# Jiya-Uddin (Minor) Revisionist v. State of U.P. & Anr

- **Citation:** Criminal Revision No. 1234 of 2018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-25
- **Case number:** Criminal Revision No. 1234 of 2018
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jiya-uddin-minor-revisionist-v-state-of-u-p-anr-46295
- **Pages:** 11

## Headnote

A. Criminal Law- Juvenile Justice (Care
and Protection of Children) Act 2015section 12, 15 and 18(3)- Code of Criminal
Procedure,1973-Section 397/401 & Indian
Penal Code,1860-Sections 376 application-
grant of bail to juvenile-rejection of bail by
lower
court-However,
Section
12(1)
provides for bail to a child in conflict with
law-section 15 and 18(3) are not ejusdem
generis with that of section 12-hence,
preliminary assessment is not required to
be made at the time of considering bail
application u/s 12 of the Act-accusedjuvenile
granted
bail
on
his
father
furnishing a personal bond with two
sureties.(Para 3 to 35)

Section 12(1) of juvenile justice act provides for
If release is likely to bring that person into
association with any known criminal or be
exposed to any moral, physical or psychological
danger or the person's release would defeat the
ends of justice. Board shall record the reasons
for denying bail.(Para 22)

The revision is allowed. (E-6)

List of Cases Cited:-

## Text

1064 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2020)03-05ILR A1064
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.02.2020

BEFORE

THE HON'BLE MANISH MATHUR, J.

Criminal Revision No. 1234 of 2018

Jiya-Uddin (Minor) ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Punit Kumar Shukla, Amitchaudhary
(amicus curiae)

Counsel for the Opposite Parties:
Govt. Advocate

A. Criminal Law- Juvenile Justice (Care
and Protection of Children) Act 2015section 12, 15 and 18(3)- Code of Criminal
Procedure,1973-Section 397/401 & Indian
Penal Code,1860-Sections 376 application-
grant of bail to juvenile-rejection of bail by
lower
court-However,
Section
12(1)
provides for bail to a child in conflict with
law-section 15 and 18(3) are not ejusdem
generis with that of section 12-hence,
preliminary assessment is not required to
be made at the time of considering bail
application u/s 12 of the Act-accusedjuvenile
granted
bail
on
his
father
furnishing a personal bond with two
sureties.(Para 3 to 35)

Section 12(1) of juvenile justice act provides for
If release is likely to bring that person into
association with any known criminal or be
exposed to any moral, physical or psychological
danger or the person's release would defeat the
ends of justice. Board shall record the reasons
for denying bail.(Para 22)

The revision is allowed. (E-6)

List of Cases Cited:-
1. Radhika(juvenile) Vs. St. Fo U.P. Crl. Appeal
No. 4418 of 2019

2. Mangesh Rajbhar Vs. St. Of U.P. & Anr.
(2018) 6 ADJ 60

3. Santosh Vs. St. Of U.P. & Ors. Crl. Appeal No.
5814 of 2018

4. Bharat Aluminium Co. Vs. Kaiser Aluminium
Technical Services (2012) 9 SCC 552

5. Shiv Shakti Cooperative Housing Society

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Amit Chaudhary,
learned amicus curiae, Mr. Punit Kumar
Shukla, learned counsel for revisionist and
Mr. Aniruddh Kumar Singh, learned
Additional
Government
Advocate
appearing on behalf of State. As per report
of
Chief
Judicial
Magistrate
dated
17.12.2018, notices were served personally
upon Opposite Party no.2 but no one has
put in appearance on his behalf.

2. Present criminal revision has been
filed against order dated 04.05.2018 passed
by Juvenile Justice Board, Sitapur in
Criminal Miscellaneous Case No.57 of
2017 bearing Case Crime No.153 of 2017,
under Section 376 IPC, Police Station
Mishrikh, District Sitapur. Under challenge
is also the order dated 25.08.2018 passed
by IIIrd Additional Sessions Judge, Sitapur
in Criminal Appeal No.42 of 2018
upholding the order of rejection. Present
case is where the revisionist was aged
between 16 to 18 years, i.e. revisionist was
aged about 16 years one month and 21
days.

