# Irfan Ahmad (Juvenile) Revisionist v. State of U.P. & Anr

- **Citation:** (2022) 11 ILRA 917
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-11
- **Case number:** Criminal Revision No. 743 of 2022
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/irfan-ahmad-juvenile-revisionist-v-state-of-u-p-anr-47925
- **Pages:** 5

## Headnote

(A) Criminal Law - The Juvenile Justice
(Care and Protection of Children) Act,
2015 - Section 102 - Revision, Indian
Penal Code, 1860 - Sections 376, 504 &
506 - The Protection of Children From
Sexual Offences Act, 2012 - Section
3/4, The Schedule Castes And The
Schedule
Tribes
(Prevention
of
Atrocities ) Act , 1989 - Section 3(2)(v)
-
Revisional
jurisdiction
is
only
applicable
in
exceptional
situations
where
the
justice
delivery
system
requires
interference
to
correct
manifest illegalities or prevent a gross
miscarriage of justice - It is not an
appellate
forum
for
scrutinizing
evidence or exercising the jurisdiction
simply due to the factum of another
view - in the event of justice failure,
the
Revisional
power's
applicability
remains unaltered. (Para - 11)
918 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - Indian Penal Code,
1860 - Section 375 - Rape - extent of
penetration is immaterial and that the
perineum is part of the private parts,
which sheathes the urethra - even if the
penetration was very slight and was not
into vagina, the same will bring the act
within the definition of rape - word of
caution - whether the act fell within the
definition of rape, should be left to be
decided by the court concerned when the
matter is brought before it for hearing
afresh.(Para -14, 15)

Informant filed an F.I.R. - alleging a 7-year-old
girl was attacked by a juvenile - case was heard
by Juvenile Justice Board - final report was
accepted - protest petition dismissed - case was
challenged in Criminal Appeal - order was setaside - case was directed to be heard and
decided afresh - minor accused has come in
revision through his natural guardian/father.
(Para - 4)

HELD:- Appellate court's findings/observations
are not perverse, incorrect, or illegal and cannot
be interfered with by the Court's revisional
jurisdiction under section 102 of the Juvenile
Justice Act, 2015.(Para -16)

Revision dismissed. (E-7)

List of Cases cited:-

Jagannath Choudhary Vs Ramayan Singh, 2002
SCC (Cri) 1181

## Text

11 All. Irfan Ahmad (Juvenile) Vs. State of U.P. & Anr.
917
believe that in case the applicant is released
on bail, he would again indulge in
committing similar offences.

38. Moreover, nothing has been
placed on record which may give rise to a
reasonable apprehension that in case the
applicant is released on bail, he would
influence the witnesses.

39. No other material has been placed
by the respondent C.B.N., which may
indicate that the applicant is not entitled to
be released on bail.

40. In view the aforesaid discussion
and without making any observations on
merits of the case, I am of the view that the
applicant is entitled to be released on bail
pending conclusion of the trial. The bail
application is accordingly allowed.

41. Let the applicant - Pavan Kumar
Agrawal, be released on bail in C.B.N.
Case Crime No. 04 of 2021, under Sections
21/22/25/28/30/35 of Narcotic Drugs and
Psychotropic Substances Act, 1985, Police
Station
C.B.N.
New
Delhi,
on
his
furnishing a personal bond and two reliable
sureties each of the like amount to the
satisfaction of the court concerned subject
to following conditions:--

(i) The applicant will not tamper
with the evidence during the trial.

(ii)
The
applicant
will
not
influence any witness.

(iii) The applicant will appear
before the trial court on the dates fixed,
unless personal presence is exempted.

(iv) The applicant shall not
directly or indirectly make inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
to any police officer or tamper with the
evidence.

