of Probation Officer, it is urged. It is
emphasised that in case of a juvenile release on good conduct under the care of
parents or other fit person is an option, even if guilt is established by virtue of
section 15(1)(e) of the Act. The plea for bail would have to be considered in that
perspective eschewing institutional incarceration, but to all that Courts below have
not applied their mind. In particular, it has been argued that the Courts below have
not indicated any reasonable ground for their satisfaction that in case the revisionist
were released on bail, he is likely to come into association with any known criminal
or, his release would expose him to moral, physical or psychological danger or that
his release would defeat the ends of justice.

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8 . A perusal of the impugned order passed by the Appellate Court would show that
learned Judge hearing the appeal has been swayed by the fact that revisionist is 17
years and 10 months old, and, therefore, he is nominally a juvenile but in fact almost
an adult. The Judge in appeal for his approach to the above fact has drawn
inspiration from the provisions of sections 15 and 18(3) of the Act. The provisions of
sections 15 and 18 of the act are being extracted herein:--
"15. Preliminary assessment into heinous offences by Board.--(1) In case of
a heinous offence alleged to have been committed by a child, who has
completed or is above the age of sixteen years, the Board shall conduct a
preliminary assessment with regard to his mental and physical capacity to
commit such offence, ability to understand the consequences of the offence
and the circumstances in which he allegedly committed the offence, and may
pass an order in accordance with the provisions of sub-section (3) of section
18:
Provided that for such an assessment, the Board may take the
assistance of experienced psychologists or psycho-social workers or
other experts.
Explanation.--For the purposes of this section, it is clarified that preliminary
assessment is not a trial, but is to assess the capacity of such child to
commit and understand the consequences of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment that the matter
should be disposed of by the Board, then the Board shall follow the
procedure, as far as may be, for trial in summons case under the Code of
Criminal Procedure, 1973 (2 of 1974):
Provided that the order of the Board to dispose of the matter shall be
[appealable] under sub-section (2) of section 101.
Provided further that the assessment under this section shall be
completed within the period specified in section 14."
"18. Orders regarding child found to be in conflict with law.--(1) Where a
Board is satisfied on inquiry that a child irrespective of age has committed a
petty offence, or a serious offence, or a child below the age of sixteen years
has committed a heinous offence, then, notwithstanding anything contrary
contained in any other law for the time being in force, and based on the
nature of offence, specific need for supervision or intervention,
circumstances as brought out in the social investigation report and past
conduct of the child, the Board may, if it so thinks fit,--
(a) allow the child to go home after advice or admonition by
following appropriate inquiry and counselling to such child and to
his parents or the guardian;
(b) direct the child to participate in group counselling and similar
activities;
(c) order the child to perform community service under the
supervision of an organisation or institution, or a specified person,
persons or group of persons identified by the Board;

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 (d) order the child or parents or the guardian of the child to pay
fine:
Provided that, in case the child is working, it may be
ensured that the provisions of any labour law for the time
being in force are not violated;
(e) direct the child to be released on probation of good conduct and
placed under the care of any parent, guardian or fit person, on such
parent, guardian or fit person executing a bond, with or without
surety, as the Board may require, for the good behavior and child's
well-being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct and
placed under the care and supervision of any fit facility for ensuring
the good behavior and child's well-being for any period not
exceeding three years;
(g) direct the child to be sent to a special home, for such period, not
exceeding three years, as it thinks fit, for providing reformative
services including education, skill development/counselling, behavior
modification therapy, and psychiatric support during the period of
stay in the special home:
Provided that if the conduct and behavior of the child has
been such that, it would not be in the child's interest, or in
the interest of other children housed in a special home, the
Board may send such child to the place of safety.
(2) If an order is passed under clauses (a) to (g) of sub-section (1), the
Board may, in addition pass orders to--
(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing at a
specified place; or
(v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment under section 15 pass an
order that there is a need for trial of the said child as an adult, then the
Board may order transfer of the trial of the case to the Children's Court
having jurisdiction to try such offences."
9 . A perusal of the provisions of sections 12 to 18, all of which form part of an
integrated scheme in Chapter IV of the Act, entitled the "Procedure in Relation to
Children in Conflict with Law" would show that a child in conflict with law who is a
juvenile, before he can be dealt with as an adult on the ground that he is above the
age of 16 years, where he has committed a heinous offence as defined under the Act
requires a preliminary assessment to be made by the Board about his mental and
physical capacity to commit such an offence, ability to understand the consequence