3. Learned AGA at the very outset has
submitted that the Juvenile Justice (Care
and Protection of Children) Act has
undergone a major change in the year 2015
3-5 All. Jiya Uddin (Minor) Vs. State of U.P. & Anr.
1065
specifically with regard to Sections 15 and
18 of the said Act which would have a
bearing on consideration of bail application
filed by a child in conflict with law under
Section 12 of the said Act. It has been
submitted that Section 15 now provides for
a preliminary assessment into heinous
offences by the Juvenile Justice Board and
in case of a heinous offence alleged to have
been committed by a child who has
completed or is above the age of 16 years, a
preliminary
assessment
regarding
his
mental and physical capacity and ability to
understand consequences of offence which
he allegedly committed is required prior to
consideration of bail application of such a
child i.e. filed under Section 12 of the Act.
Learned counsel has drawn attention to
Section 2(33) of the Act in which "heinous
offences" have been described as those
which include offences for which minimum
punishment under the Indian Penal Code or
any other law for the time being in force is
imprisonment for seven years or more. The
upshot of arguments raised by learned
AGA therefore is that while considering a
bail application of such a child who has
completed or is over the age of 16 years as
on the date of occurrence of incident, not
only the factors indicated in Section 12 of
the Act are required to be seen but a
preliminary assessment as contemplated
under Section 15 and consequent orders
passed under Section 18(3) of the Act are
also required to be considered by the Board
prior to passing any final order on a bail
application filed by such a child under
Section 1

4. Learned counsel has relied upon
judgment rendered by this Court in the case of
Radhika (Juvenile) vs. State of U.P. in
Criminal Appeal No.4418 of 2019 and other
connected matters. Reliance has also been
placed on the judgment rendered by this Court
in the case of Mangesh Rajbhar vs. State of
U.P. & Another reported in 2018(6) ADJ 60.

5. Mr. Amit Chaudhary, learned Amicus
Curiae assisted by Mr. Punit Kumar Shukla,
learned counsel for revisionist has refuted the
submissions advanced by learned AGA with
the submission that provisions of Sections 15
and 18(3) of the Act are completely different
from provisions indicated in Section 12 of the
Act. Attention is drawn to Section 18 Subsection (3) whereby the Juvenile Justice Board
after preliminary assessment under Section 15
is required to pass an order that there is need for
trial of the child as an adult but the said
provisions are not to be found in Section 12
which has been kept completely separate from
the changed provisions incorporated in the Act.
As such, it has been submitted that the bail
application of a child in conflict with law who
has completed or is over the age of 16 years as
on the date of incident is required to be seen
only in terms of provisions of Section 12 of the
Act without any reference to Sections 15 and
18(3) of the Act. Learned counsel has relied
upon the judgment rendered by this Court in the
case of Santosh vs. State of U.P. & Ors.
rendered in Criminal Appeal No.5814 of 2018.

6. Upon consideration of submissions
advanced by learned counsel for parties and
perusal of record, it is evident that in case of a
child in conflict with law as defined under
Section 2(13) of the Act who is alleged to have
committed an offence and has either completed
or is over the age of 16 years, application for
bail is required to be filed under Section 12 of
the Act which is as follows:-

"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
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
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 sub-section (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 fulfil 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."

7. Under Section 15 of the Act, a
preliminary
assessment
into
heinous
offences is required to be made by Juvenile
Justice Board and is particularly relevant in
case of heinous offence alleged to have
been committed by a child who has
completed or is aged more than 16 years. In
such a situation, the Board is required to
conduct a preliminary assessment regarding
his mental and physical capacity to commit
such offence, ability to understand the
consequences of offence and circumstances
under which he has allegedly committed
the offence. The said assessment is required
to be made in order to ensure compliance
of provisions of Section 18(3) of the Act.
Sections 15 and 18 are as follows:-

"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
3-5 All. Jiya Uddin (Minor) Vs. State of U.P. & Anr.
1067
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;

(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 behaviour 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 behaviour and child's wellbeing 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,
behaviour
modification therapy, and psychiatric support
during the period of stay in the special home:

Provided that if the conduct and
behaviour 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
1068 INDIAN LAW REPORTS ALLAHABAD SERIES

(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."

