# "Ex" (changed name) Revisionist v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 701
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-23
- **Case number:** Criminal Revision No. 908 of 2022
- **Bench:** Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ex-changed-name-revisionist-v-state-of-u-p-ors-47778
- **Pages:** 6

## Headnote

Criminal Law - Protection of Children from
Sexual Offences Act, 2012-accused lured
victim of 6 years old-took him to a secret placeestablished unnatural relation-JJ Board after
giving him benefit of one year on lower sidemedical
report-19
years-on
the
date
of
incidence-accused was below 18 years-declared
juvenile-bail rejected-St.ment of victim u/s 161
and 164 Cr.P.C. St.d accused has made
unnatural sex with him-manner and nature of
crime-if juvenile released on bail-he shall fall of
in same hands-criminal bent of mind-not
entitled to bail.

Revision dismissed. (E-9)

List of Cases cited:

## Text

10 All. "Ex" (changed name) Vs. State of U.P. & Ors.
701
(2022) 10 ILRA 701
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2022

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Criminal Revision No. 908 of 2022

"Ex" (changed name) ...Revisionist
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionist:
Sri Narendra Deo Shukla, Sri Vivek Shukla

Counsel for the Respondents:
G.A.

Criminal Law - Protection of Children from
Sexual Offences Act, 2012-accused lured
victim of 6 years old-took him to a secret placeestablished unnatural relation-JJ Board after
giving him benefit of one year on lower sidemedical
report-19
years-on
the
date
of
incidence-accused was below 18 years-declared
juvenile-bail rejected-St.ment of victim u/s 161
and 164 Cr.P.C. St.d accused has made
unnatural sex with him-manner and nature of
crime-if juvenile released on bail-he shall fall of
in same hands-criminal bent of mind-not
entitled to bail.

Revision dismissed. (E-9)

List of Cases cited:

1. Criminal Revision No.379 of 2009 (Shiv Kumar
Vs St. of U.P.) decided on 22.12.2009

2. Criminal Revision No. 4141 of 2017
(Dharmendra Vs St. of U.P.) decided on
13.04.2018

3. Criminal Revision No.1693 of 2021 (Juvenile X
Vs St. of U.P.) decided on 22.02.2022

4. Criminal Revision No.860 of 2022 (X vs St. of
U.P.) decided 0n 21.03,2022
5. Criminal Revision No. 1852 of 2015 (Amit Vs
St. of U.P.) decided on 16.03.2016

6. Vijendra Kumar Mali Vs St. of U.P., 2003 (1)
J.I.C. 103

7. Om Prakash Vs St. of Raj. & anr.; (2012) 5
SCC 201, the Hon'ble Apex Court

8. Mangesh Rajbhar Vs St. of U.P. & anr.; 2018
(2) ACR 1941
(Delivered by Hon'ble Gajendra Kumar, J.)

1. Heard Sri N.D. Shukla, learned
counsel for the revisionist, Sri M.P.S. Gaur,
learned AGA for the State as well as
learned counsel for the respondent no. 2
and perused the record.

2. This criminal revision under
Section 102 of the Juvenile Justice (Care
and Protection of Children) Act, 2015, has
been filed on behalf of the minor 'X'
through his natural guardian/mother Anita
w/o Shri Prakash, R/o Village- Merdha,
Police Station Khutahan, District Jaunpur
with the prayer to admit the minor on bail
alongwith the prayer to set aside the order
dated 15.12.2021 passed by the Juvenile
Justice Board, Jaunpur and order dated
01.02.2022 passed by the Additional
District and Sessions Judge/Special Judge,
POCSO Act, Jaunpur in Misc. Case No.
102/2021 arising out of Case Crime No. 81
of 2021 under Section 377, 352, 504 IPC
and 3/4 POCSO Act, Police StationKhutahan, District-Jaunpur by which the
criminal appeal No.88 of 2021 was
rejected.

3. As per the version of the FIR
lodged by Sanjeet Singh (informant) father
of the victim, it is alleged that on
04.04.2021 at 5.00 P.M. the accused
revisionist and co-accused Nitin Tiwari
lured his son (victim) aged about 06 years
702 INDIAN LAW REPORTS ALLAHABAD SERIES
and took him to a secrete place where the
accused
persons
established
unnatural
relation with the son of the informant. At
that point of time, the informant was not
present at his home as he had gone to his
relatives' house and when he came back to
his house, his wife and the victim had
apprised him about the incident. Thereafter,
when he went to the house of the accusedpersons and made complaint, they abused
him in filthy-language and also threatened
him. On the basis of the said FIR, Case
Crime No. 0081/2021 under Sections 377,
352, 504 IPC and 3/4 POCSO Act was
registered and investigated upon. During
the investigation, after collection of some
evidence and recording of statement under
Section 161 Cr.P.C. of the witnesses, the
victim was medically examined and his
statements u/s 161 Cr.P.C. and 164 Cr.P.C.
were also recorded.

4. During the proceedings before the
Juvenile Justice Board, after giving him
benefit of one year on lowerside, though in
medical report his age on 12.11.2021 was
shown about 19 years, the revisionist was
found to be the age of below 18 years on
the date of the incident and was declared
juvenile vide order dated 18.11.2021. A
bail application through his guardian was
moved before the Juvenile Justice Board,
Jaunpur, but the same was rejected.
Thereafter, a criminal appeal No.88/2021
was preferred by the father and guardian of
the juvenile and the same was also
dismissed vide order dated 01.02.2022.

5. Aggrieved by the above orders, this
criminal revision has been preferred to set
aside the same and to admit the juvenile on
bail.

6. First and foremost contention is
that gravity of the offence is not relevant
consideration for refusing bail to the
juvenile as has been held by a coordinate
Benches of this Court in Criminal
Revision No.379 of 2009 (Shiv Kumar vs.
State of U.P.) decided on 22.12.2009,
Criminal Revision No. 4141 of 2017
(Dharmendra vs. State of U.P.) decided
on
13.04.2018,
Criminal
Revision
No.1693 of 2021 (Juvenile X vs. State of
U.P.) decided on 22.02.2022 and Criminal
Revision No.860 of 2022 (X vs State of
U.P.)
decided
0n
21.03,2022
and
Criminal Revision No. 1852 of 2015
(Amit vs. State of U.P.) decided on
16.03.2016.

7. In Criminal Revision No. 1852 of
2015 (Amit vs. State of U.P.) decided on
16.03.2016, the Court referred to the earlier
judgement in Vijendra Kumar Mali vs.
State of U.P., 2003 (1) J.I.C. 103, wherein
it was observed that in a number of
judgements, it has been categorically held
that bail to the juvenile can only be refused
if one of the grounds as provided in proviso
to Section 12(1) of the Juvenile Justice Act,
2015 exist. So far as the ground of gravity
is concerned, it is not covered under the
relevant provisions. If the bail application
of the juvenile was to be considered under
the provisions of Cr.P.C., there would have
been absolutely no necessity for the
enactment of the aforesaid Act. The Section
12 of the Act contains a non-obstante
clause, which indicates that the general
provisions of Cr.P.C. shall not apply.
Therefore, the gravity or seriousness of the
offence should not be taken as an obstacle
or hindrance to refuse the bail to delinquent
juvenile.

8. It is contended that there existed no
material to justify rejection of bail on the
grounds envisaged in Section 12 of the Act.
In view of the above provisions, the 'child
10 All. "Ex" (changed name) Vs. State of U.P. & Ors.
703
in conflict with law', who has been in
custody for quite some time deserves to be
released on bail otherwise, the purpose of
provisions of Section 12 of the Juvenile
Justice Act shall stand defeated. It is also
contended that care of the juvenile in a
child care institution cannot be preferred
over his care in his biological family.

9. Learned AGA and learned counsel
for the respondent no. 2 have opposed the
prayer for bail.

10. The Court is conscious of the fact
in case of Om Prakash vs. State of
Rajasthan and another; (2012) 5 SCC
201, the Hon'ble Apex Court, wherein the
Court has observed that the "Juvenile
Justice Act was enacted with a laudable
object of providing a separate forum or a
special court for holding trial of juvenile as
it was felt that child become delinquent by
force of circumstance and not by choice
and hence they need to be treated with care
and sensitivity while dealing and trying
cases involving criminal offence. It was
further observed that in cases when an
accused is involved in grave and serious
offence which he committed in a well
planned manner reflecting his maturity of
mind the court ought to be more careful.
Thus, the Hon'ble Apex Court has clearly
brought in focus the nature of crime,
conduct of an accused as reflected in the
method employed in the commission of
crime as a relevant consideration while
considering the matters of juvenile."

11. It may be noted that the Hon'ble
Apex Court gave this view in the background
of the facts that age of the juvenile as
determined by the courts below was not free
from doubts. In the circumstances, the Court
observed that where accused commits grave
and heinous offence and thereafter attempts
to take statutory shelter under the guise of
being a minor, a casual or cavalier approach
while recording his age, is not acceptable. It
is also observed that the shelter of the
principle of benevolent legislation of the
Juvenile Justice Act is meant for minors, who
are innocent law breakers. Nevertheless, in
my view, the nature of crime the juvenile was
found involved in, is again at the center stage.