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of the offence, and, the circumstances in which he allegedly committed the offence,
whereafter the Board may pass an order in accordance with section 18(3) of the Act,
that there is a need for trial of the said child as art adult, before the Childrens Court
having jurisdiction to try offences of that glass,
10. In the present ease, the Judge in the Court of appeal has assumed jurisdiction to
treat the case of the revisionist on his spontaneous assessment, while hearing an
appeal from the order of the Juvenile Justice Board refusing bail, to treat the
revisionist as an adult, even though there is no order made in relation to the
revisionist under section 15(1) read with section 18(3) by the Board which has to be
done by the Board on relevant and specific considerations mentioned there, and, in
the manner prescribed, paying due regard to the proviso and the explanation to
section 15(1) of the Act. The learned Judge in the absence of an assessment made by
the Board under section 15(1) and an order passed under section 18(3), would in the
opinion of this Court, have no jurisdiction to treat and consider the revisionist as an
adult by simply falling back on his chronological age that is near adulthood, and, the
bald allegation against him in the FIR, which is precisely what the learned Judge in
the Court of appeal has done. The Appellate Court, or for that matter the Juvenile
Justice Board, were required to strictly scrutinize the case of the revisionist for bail in
accordance with parameters prescribed by section 12(1) of the Act about which an
accurate statement of the law is to be found in Nitin Pal (Minor) v. State of U.P. and
another, MANU/UP/0619/2015 : 2015 (89) ACC 881 (Alld.) paragraphs 11 and 12 of
the report in Nitin Pal (Minor) (supra) are relevant and extracted below:--
"11. In view of the mandate aforesaid, it is obvious that if the aforesaid
conditions are existing and there is reasonable likelihood of minor coming
into association with any known criminal or he is likely to be exposed to
moral, physical or psychological danger or his release would defeat the ends
of justice, then the bail to the delinquent juvenile in conflict with law will not
be allowed.
12. Even as per settled position of law, the merits/gravity of the offence will
not be the sole guiding factor for disposal of the bail application of the
delinquent juvenile in conflict with law. It is true that the first information
report has been lodged against the revisionist under section 376(2)(g) and
364 I.P.C. but gravity of the offence loses significance in view of the report
of the District Probation Officer dated 20.07.2013 annexed as Annexure No.
11 to the affidavit filed in support of this revision, wherein, it has been
specifically stated that the parents of the minor are willing to reform their
child. This positively indicates that parents are ready to take custody of their
son with a will to improve upon his life."
11. This Court is, therefore, of opinion that the Judge in the Appellate Court fell into
an error in proceedings to consider the case of the revisionist, treating him to be an
adult, in the absence of a declaration to that effect made by the Juvenile Justice
Board under section 18(3) of the Act, after an inquiry in accordance with section
15(1) of the Act. This Court also finds that the Appellate Court has hardly approached
the revisionist's plea for bail on the parameters set out in section 12(1) of the Act,
and, all of which are carried in the proviso of section 12(1). The Appellate Judge
instead of referring to facts and evidence, on the basis of which he found the
revisionist not entitled to bail under any of the three specified exceptions to the rule
of bail to juveniles under the proviso to section 12(1), has chosen to paraphrase the
provisions of section 12(1), and, the three exceptions mentioned in the proviso

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thereto bereft of any specific reference to the revisionist's case, assessed in
accordance with the provisions of the Act.
1 2 . Thus, this Court finds that the Appellate Court has utterly failed to exercise
jurisdiction as the Court of appeal, and, has proceeded to decide the appeal in a
casual manner on irrelevant considerations that the law does not countenance. The
two Courts below are in unanimous error in not taking into consideration the social
investigation report, which in this case is there on record from the District Probation
Officer, and, carries relevant information for the purpose of exercise of jurisdiction
under section 12(1) of the Act.
13. The order passed by the Juvenile Justice Board is so cursory that it hardly carries
any reasoning and is no more than an ipse dixit of the members of the Board, who
have spoken without assignment of any reason. The order of the Board on this count
alone is flawed. Thus, seen this Court finds that both the Appellate Court and the
Juvenile Justice Board have not attended to the plea of bail brought by the revisionist
in accordance with law, which they were duty bound to do. It, therefore, appears
appropriate under the circumstances to remand the matter to the Juvenile Justice
Board for decision afresh bearing in mind the views expressed in this judgment.
14. In the result, this revision succeeds and is allowed. The impugned order dated
7.1.2017 passed by Additional Sessions Judge, Court No. 1, Kannauj in Criminal
Appeal No. 21 of 2016 and by the Juvenile Justice Board, Kannauj in Case No. 28 of
2016 relating to Case Crime No. 579 of 2016, under sections 376-D, 504, 506 IPC
and section 3/4 POCSO Act and section 66-A I.T. Act, P.S. Saurikh, District Kannauj
are hereby set aside. The bail application made by the revisionist would stand
restored to file of the Juvenile Justice Board, Kannauj with a direction to decide the
same afresh in accordance with the guidelines in this judgment within a period of 15
days of receipt of a certified copy of this order by the Board.
The office is directed to forthwith forward a copy of this order to the Juvenile Justice
Board, Kannauj for compliance.
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