8. A conjoint reading of Sections 15 and
18(3) of the Act makes it evident that it is only
when a heinous offence as defined under
Section 2(33) of the Act is alleged to have been
committed by a child who has completed or is
above the age of 16 years that a preliminary
assessment is required to be made. The
wordings of said section make it apparent that
such a preliminary assessment is required in
order to enable passing of order in accordance
with provisions of Section 18(3) of the Act.
Proviso to Sub-section (1) of Section 15 enables
the Board to take assistance of experienced
psychologists or psycho-social workers or other
experts. Explanation thereof also clarifies the
fact that the preliminary assessment is not a trial
but is only in order to assess the capacity of
such child to commit and understand the
consequences of alleged offence.

9. Sub-section (2) of Section 15 provides
that where the Board is satisfied on a
preliminary assessment that the matter should
be disposed of by the Board, then the
procedure, as far as may be for trial in summons
case under the Code of Criminal Procedure,
1973 is required to be followed.

10. The entire purpose of a preliminary
assessment under Section 15 of the Act is only
to enable the Board to pass relevant orders
under Section 18 (3) of the Act which provides
that the Board after preliminary assessment
may pass an order that there is need for trial of
the said child as a result and consequently may
order transfer of trial of case to the Children's
Court having jurisdiction.

11. It is a relevant factor that the
preliminary assessment required to be
made under Section 15 of the Act is
only as a guide for the purposes of
passing of relevant orders by the Board
under Section 18(3), which in its turn is
only to enable the Board to pass an
order that there is need for trial of the
said child as an adult. In case such an
order is passed treating the child as an
adult, the Board is required to order
transfer of the trial of the case to
Children's Court. It is thus evident that
the entire purpose of passing an order
by Board under Section 18(3) is for the
purposes of trial. Neither Section 15 nor
Section 18(3) of the Act indicates that
such provisions are to be followed even
in
case
of
consideration
of
an
application for bail under Section 12 of
the Act. It is also a relevant fact that
despite aforesaid provisions having
been incorporated in Sections 15 and
18, there is no such consequential
provision in Section 12 of the Act
pertaining to grant of bail to such a
child.

12. With regard to interpretation
of statute, it is settled law that statute is
an edict of the legislature and where the
words of statute are clear without any
ambiguity and the intention of the
legislature is clearly conveyed, there is
no scope for the court to innovate or
take upon itself the task of altering the
statutory provisions by breathing into
3-5 All. Jiya Uddin (Minor) Vs. State of U.P. & Anr.
1069
the provisions, words which have not
been expressly incorporated by the
legislature.

13. It is only in case where the words
of statute are ambiguous or a reading of
which clearly indicates that it is a case of
'casus omissus' that the court can interpret
the provisions incorporated in statute.
Hon'ble the Supreme court referring to
various pronouncements in the case of
Bharat
Aluminium
Company
versus
Kaiser Aluminium Technical Services Inc.
reported in (2012) 9 SCC 552 has held that
the court must proceed on the footing that
the legislature intended what it has said.
Even where there is a 'casus omissus' it is
for the others than the courts to remedy the
defect. The relevant paragraph in the case
of Bharat Aluminium Company (supra) is
as follows:-

"65. Mr Sorabjee has also rightly
pointed out the observations made by Lord
Diplock in Duport Steels Ltd. [(1980) 1
WLR 142 : (1980) 1 All ER 529 (HL)] In
the aforesaid judgment, the House of Lords
disapproved the approach adopted by the
Court of Appeal in discerning the intention
of the legislature; it is observed that: (WLR
p. 157 C-D)

"... the role of the judiciary is
confined to ascertaining from the words
that
Parliament
has
approved
as
expressing its intention what that intention
was, and to giving effect to it. Where the
meaning of the statutory words is plain and
unambiguous it is not for the Judges to
invent fancied ambiguities as an excuse for
failing to give effect to its plain meaning
because they themselves consider that the
consequences of doing so would be
inexpedient, or even unjust or immoral. In
controversial matters such as are involved
in industrial relations there is room for
differences of opinion as to what is
expedient, what is just and what is morally
justifiable. Under our Constitution it is
Parliament's opinion on these matters that
is paramount." (emphasis supplied)