12. In Mangesh Rajbhar vs. State of
U.P. and Another; 2018 (2) ACR 1941, a
coordinate Bench of this Court noted down
very important observations which I choose
to refer avidly:

"13. No doubt, the Juvenile Justice
Act is a beneficial legislation intended for
reform of the juvenile/child in conflict with
the law, but the law also demands that justice
should be done not only to the accused, but
also to the accuser."

25. It is not that this aspect of the
gravity of the offence has been considered
irrelevant to the issue of grant or refusal of
bail to a minor in the past and before the
present Act of 2015 came into force. In a
decision of this Court under the Juvenile
Justice Act, 2000 where the interest of the
society were placed seemingly not on a level
of playing field with the juvenile, this Court in
construing the provisions of Section 12 in
that Act that were pari materia to Section 12
of the Act in the matter of grant of bail to a
minor held in the case of Monu @ Moni @
Rahul @ Rohit v. State of U.P., 2011 (74)
ACC 353 in paragraph Nos. 14 and 15 of the
report as under:

"14. Aforesaid section no where
ordains that bail to a juvenile is a must in
all cases as it can be denied for the
reasons"......if there appears reasonable
grounds for believing that the release is
704 INDIAN LAW REPORTS ALLAHABAD SERIES
likely to bring him into association with
any known criminal or expose him to
moral, physical or psychological danger or
that his release would defeat the ends of
justice."

15. In the light of above statutory
provision bail prayer of the juvenile
revisionist has to be considered on the
surrounding
facts
and
circumstances.
Merely by declaration of being a juvenile
does not entitle a juvenile in conflict with
law to be released on bail as a matter of
right. The Act has a solemn purpose to
achieve betterment of juvenile offenders but
it is not a shelter home for those juvenile
offenders
who
have
got
criminal
proclivities and a criminal psychology. It
has a reformative approach but does not
completely
shun
retributive
theory.
Legislature has preserved larger interest of
society even in cases of bail to a juvenile.
The Act seeks to achieve moral physical
and psychological betterment of juvenile
offender and therefore if, it is found that the
ends of justice will be defeated or that goal
desired by the legislature can be achieved
by detaining a juvenile offender in a
juvenile home, bail can be denied to him.
This is perceptible from phraseology of
section 12 itself. Legislature in its wisdom
has therefore carved out exceptions to the
rule of bail to a juvenile."

13. I am in respectful agreement with
the above observations. Ordinarily, the
merits of the matter may not be important
where the Courts are inclined to give
benefit of bail as envisaged in Section 12 of
the Juvenile Justice Act, I am of the firm
view that nature of crime including other
merits of the matter may assume ample
significance when the Court has to form an
opinion about the ends of justice. It may be
noted that the phrase 'ends of justice',
cannot stand in a vacuum. The manner of
commission of the crime, the nature thereof
cannot be ignored while striking a balance
between the demands of justice of either of
the sides. Hence, it cannot be said that the
nature of the crime, the manner or
methodology
applied,
the
extent
of
involvement and evidence available are of
no relevance when judging the entitlement
of a juveniles to bail in cases where
heinous crimes are committed. The ends of
justice is undoubtedly a meaningful phrase
with multidimensional implications. The
Courts are under obligation to address the
concerns of both the sides and strike a
delicate balance between the competing
and often conflicting the demands of
justice. When viewing the matters of bail
from this particular angle of deciphering
the ends of justice not only the nature of
crime, but the manner of commission
thereof, methodology applied, the mental
state, the extent of involvement, the
evidence available shall be the factors to
reckon with. The phrase 'ends of justice'
may bring in within its interpretation such
factors which may otherwise seem not so
material or may be seemingly extraneous,
irrelevant or unimportant at first glance for
the purpose of applicability of last part of
the proviso to Section 12(1) of the Juvenile
Justice Act.

14. Following facts cannot go in
oblivion that alleged incident happened has
been done intentionally with a conspiracy
by the accused revisionist, which is evident
in the statements of the victim recorded
under Section 161 Cr.P.C. as well as 164
Cr.P.C. wherein, victim has specifically
stated that accused-revisionist has made
unnatural sex with him.

15. In nutshell, it can be inferred that
the juvenile was found to have complicity
10 All. "Ex" (changed name) Vs. State of U.P. & Ors.
705
in this frightful crime. The juvenile was
found to be the age of below 18 years on
the date of the occurrence, after giving him
benefit of one year on lower side, though in
medical report his age on 12.11.2021 was
shown about 19 years. It was a borderline
case where the accused was reaching the
age of adulthood. The manner, in which,
the crime was committed and the nature
thereof impels me to draw a conclusion that
in case the juvenile is released on bail, he
shall fall of in the same hands and environs
which most probably contributed towards
his criminal bent of mind.

16. This Court has considered the
rival submissions and perused the record. It
may be true that the Courts below have not
undertaken a careful exercise by evaluating
the
social
investigation
report
while
forming their opinion on the first of the two
dis-entitling parameters under the proviso
to Section 12(1) of the Act, that is to say,
the prospect of release bringing the child in
conflict with into association with some
known criminal or exposing him to moral,
physical or psychological danger. But, that
does not end the matter. It is a case where
the revisionist, though below the age of 18
years, has ravished a very young victim,
who is just six years old. About the factum
of the incident, there is reasonable
assurance at this stage, short of the charge
being tested at the trial. The prosecution is
consistent in the FIR lodged by the victim's
father, the statement of the victim and his
father, recorded by the police, under
Section 161 Cr.P.C. and the statement of
the prosecutrix, under Section 164 Cr.P.C.
before the Magistrate.

17. In view of the above, these remarks
may not be understood as the Court's
intendment to express any opinion on the
merits of the charge. All that this Court
wishes to say is that for the present, the Court
seized as it is of the bail matter, there is a
reasonable assurance about the charge being
prima facie credible. It is true that the merits
of the case or prima facie tenability of the
charge, like an adult, is not entirely decisive
to the fate of the bail plea. At the same time,
it is not altogether irrelevant. The gravity of
the charge, manner of its perpetration,
circumstances in which the offence is alleged
to have been committed, its immediate and
not so immediate impact on the society at
large and the locality, in particular, besides its
impact on the 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 dis-entitling
clause postulated under the proviso to Section
12(1) of the 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 the 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.

18. The case in hand shows that the
revisionist by his action, if true, has put the
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 the opinion of this
Court, it is a case where release of the child in
conflict with law would lead to ends of
justice being defeated.

19. The learned appellate Court and
the Board have given concurrent view and
have found him not at all entitled to bail.
706 INDIAN LAW REPORTS ALLAHABAD SERIES

20. For all the reasons recorded above
and considering the above-mentioned case
laws, I am of the considered opinion that it
is not a fit case to grant bail to the present
revisionist.

21. The revision is, accordingly,
dismissed.

22. Copy of the order be certified to
the Court concerned.

23. The Court/concerned Board is
directed to expedite the hearing and
conclude the same at the earliest without
getting
influenced
by
any
of
the
observations made in this order.
----------
(2022) 10 ILRA 706
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2022

BEFORE

THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Revision No. 1175 of 2022

Juvenile X ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Sharad Kumar Srivastava

Counsel for the Respondents:
G.A.

Civil Law - Juvenile Justice (Care and
Protetion of Children ) Act, 2015-Section
12(1)-informant alleges-accused penetrated his
finger-minor got bleeding-victim-minor-accused
declared minor-bail rejected on ground of
heinous crime-Juvenile accused is a student of
class IX-juvenile need strict discipline and
rehabilitation -no criminal history-reform is
possible-no ground to reject bail.
Bail granted. (E-9)

List of Cases cited:

1. Sanjay Chaurasia Vs St. of U.P. 2006 Cr.L.J.
2957

2. A. Juvenile Vs St. of Orissa, 2009 Cr.L.J., 2002

3. Sunil Kumar Sambhudayal Gupta Vs St. of
Mah. 2011 (72) ACC 699

4. Rahul Patel Vs St. of U.P. & anr., [2018 (1) JIC
357 (All)]
(Delivered by Hon'ble Narendra Kumar
Johari, J.)

1. The instant Revision has been filed
on behalf of Revisionist-Juvenile through
his father/natural guardian against the order
dated 19.01.2022 passed by Special Judge
(POCSO Act)/Additional Session Judge,
Fatehpur in Criminal Appeal No.53 of 2021
(Juvenile through natural guardian father
Vs. State of U.P.) and order dated
17.09.2021 passed by Juvenile Justice
Board, Fatehpur in Case No.111/2020,
arising out of Case Crime No.489/2020,
under Sections 376-A, B, 504, 506 I.P.C.
and Section 5/6 of POCSO Act, Police
Station- Bindki, District -Fatehpur.

2. The record indicates that notice has
sufficiently been served on opposite party
No.2 but none is present on behalf of the
opposite party No.2.

3. Heard learned counsel for the
revisionist, learned A.G.A. for the State
and perused the record.

4. The facts of the case in brief are
that on 18.11.2020 when the minor
daughter of informant had gone for grazing
the goats the revisionist/juvenile penetrated
his finger in her vagina which caused pain