# Akhilesh Kumar Revisionist v. State of U.P. &Anr

- **Citation:** (2019) 1 ILRA 690
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-26
- **Case number:** CRIMINAL REVISION No. 1126 of 2017
- **Bench:** Pritinker Diwaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-revisionist-v-state-of-u-p-anr-44541
- **Pages:** 5

## Headnote

Sri Narendra Gupta

Counsel for the Opposite Parties
Sri Ajay Srivastava, A.G.A.

A. Juvenile Justice (Care and Protection
of Children) Act, 2015 - heinous crime -
Bail "moral, physical or psychological
danger"
to
the
victim.
Report
of
Probationary
Officer
in
favour
of
revisionist- bail granted

On plain reading Section 12 of the Act of
2015
clear
the
intention
of
the
Legislature is to grant bail to the juvenile
unless either of the three condition
mentioned in the Section exists. (E-10)

## Text

690 INDIAN LAW REPORTS ALLAHABAD SERIES
already suffered the ignominy of the trial,
conviction and jail term, no matter for a
short while. Thus the appeal was allowed
and the order passed by the High Court
was set aside.

29. As in the above mentioned case,
it was held by the Supreme Court that at a
distant point of time it would be futile to
resume the proceedings of trial because
by then the witnesses of prosecution may
not be available, in the present case also I
find that approximately 27 years have
passed since the trial court had passed
order of discharge, therefore at this distant
point of time it does not appear to be
reasonable to direct the trial court to begin
proceedings of trial of the accused
revisionist, although I find that the
discharge order passed by the trial court
was not in consonance with law.

30. Accordingly this revision stands
dispose of.

31. Let a copy of this judgment be
transmitted to the trial court along with
the lower court record to do the needful. )
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.07.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.

CRIMINAL REVISION No. 1126 of 2017

Akhilesh Kumar ...Revisionist
Versus
State of U.P. &Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Narendra Gupta

Counsel for the Opposite Parties
Sri Ajay Srivastava, A.G.A.

A. Juvenile Justice (Care and Protection
of Children) Act, 2015 - heinous crime -
Bail "moral, physical or psychological
danger"
to
the
victim.
Report
of
Probationary
Officer
in
favour
of
revisionist- bail granted

On plain reading Section 12 of the Act of
2015
clear
the
intention
of
the
Legislature is to grant bail to the juvenile
unless either of the three condition
mentioned in the Section exists. (E-10)
(Delivered by Hon'ble Pritinker Diwaker, J.)

1. Heard Sri Narendra Gupta,
learned counsel for the revisionist and Sri
Ajay Srivastava, learned counsel for the
State. None for complainant-respondent
no.2 though served.

2. Present revision has been filed
against the order dated 25.10.2017 passed
by the Sessions Judge, Sitapur in Criminal
Appeal No.61 of 2017, dismissing the
appeal
preferred
by
the
revisionist
assailing the order dated 14.9.2017 passed
by Juvenile Justice Board, Sitapur, arising
out of Crime No.227 of 2017, under
Sections 341,342,312,313,376 of IPC and
3/4 POCSO Act, Police Station Sidhauli,
District Sitapur.

3. Facts of the instant case, in brief,
are that on 2.6.2017, FIR was lodged by
the mother of the prosecutrix, alleging in
it that when her daughter had gone to
fetch water from the hand pump, she was
taken by the wife of one Chander to the
house of the revisionist; the door was
bolted
from
outside
and
then
the
revisionist
committed
rape
on
the
prosecutrix. After about half an hour, door
was opened by the wife of Chander, who
asked the prosecutrix not to disclose the
1 All. Akhilesh Kumar Vs. State of U.P. & Anr.
691
incident to any one. It is stated that
thereafter, whenever her daughter used to
fetch water, the revisionist used to
commit rape on her and when 17 days
prior to 2.2.2017, prosecutrix disclosed
the fact to the revisionist that she is
pregnant, the revisionist with the help of
one
Harish
Chandra
gave
certain
medicines to the prosecutrix, resulting her
abortion. She states that since then the
prosecutrix was subjected to threat by the
accused persons. Based on this FIR,
offence
under
Sections
341,342,312,313,376,504,506 of IPC and
3/4 of POCSO Act was registered against
the revisionist and other accused persons.