In the same judgment, it is further
observed: (WLR p. 157 F)

"... But if this be the case it is for
Parliament, not for the judiciary, to decide
whether any changes should be made to the
law as stated in the Acts...." (emphasis
supplied)"

14. The principles with regard to
'casus omissus' and its implementation have
also been dealt with by Hon'ble the
Supreme Court in the case of Shiv Shakti
Cooperative Housing Society in which the
relevant paragraphs are as follows:-

"19. It is a well-settled principle
in law that the court cannot read anything
into a statutory provision which is plain
and unambiguous. A statute is an edict of
the legislature. The language employed in a
statute is the determinative factor of
legislative intent. Words and phrases are
symbols that stimulate mental references to
referents. The object of interpreting a
statute is to ascertain the intention of the
legislature enacting it. (See Institute of
Chartered Accountants of India v. Price
Waterhouse [(1997) 6 SCC 312 : AIR 1998
SC 74] .) The intention of the legislature is
primarily to be gathered from the language
used, which means that attention should be
paid to what has been said as also to what
has not been said. As a consequence, a
construction which requires for its support,
addition or substitution of words or which
results in rejection of words as meaningless
has to be avoided. As observed in Crawford
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
v. Spooner [(1846) 6 Moo PCC 1 : 4 MIA
179] courts cannot aid the legislatures'
defective phrasing of an Act, we cannot add
or mend, and by construction make up
deficiencies which are left there. (See State
of Gujarat v. Dilipbhai Nathjibhai Patel
[(1998) 3 SCC 234 : 1998 SCC (Cri) 737 :
JT (1998) 2 SC 253] .) It is contrary to all
rules of construction to read words into an
Act unless it is absolutely necessary to do
so. [See Stock v. Frank Jones (Tipton) Ltd.
[(1978) 1 All ER 948 : (1978) 1 WLR 231
(HL)] ] Rules of interpretation do not
permit courts to do so, unless the provision
as it stands is meaningless or of a doubtful
meaning. Courts are not entitled to read
words into an Act of Parliament unless
clear reason for it is to be found within the
four corners of the Act itself. (Per Lord
Loreburn, L.C. in Vickers Sons and Maxim
Ltd. v. Evans [1910 AC 444 : 1910 WN 161
(HL)] , quoted in Jumma Masjid v.
Kodimaniandra Deviah [AIR 1962 SC 847]
.)"

"23.
Two
principles
of
construction -- one relating to casus
omissus and the other in regard to reading
the statute as a whole -- appear to be well
settled. Under the first principle a casus
omissus cannot be supplied by the court
except in the case of clear necessity and
when reason for it is found in the four
corners of the statute itself but at the same
time a casus omissus should not be readily
inferred and for that purpose all the parts
of a statute or section must be construed
together and every clause of a section
should be construed with reference to the
context and other clauses thereof so that
the construction to be put on a particular
provision makes a consistent enactment of
the whole statute. This would be more so if
literal construction of a particular clause
leads to manifestly absurd or anomalous
results which could not have been intended
by the legislature. "An intention to produce
an unreasonable result", said Danckwerts,
L.J. in Artemiou v. Procopiou [(1966) 1 QB
878 : (1965) 3 All ER 539 : (1965) 3 WLR
1011 (CA)] (All ER p. 544 I), "is not to be
imputed to a statute if there is some other
construction available". Where to apply
words literally would "defeat the obvious
intention of the legislation and produce a
wholly unreasonable result", we must "do
some violence to the words" and so achieve
that obvious intention and produce a
rational construction. Per Lord Reid in
Luke v. IRC [1963 AC 557 : (1963) 1 All
ER 655 : (1963) 2 WLR 559 (HL)] where at
AC p. 577 (All ER p. 664 I) he also
observed: "This is not a new problem,
though our standard of drafting is such that
it rarely emerges."