42. In case of breach of any of the
above conditions, the prosecution shall be
at liberty to move an application before this
Court seeking cancellation of bail.
----------
(2022) 11 ILRA 917
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.10.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 743 of 2022

Irfan Ahmad (Juvenile) ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Aftab Alam

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Juvenile Justice
(Care and Protection of Children) Act,
2015 - Section 102 - Revision, Indian
Penal Code, 1860 - Sections 376, 504 &
506 - The Protection of Children From
Sexual Offences Act, 2012 - Section
3/4, The Schedule Castes And The
Schedule
Tribes
(Prevention
of
Atrocities ) Act , 1989 - Section 3(2)(v)
-
Revisional
jurisdiction
is
only
applicable
in
exceptional
situations
where
the
justice
delivery
system
requires
interference
to
correct
manifest illegalities or prevent a gross
miscarriage of justice - It is not an
appellate
forum
for
scrutinizing
evidence or exercising the jurisdiction
simply due to the factum of another
view - in the event of justice failure,
the
Revisional
power's
applicability
remains unaltered. (Para - 11)
918 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - Indian Penal Code,
1860 - Section 375 - Rape - extent of
penetration is immaterial and that the
perineum is part of the private parts,
which sheathes the urethra - even if the
penetration was very slight and was not
into vagina, the same will bring the act
within the definition of rape - word of
caution - whether the act fell within the
definition of rape, should be left to be
decided by the court concerned when the
matter is brought before it for hearing
afresh.(Para -14, 15)

Informant filed an F.I.R. - alleging a 7-year-old
girl was attacked by a juvenile - case was heard
by Juvenile Justice Board - final report was
accepted - protest petition dismissed - case was
challenged in Criminal Appeal - order was setaside - case was directed to be heard and
decided afresh - minor accused has come in
revision through his natural guardian/father.
(Para - 4)

HELD:- Appellate court's findings/observations
are not perverse, incorrect, or illegal and cannot
be interfered with by the Court's revisional
jurisdiction under section 102 of the Juvenile
Justice Act, 2015.(Para -16)

Revision dismissed. (E-7)

List of Cases cited:-

Jagannath Choudhary Vs Ramayan Singh, 2002
SCC (Cri) 1181

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Aftab Alam, learned
counsel for the revisionist and learned
A.G.A. for the State. None appears on
behalf of the respondent no.2 despite
service of notice.

2. Perused the record.

3. This criminal revision has been
filed under section 102 of the Juvenile
Justice (Care and Protection of Children)
Act, 2015 challenging the order dated
15.01.2022 passed by Additional Sessions
Judge/Special
Judge
(POCSO
Act),
Azamgarh in a Criminal Appeal No.80 of
2017 by which the order of the Juvenile
Justice Board dated 19.01.2017 was setaside and the matter was remanded by the
appellate court for deciding it afresh in a
matter arising out of Case Crime No.17 of
2016, under sections 376, 504, 506 I.P.C.
and section 3/4 POCSO Act and section
3(2)(v) of SC/ST Act, Police Station-
Mubarakpur, District- Azamgarh.

4. Relevant facts leading to this
revision are as below:-

Informant- Indrawati lodged an
F.I.R. alleging that her daughter, aged about
7 years, was playing in front of her house
with other kids of the locality; the juvenile
took away her daughter in a cabin/housing
a tube-well and ravished her; she started
bleeding and cried in pain; hearing her
screams,
other
children
came
and
apprehended him at the spot; the informant
also reached at the place of occurrence;
however, the accused escaped, threatening
them; the victim was medically examined;
blood was spotted in her private parts; after
collection of the evidence a final report was
submitted by the Investigating Officer;
thereafter, on the protest petition moved by
the informant, the matter was heard by the
Juvenile Justice Board, where the final
report was accepted and the protest petition
was dismissed vide order dated 19.01.2017;
challenging the aforesaid order, Criminal
Appeal No.80 of 2017 was preferred before
the Special Judge (POCSO Act)/Children
Court, Azamgarh; after hearing both the
sides, the order of Juvenile Justice Board
was set-aside with a direction to Juvenile
Justice Board to hear and decide the matter
11 All. Irfan Ahmad (Juvenile) Vs. State of U.P. & Anr.
919
afresh, keeping in mind the observation of
the appellate court. Against the above order
of the appellate court dated 15.01.2022, the
minor accused has come in this revision
through his natural guardian/father.