4. The revisionist filed an application
before the Principal Magistrate, Juvenile
Justice Board, Sitapur under Section 12 of
Juvenile Justice (Care and Protection of
Children) Act, 2015 (for short ''Act of 2015')
for grant of bail, which was rejected on the
ground that if the revisionist is released on
bail, he would be exposed to moral, physical
or psychological danger.

5. The order passed by the Principal
Magistrate was assailed by the revisionist
by way of filing an appeal before the
Sessions Judge, Sitapur, which has been
dismissed by the order impugned dated
25.10.2017, mainly on the ground that the
revisionist has committed a serious
offence of rape and, if he is released on
bail, this would defeat the ends of justice.

Learned appellate court has further held
that the judgment of the trial court has been
passed after considering all the aspects of the
case; the same is based on sound reasons and
does not call for any interference.

6.

Learned
counsel
for
the
revisionist submits that both the courts
below have completely overlooked the
provisions of Section 12 of the Act of
2015 and more particularly, the report
dated 11.9.2017 submitted by the District
Probation Officer, Sitapur (Annexure-SA1) to the supplementary affidavit filed by
the revisionist. He submits that in the
report, nowhere it has been stated by the
Probation Officer that if the revisionist is
released on bail, he would be exposed to
moral, physical or psychological danger
and that if he comes back to the same
atmosphere, ends of justice would be
defeated. He submits that if the entire
report of the Probation Officer is seen, the
same appears to be in favour of the
revisionist and it is apparent that the
revisionist is a 12th class pass student; his
discipline in his house is satisfactory; his
behaviour with the villagers has been
found satisfactory and most importantly,
the villagers did not disclose anything
adverse against him. However, without
there being any basis or material, in the
last line of the report, it has been
mentioned that on the basis of information
given by the villagers, social atmosphere
of the revisionist does not appear to be
favourable. He submits that there is
absolutely nothing adverse in the report of
the Probation Officer that if the revisionist
is released on bail, he would be exposed
to moral, physical or psychological
danger and that the words "he would be
exposed
to
moral,
physical
or
psychological
danger"
have
been
mentioned in the impugned order just
because they are described in the relevant
provisions of law.

7.

Learned
counsel
for
the
respondent/State, however, submits that
the application and the appeal of the
revisionist have rightly been rejected by
the Courts below.
692 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Before drawing any conclusion
regarding the correctness or otherwise of
the orders impugned, a glance of the
relevant provisions of Section 12 of the
Act of 2015 becomes necessary, which is
reproduced
as
hereunder
for
ready
reference:

"Section 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 nonbailable 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.

(2) When such person having
been apprehended is not released on bail
under subsection (1) by the officer-incharge of the police station, such officer
shall cause the person to be kept only in
an observation home in such manner as
may be prescribed until the person can be
brought before a Board.

(3) When such person is not
released on bail under sub-section (1) by
the Board, it shall make an order sending
him to an observation home or a place of
safety, as the case may be, for such period
during the pendency of the inquiry
regarding the person, as may be specified
in the order.

(4) When a child in conflict with
law is unable to fulfill the conditions of
bail order within seven days of the bail
order, such child shall be produced
before the Board for modification of the
conditions of bail."

9. In the present case, in compliance
of the provisions of the Act of 2015, a
report of the concerned Probation Officer
was called by the Juvenile Justice Board
and following are the main points in the
said report:

"/keZ ds izfr n`f"Vdks.k % ldkjkRed

lekftd vkSj vkfFkZd izkfLFkfr %& lkekftd
,oa vkfFkZd fLFkfr fuEu oxhZ;A

orZeku
thou&fuokZgu
dh
ifjfLFkfr;ka
%&&&&&&&&&&&&&&&&&&&&

vU; egRoiw.kZ rF;] ;fn dksbZ gks %& oknh i{k
xkao ds gh jgus okys gSA

ckyd dh vknrsa %& ?kj esa vuq'kklu ds izfr
ckyd dh jk; ,oa izfrfdz;k%& lkekU; crk;h x;hA

ckyd ds jkstxkj ds O;kSjs ;fn dksbZ gks rks %&
dksbZ ugh crk;k x;kA

vk; ds O;kSjs rFkk vk; mi;ksx djus dk
rjhdk %& ughA

ckyd ds f'k{kk ds O;kSjs %& vipkjh fd'kksj ds
ckjs es crk;k x;k fd fd'kksj d{kk 12 ikl gSA

ckyd ds izfr d{kk ds lkfFk;ksa dh vfHko`fRr
1⁄4joS;k1⁄2 %&

ckyd ds izfr f'k{kdks dh vfHko`fRr 1⁄4joS;k1⁄2 %&
lkekU; crk;h x;hA

Ldwy NksM+us ds dkj.k %& dksbZ ugh crk;k
x;k A

fiNyk Ldwy tgkW v/;;u fd;k %&

O;kolkf;d izf'k{k.k ;fn dksbZ gks rks %& dksbZ
ugh crk;k x;kA

ckyd ds lkfFk;ksa vkSj mudk izHkko %& ge
mez ds ckydks ds lkFk mBuk&cSBku crk;k x;kA

iM+ksl vkSj iM+ksfl;ksa dh fjiksVZ %& vkl&ikl
ds yksxks }kjk okrkZ ds nkSjku crk;k x;k gS fd
1 All. Akhilesh Kumar Vs. State of U.P. & Anr.
693
vipkjh fd'kksj] fd'kksjh ds lkFk xyr dke djus ds
ekeys es tsy es can gSA

tk¡p dk ifj.kke

HkkoukRed rF; %& lkekU;A

'kkjhfjd n'kk %& vk;q ds vuqlkj Bhd crk;h
x;hA

cqf)eRrk %& vk;q ds vuqlkj Bhd crk;h
x;hA

lkekftd vkSj vkfFkZd rF; %& fuEuLrjh;
xzkeh.k thou ;kiuA

/kkfeZd rF; %& lkekU;A

leL;kvksa ds bafxr dkj.k %&&

izdj.k dk fo'ys"k.k ftlls ;g irk pys fd
vipkjh O;ogkj dSls fodflr gqvk %& LFkyh; tkWp
ds le; fd'kksj ds ekrk firk o fuoklhx.k xzk0
[ksjok etjk [kjkSfy;k Fkkuk fl/kkSyh ftyk lhrkiqjA
mifLFkr Fks] xzkeokfl;ks ls gqbZ okrkZ ds nkSjku
tkudkjh es vk;k fd fd'kksj ij fd'kksjh ds lkFk
xyr dke djus ds ekeys es eqdnek ntZ gqvk FkkA
fd'kksj d{kk 12 ikl gSA oknh i{k fd'kksj ds gh xkao
es jgrs gSA ?kVuk ds ckjs es iwNus ij xzke okfl;ks us
dqN Hkh crkus ls euk dj fn;k] vkSj dgk fd ge
blls T;knk dqN ugh tkurs gSA xzke okfl;ks }kjk
gqbZ okrkZ ds v/kkj ij fd'kksj dk lekftd ifjos'k
vuqdwy izrhr ugh gksrk gSA

g0

ftyk izkscs'ku vf/kdkjh

lhrkiqj"

10. A bare perusal of the said report
makes it clear that it is nowhere
mentioned in it that, if the revisionist is
released on bail, he would come into
association with any known criminal or it
would expose him to moral, physical or
psychological danger or that his release
would defeat the ends of justice. Rather
the report of the Probation Officer
supports the case of the revisionist.

11. Perusal of Section 12 of the Act
of 2015, makes it clear that ordinarily, the
bail has to be granted to the juvenile and
the same can be rejected only when it
appears to the court concerned that either
of three conditions laid down in this
provision are in existence. The orders of
the Juvenile Justice Board and the
Sessions Court go to show that while
passing the same, both the courts below
have not, at all, considered the report of
Probation Officer in a correct manner and
rejected the application of the revisionist
in a mechanical manner simply by
reproducing few words of Section 12 of
the Act of 2015. Further, the courts below
have presumed many things of their own,
which is not part of record of Probation
Officer. These aforesaid two orders
passed by the Courts below do not stand
on the touchstone of the relevant legal
provisions.

12. From the material available on
record, it is also apparent that no proper
reason whatsoever has been assigned by
the Juvenile Justice Board on the basis of
which, application of the revisionist could
be rejected. Rather the report of the
Probation Officer is in favour of the
revisionist.

13. Considering the facts and
circumstances of the case and the report
of the Probation Officer, the present
revision is allowed. Orders impugned are
hereby set aside.

14. The revisionist, who has already
spent more than two years in Jail, is directed
to be released on bail of his guardian or parent
furnishing a bond in the sum of Rs.50,000/-
with one surety for the like sum to the
satisfaction of the concerned Juvenile Justice
Board. The revisionist is directed to appear
before the said Board on all the dates, as are
given to him.

15. It has been informed that there is no
progress in the trial and even the statement of
694 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecutrix has not been recorded. If this is
correct, the trial court is directed to conclude
the trial expeditiously because keeping pending
such trial for long period, would defeat the ends
of justice and various provisions of law.

16. It is made clear that this Court
has not expressed any opinion on merits
of the case and the trial court would be at
liberty to decide the trial strictly in
accordance with law on the basis of
evidence so adduced by the parties.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.07.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.

Criminal Revision No. 950 of 2017

Amit Kumar ...Revisionist
Versus
State of U.P. &Anr. ...Respondents

Counsel for the Revisionist:
Sri Sobha Nath Pandey

Counsel for the Respondents:
Ms Parul Kant

A.
Criminal
Revision-
Discharge
application u/s 227 Cr.P.C. rejected-
Section
306
and
506
IPC
-
love
relationship between the revisionist and
deceased - father of revisionist did not
approve of marriage - suicide out of
frustration and anger - ingredients of
abatement under Section 107 IPC not
made
out-
trial
futile
exercise-
revisionist discharged- revision allowed.

Chronological List of Cases Cited: -
1. (2002) 5 SCC 371 Sanju Alias Sanjay Singh
Sengar Vs. State of Madhya Pradesh

2.(2005) 2 SCC 659 Natai Dutta Vs. Satte of
W.B. (E-10)
(Delivered by Hon'ble Pritinker Diwaker, J.)

1. Heard Sri Shobh Nath Pandey,
learned counsel for the revisionist and Ms
Parul Kant, learned counsel for the State.
None for respondent no.2 though served.

2. Revision is formally admitted for
hearing and, with the consent of parties,
heard finally.

3. Challenge in the instant revision
is to the order dated 9.6.2017 passed by
the learned Additional Sessions Judge,
Faizabad in Sessions Trial No.257 of
2016, whereby the court below has
rejected the application as filed by the
revisionist-Amit Kumar under Section
227 of Cr PC, seeking discharge.

4. Brief facts of the present case are
that on 24.1.2016, FIR was lodged by Smt.
Sunita Devi, mother of deceased Priyanka,
alleging in it that on 20.1.2016, her daughter
had gone somewhere and returned at 5:00
am on 21.1.2016. When she asked her
daughter as to from where she is coming, her
daughter informed that throughout the night
she was with revisionist Amit Kumar, son of
Arjun Yadav (co-accused). She further
informed her that she loves Amit Kumar and
wants to marry him. Smt. Sunita Devi
disclosed this fact to her mother-in-law Smt.
Prema Devi and told her daughter that this is
not good. FIR further states that Smt. Sunita
Devi called Arjun Yadav, father of the
revisionist (co-accused) and informed him
about the affair between the revisionist and
deceased Priyanka. In reply, it was told by
Arjun Yadav that as long as he is alive,
revisionist and Priyanka cannot marry. She
states that saying this, co-accused Arjun
Yadav had left her house and upon hearing
his reply, at about 9:00 am, deceased
Priyanka bolted herself inside the room and