15. As per Maxwell's interpretation of
statutes, the four main rules to interpret a
statute are the literal, golden, mischief and
the integrated approach, known as the
purposive approach. While the literal rule
uses plain ordinary meaning of words, the
golden rule is an extension thereof and is
brought into play only where the literal rule
creates an absurdity.

16.

Regarding,
the
purposive
approach, Lord Denning in the case of
Notham vs London Borough of Barnet
(1978)1 WLR 220 has held the purposive
approach being one that will promote
general legislative purpose underlying the
provisions.

17. In addition to aforesaid statutory
interpretations, three rules are also required
to be kept in mind which are; ejusdem
generis- meaning of same kind, Noscitur a
sociis- meaning a word is known by the
company it keeps, and expressio unius est
3-5 All. Jiya Uddin (Minor) Vs. State of U.P. & Anr.
1071
exclusio aterius - meaning where express
mention of one thing excludes other.

18. With regard to literal and
purposive interpretation of statute, it is seen
that statement of objects and reasons of the
Act indicate that the legislation was
required to be enacted in view of several
issues such as incidence of abuse of
children
in
institutions,
inadequate
facilities, quality of care and rehabilitation
measures in homes, high pendency of cases
etc. due to which enactment of the
legislation was required to ensure proper
care, protection, development, treatment
and social integration of children in
difficult circumstance by adopting a child
friendly approach keeping in view the best
interest of the children in mind.

19. Upon applicability of the literal
rule of interpretation of statute read with
the purposive intention, it is clear that the
legislation was enacted keeping in view the
best interest of the child in mind in order to
ensure their proper care and social reintegration, which cannot be served by
keeping the child interminably under
custody while awaiting the result of
detailed evaluation under Section 15 and
consequent order under Section 18(3) of
the Act.

20.

Considering
the
fact
that
provisions of Section 15 read with Section
18(3) of the Act are not to be found in
Section 12 of the Act, it cannot be said that
the provisions incorporated in Section 15
and Section 18(3) are ejusdem generis with
that of Section 12.

21. In the present case, it is easily
seen that the wordings of all the three
sections separately are quite clear and
unambiguous therefore not requiring any
additional supplement of words. The
legislature in its wisdom has clearly not
amended Section 12 of the Act as a
consequence to provisions incorporated in
Sections 15 and 18(3) of the Act. As such,
the provisions of Sections 15 and 18 (3)
cannot be read into Section 12 of the Act.
As a consequence, it cannot be said that a
preliminary assessment under Section 15 is
required to be made at the time of
consideration of bail application under
Section 12 of the Act.

22. This Court in the case of Santosh
(supra) has also held as follows:

"9. It is pertinent to mention here
that Section 12 of the Juvenile Justice
(Care and Protection of Children) Act has
not been amended so far as the parameters
and yardstick for granting bail to the
juvenile-accused is concerned. Therefore,
while rejecting the bail application of such
juvenile, it cannot be the criteria that the
alleged offence is of serious and heinous
nature. The order must show that the grant
of bail to the juvenile accused is against his
interest as there is possibility of his being
associated with known criminals, or there
is some sort of moral, physical or
psychological danger to him or there is
likelihood of end of justice being defeated.
All
these
conditions
have
been
incorporated in law in order to ensure
justice to the juvenile."

23. In the case of Radhika (Juvenile)
(supra), this Court was considering the
question as to whether appeal filed under
Section 101(5) of the Act is an appropriate
remedy for appellants after getting their
respective bail application rejected by
Children's Court/ Special Sessions Judge,
Protection
of
Children
From
Sexual
Offences Act. Second question pertained to
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
whether while deciding application of a
juvenile between the age group of 16 to 18
years, the seriousness, gravity of offence
and respective role in commission of crime
would also be a determining factor while
releasing them on the proceedings opted by
them. Learned Single Judge while deciding the
second question has clearly held that while
deciding bail of such a delinquent ranging
between the age group of 16 to 18 years, it
would be discretionary upon the Court to take
into account factors regarding his mental,
physical capacity, ability to understand the
gravity of a heinous offence and respective
participation in crime and circumstances for the
particular grave and serious offence in addition
to grounds provided under Section 12 (proviso)
of the Act. It has been held that all these factors
too are determinative factors while adjudicating
the bail applications of juvenile offenders in the
age group of 16 to 18 years since not
considering the said factors would reduce the
object of present legislation to naught.

24. This Court in the case of Mangesh
Rajbhar (supra) after considering provisions of
Sections 15 and 18 of the Act has also held that
(gravity of offence is certainly relevant though
not decisive. It is this relevance amongst the
other factors where gravity of offence
committed works and serves as a guide to grant
or refuse bail in conjunction with other relevant
factors mentioned in proviso to Section 12(1) of
the Act particularly on the ground that release
of such a juvenile would defeat the ends of
justice). It has further been held that orders
under Section 18 although are concerned with
final orders to be made while dealing with the
case of juvenile can serve as a guide to exercise
of power for grant of bail to juvenile.

25. The aforesaid two judgments have
clearly taken into account the conditions
required to be considered while adjudicating the
bail application of juvenile under Section 12 of
the Act. Particular emphasis has been laid upon
the third condition that release of such a
juvenile would defeat the ends of justice. It is
under this provision of the proviso that both the
judgments have held that gravity of charges and
circumstances, under which a juvenile has
allegedly committed an offence, has been held
to be required to be seen at the time of
consideration of bail application.

26. Once seen in the light of proviso
to Section 12 of the Act, particularly the
conditions indicated in Section 12 that the
release of a juvenile between the age of 16
to 18 years and accused of a heinous
offence would defeat the ends of justice,
definitely the gravity of charges leveled
against the person would be required to be
seen since the words would 'defeat the ends
of justice' cannot be seen in isolation or in a
vacuum. In order for the Board or the Court
of competent jurisdiction to arrive at a
conclusion that release of a juvenile
accused of heinous offence would defeat
the ends of justice, necessarily the gravity
of charges and circumstances, surrounding
involvement of juvenile in the alleged
heinous offence would be a material factor.

27. Keeping the aforesaid in mind,
however it is made clear that the aforesaid
factors that are to be required to be kept in
mind would be completely different from
the preliminary assessment required to be
made under Section 15 of the Act. The
factors regarding gravity of charge and
circumstances
surrounding
a
heinous
offence is only for the purpose of
understanding whether release of such a
juvenile would defeat the ends of justice.
For consideration of a bail application
under Section 12 of the Act, a complete
preliminary assessment under Section 15 of
the Act is neither required to be done nor
considered.
3-5 All. Jiya Uddin (Minor) Vs. State of U.P. & Anr.
1073

28. In the backdrop of aforesaid,
present
criminal
revision
is
being
adjudicated in the absence of any such
report under Section 15 of the Act.

29. In the present case, the juvenile
has been accused under Section 376 IPC.
Learned
counsel
for
revisionist
has
submitted that as per reading of the first
information report, incident is said to be of
24.5.2017 when the revisionist is said to
have outraged the modesty of daughter of
complainant.
Learned
counsel
for
revisionist
submits
that
medical
examination was conducted on the very
same day but does not corroborate the
allegations levelled under Section 376 IPC.
It has also been submitted that in the trial,
the prosecutrix has already turned hostile. It
has been submitted that revisionist is in
custody since 26.5.2017 and more than two
and half years have passed since then.

30. Learned AGA appearing on behalf
of State has opposed the bail application on
the ground that a perusal of medical report
will make it apparent that the medical
examination was conducted on the very
same day and clearly indicates injuries
upon the prosecutrix. It has also been
submitted that revisionist was named in the
FIR which was corroborated in the
statement recorded under Section 161
Cr.P.C.

31. Upon consideration of factual
situation and submissions advanced by
learned counsel for parties, it is apparent
that revisionist at the time of occurrence of
alleged incident was aged more than 16
years. Although the charge levelled against
revisionist is quite grave being under
Section 376 IPC but it is also a relevant
factor that trial has not yet concluded and
evidence is ongoing. Revisionist has been
in custody for more than two and half years
since 26.05.2017.

32. The report of District Probation
Officer, states that the revisionist does not
have any criminal history and has studied
uptill Class IX. Nothing adverse regarding
his social behaviour has been indicated in
the said report upon questioning of
villagers.

33. A perusal of orders impugned
indicates that bail has been rejected only
considering the gravity of charges levelled
against
revisionist
without
seriously
adverting to the provisions of Section 12 of
the Act required to be considered for
purposes of bail. There is no material on
record to indicate that upon release from
bail, the revisionist would be brought into
association with any known criminal or
would be exposed to moral physical or
psychological danger. That his release
would defeat the ends of justice cannot be
seen in isolation only with regard to gravity
of charges but has to be considered in terms
of the report of District Probation Officer
as well. Neither of the orders impugned nor
any material on record indicate that release
of revisionist would defeat the ends of
justice.

34. In view of fact that there is no
material on record to indicate that release
of revisionist would bring him into
association with any known criminal or
would expose him to moral physical
psychological danger or would defeat the
ends of justice, the revision is allowed and
order dated 04.05.2018 passed by Juvenile
Justice
Board,
Sitapur
in
Criminal
Miscellaneous Case No.57 of 2017 bearing
Case Crime No.153 of 2017, under Section
376 IPC, Police Station Mishrikh, District
Sitapur
rejecting
bail
application
of
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
Revisionist and judgment and order dated
25.08.2018 passed by IIIrd Additional
Sessions Judge, Sitapur in Criminal Appeal
No.42 of 2018 are hereby set aside.

35. Let revisionist Jiya-Uddin be
enlarged on bail in Criminal Miscellaneous
Case No.57 of 2017 bearing Case Crime
No.153 of 2017, under Section 376 IPC,
Police Station Mishrikh, District Sitapur
subject to executing personal bond by his
father/ guardian along with two sureties in
the like amount to the satisfaction of the
court/board
concerned.
The
father/
guardian shall also furnish an undertaking
that he will keep the revisionist-applicant
under his effective control and shall make
every endeavour to ensure that the
revisionist should not commit any illegal or
immoral act and the revisionist should not
join the association with any known
criminal.

36. Before parting with the case, this
Court would
like
to
appreciate
the
assistance
rendered
by
Mr.
Amit
Chaudhary, learned counsel, who was
appointed amicus curiae in this matter vide
order dated 21.1.2020. Registry is directed
to pay Rs.20,000/- as fee to him for
rendering assistance to this Court. Senior
Registrar,
High
Court
shall
ensure
compliance of same.
----------
(2020)03-05ILR A1074
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2020 &
11.02.2020

BEFORE

THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Revision No. 4033 of 2019
&
Crl. Misc. Correction Application No. 2 of 2020
Rakesh Dhar Tripathi ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sushma Singh, Sri Dileep Kumar, Sri
Manish Singh

Counsel for the Opposite Party:
A.G.A., Sri Lokesh Kumar Dwivedi

A.
CriminalLaw-
Prevention
of
Corruption Act,1988-Sections 13(1)(e)
r/w
13(2)-
Code
of
Criminal
Procedure,1973-Section
397/401
-
application-rejection
of
discharge
application
by
trial
court-two
contradictory
report
of
the
Investigating agency-one report is in
favour of accused while another is
against
him-relying
upon
two
contradictory reports is the subject
matter of evidence-Prima facie there is
sufficient
evidence
against
the
accused-earlier
report
cannot
be
ignored altogether unless there is an
order to that effect of any higher
court-However revisionist was found
to have spent only 4% more than his
income while the judgement of Apex
Court provides exemption upto 10%-
trial court recorded at the stage of
framing charge, there is no necessity
to make in-depth appreciation of the
evidence-it would be appropriate to
frame charge against the accused to
reach the truth.(Para 6 to 15)

At the initial stage of framing of a charge,
the court is concerned not with proof but
with a strong suspicion that the accused
has committed an offence, which, if put to
trial, could prove him guilty. All that the
court has to see is that the material on
record and the facts would be compatible
with the innocence of the accused or not.
The final test of guilt is not to be applied at
that stage.(Para 11)

The revision is dismissed. (E-6)

List
of
Cases
Cited:-