5. The very first submission of
learned counsel for the revisionist is that
the order passed by the Juvenile Justice
Board was well reasoned, speaking and was
passed
on
appreciation
of
evidence
available and other facts and circumstances
of the case; the appellate court without any
good reasons took a different view of the
matter; it is a principle of law that where
two views are possible, the one favouring
the accused is to be preferred; but the
appellate court did not adhere to the
established principles of law and gave the
decision in a one sided and arbitrary
manner; the Juvenile Justice Board as well
as the appellate court relied on doubtful
evidence and also ignored the fact that the
prosecution story was improbable; the
appellate
court
ignored
the
material
contradictions in the statements of the
witnesses. The final report under section
169
Cr.P.C.
was
submitted
by
the
Investigating Officer of the rank of Deputy
Superintendent of Police, on sufficient
grounds; the protest petition was dismissed
by the Juvenile Justice Board after
considering all the aspects including
statements of witnesses, medical report,
statement of the Doctor and a detailed order
was passed; however, the appellate court
passed its order dated 15.01.2022 in a
casual and routine manner; hence, the order
of the appellate court is liable to be setaside.

6. First, I perused the order of the
Juvenile Justice Board. Passing a very
detailed order, the Juvenile Justice Board in
a sequential manner referred to each one of
parcha nos. I, II, IIA, IIB, III, IIIA, IV, IVA,
V, VI, VII, VIII and IX and also made
certain observations about the medical
reports of the accused as well as the victim
and thereafter observed that the conclusion
drawn by the Investigating Officer is
correct and is based on the evidence
collected; therefore, the final report is
accepted and the protest petition is
dismissed.

7. I went through the order passed by
the appellate court, which is under
challenge in this revision; after referring to
well-settled principles of law as regard the
options available to the court concerned
regarding final report, the appellate court
proceeded to refer to the statements of the
victim, aged about 7 years, wherein she
supported the prosecution version and said
"when I was playing with other kids of the
locality, the accused called me and carried
me of to near by tube-well cabin; I made a
noise, then my sister Sushmita and others
rescued me". The appellate court also
referred to the statement of the victim
recorded
under
section
164
Cr.P.C.,
wherein she reiterated the same statement
adding that she was subjected to sexual
assault. The appellate court, thereafter
referred to the statement of Sushmita, sister
of
the
victim,
who
supported
the
prosecution version and stated that on
hearing screams of her younger sister, she
rushed to the tube-well room and found the
juvenile in the act; he (juvenile) was beaten
then and there and the girl was rescued; the
appellate
court also referred to the
statement of mother of the victim, who
stated that she also reached at the spot after
hearing the noise; the accused escaped
from their clutches threatening them; she
also stated that her daughter was bleeding
from her private parts. After referring to the
aforesaid statements of three witnesses, the
920 INDIAN LAW REPORTS ALLAHABAD SERIES
appellate court, in my view, rightly
observed that the Juvenile Justice Board
dismissed the protest petition, ignoring the
statements of three prosecution witnesses
of facts; as far as medical evidence is
concerned, the appellate court while
noticing the fact of presence of blood on
perineum in the medical examination of the
victim, also observed that even if hymen
was found intact, commission of sexual
assault cannot be ruled out. In my view,
such an observation is not perverse or
incorrect.

8. Before I proceed further, I am
inclined to refer to the most vehement
argument put-forth before this Court; it is
contended that the medical evidence is not
only contradictory, but is also suspicious in
character, therefore, no reliance ought to
have been placed by the appellate court on
it.

9. The medical examination of the
victim was done after few hours of the
incident in which hymen was found intact,
no external injury and spermatozoa found
in the vaginal smears but blood was found
on perineum. It may be noted that this is
not the case of prosecution that the accused
was caught after the act rather the case is
that he was caught in the act. My view is
that necessary inference can be drawn in
these circumstances and probability of
sexual assault cannot be ruled out however
whether it amounted to rape or attempt
thereof, is for court concerned to decide.
The opinion given by the appellate court in
this regard cannot be categorized as
perverse; the appellate court also rightly
took note of the injuries found on the
person of juvenile in the light of
prosecution case that he was caught in the
act at the spot and was beaten by the people
gathered there.

10. I minutely perused the impugned
order; the appellate court relied on the
evidence given by the three prosecution
witnesses of fact; mother of the victim,
sister of the victim, who caught the accused
in the act and who reached the spot on
hearing screams of her seven years old
sister and the victim herself as well as her
medical report and as also the injuries of
the accused, who as per prosecution version
was beaten by the persons gathered there
and drew a conclusion that the order of the
Juvenile Justice Board is against the law
and facts and therefore set it aside.

11. The Hon'ble Apex Court in
Jagannath Choudhary vs. Ramayan
Singh, 2002 SCC (Cri) 1181, while
dealing with the powers of the revisional
court held as below:-

"It is not to be lightly exercised
but only in exceptional situations where
the
justice
delivery
system
requires
interference for correction of a manifest
illegality
or
prevention
of
a gross
miscarriage of justice. In Nosibolla,
Logendranath Jha and Chinnaswamy
Reddy as also in Thakur Das v. State of
M.P., this Court with utmost clarity and in
no uncertain terms recorded the same. It
is not an Appellate forum wherein
scrutiny of evidence is possible; neither
the Revisional jurisdiction is open for
being exercised simply by reason of the
factum of another view being otherwise
possible. It is restrictive in its Application
though in the event of there being a
failure of justice there can be said to be no
limitation as regards the applicability of
the Revisional power."

12. It may be noted that while
exercising jurisdiction under section 397
Cr.P.C., the High Court is empowered to
11 All. Fida Hussain Vs. State of U.P. & Ors.
921
satisfy itself as to correctness, legality or
propriety of any finding given by the courts
below. While under section 102 of the
Juvenile Justice Act, the High Court is
empowered to call for record of any
proceeding to satisfy itself as to legality or
propriety of any order and pass such order in
relation thereof as it thinks fit. Two words,
legality and propriety, are common in the
revisional powers as exercisable under
section 397 Cr.P.C. and as exercisable by the
High Court under section 102 of the Juvenile
Justice Act, 2015 both. Thus, it is clear that
the principles underlying the exercise of
revisional powers under section 397 Cr.P.C.
are also applicable to a large extent when the
revisional powers have to be exercised under
section 102 of the Juvenile Justice Act, 2015.

13. The Juvenile Justice Board though
referred to the statements of the witnesses
supporting the prosecution case, but did not
relied on them instead relied on the evidence
given by the witnesses who were essentially
not the witnesses of the fact and also gave
importance to the fact of lack of any external
injury,
absence
of
spermatozoa
in
pathological test and the fact of finding the
hymen intact. In my view, the appellate court
gave good reasons for not finding the order of
the Juvenile Justice Board sustainable on
facts and on law. In these circumstances, the
approach of the appellate court in giving a
different view cannot be called improper or
illegal.

14. A submission has also been made
before this Court that this case does not fall
under the definition of section 375 I.P.C.
Confronting this submission, learned A.G.A.
has drawn the attention of this Court to the
offence of rape as defined under section 375
I.P.C., which said that:-

"375. Rape- A man is said to
commit "rape" if he-

(a) penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so with
him or any other person."

15. It is important to notice that the
extent of penetration is immaterial and that
the perineum is part of the private parts,
which sheathes the urethra. Hence, even if the
penetration was very slight and was not into
vagina, the same will bring the act within the
definition of rape. However, I add a word of
caution here that whether the act fell within
the definition of rape, should be left to be
decided by the court concerned when the
matter is brought before it for hearing afresh.

16. On the basis of above discussion, I
am of the view that the findings/observations
given by the appellate court are not perverse,
incorrect or illegal and the same is not liable
to be interfered in exercise of revisional
jurisdiction of this Court under section 102 of
the Juvenile Justice Act, 2015.

17. Accordingly, present revision is
dismissed at this stage.

18. Copy of the order be transmitted to
the court concerned.
----------
(2022) 11 ILRA 921
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 1514 of 2009

Fida Hussain ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist: