# Khushabuddin Ali Revisionist v. State of U.P. & Anr

- **Citation:** (2020) 10 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-05
- **Case number:** Criminal Revision No. 4921 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khushabuddin-ali-revisionist-v-state-of-u-p-anr-45128
- **Pages:** 5

## Headnote

Children ) Act, 2015- Section 12- Bail of
Juvenile- The regime about a universal
rule of bail to the juvenile and then
subjecting it to the three disentitling
conditions under the proviso to Section 12
(1) of the Act has application in a case
where a juvenile is not entitled to bail on
the merits of the case- It does not mean
that in a case where a juvenile on the
merits of the case is entitled to bail, his
bail plea must still pass muster u/s 12 (1)
of the Act.

Where a juvenile is entitled to bail on the merits
of the case, there is no need for testing his case
on the rigors of the three disentitling provisions
u/s 12 (1) of the Act.

Juvenile Justice ( Care and Protection of
Children ) Act, 2015- A perusal of the FIR,
the statement under Section 161 Cr.PC.
and that under Section 164 Cr.P.C casts a
grave shadow of doubt on the prosecution
story. In the event, the revisionist were an
adult, in all probability, he would have
been entitled to bail on merits - Nothing
in the social investigation report that the
revisionist, if released on bail, would come
in association with any known criminal or
would be exposed to any moral, physical
or
psychological
danger.
In
the
circumstances, there is no basis to infer
that the release of the revisionist on bail
would lead to ends of justice being
defeated.

Since on the merits of the case the story of the
prosecution
is
doubtful
and
the
social
investigation report is in
favour of the
revisionist, hence revisionist is entitled to bail.
(Para 10, 13, 14)

Revision accordingly allowed.(E-3)

## Text

10 All. Khushabuddin Ali Vs. State of U.P. & Anr.
127
----------
(2020)10ILR A127
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.10.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Revision No. 4921 of 2019

Khushabuddin Ali ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Atul Nayak, Sri Rajesh Kumar Mall, Sri
Ravi Kumar Srivastava

Counsel for the Opposite Parties:
A.G.A.

Juvenile Justice ( Care and Protection of
Children ) Act, 2015- Section 12- Bail of
Juvenile- The regime about a universal
rule of bail to the juvenile and then
subjecting it to the three disentitling
conditions under the proviso to Section 12
(1) of the Act has application in a case
where a juvenile is not entitled to bail on
the merits of the case- It does not mean
that in a case where a juvenile on the
merits of the case is entitled to bail, his
bail plea must still pass muster u/s 12 (1)
of the Act.

Where a juvenile is entitled to bail on the merits
of the case, there is no need for testing his case
on the rigors of the three disentitling provisions
u/s 12 (1) of the Act.

Juvenile Justice ( Care and Protection of
Children ) Act, 2015- A perusal of the FIR,
the statement under Section 161 Cr.PC.
and that under Section 164 Cr.P.C casts a
grave shadow of doubt on the prosecution
story. In the event, the revisionist were an
adult, in all probability, he would have
been entitled to bail on merits - Nothing
in the social investigation report that the
revisionist, if released on bail, would come
in association with any known criminal or
would be exposed to any moral, physical
or
psychological
danger.
In
the
circumstances, there is no basis to infer
that the release of the revisionist on bail
would lead to ends of justice being
defeated.

Since on the merits of the case the story of the
prosecution
is
doubtful
and
the
social
investigation report is in
favour of the
revisionist, hence revisionist is entitled to bail.
(Para 10, 13, 14)

Revision accordingly allowed.(E-3)

(Delivered by Hon'ble J.J. Munir, J.)

1. This Revision, under Section 102
of the Juvenile Justice (Care and Protection
of Children) Act, 2015 (for short, ''the Act')
is directed against a judgment and order
passed by Mr. Lakshmi Kant Shukla,
learned
Special
Judge
POCSO
Act,
Kushinagar at Padrauna dated 07.11.2019
dismissing Criminal Appeal no.57 of 2019
and affirming an order passed by the
Juvenile Justice Board, Kushinagar at
Padrauna, dated 11.09.2019, refusing bail
to the revisionist in Case Crime no.315 of
2019, under Sections 363, 366, 376, 506
IPC and Section 3/4 of the POCSO Act,
Police Station Kotwali Padrauna, District
Kushinagar.

2. Notice was issued to opposite party
no.2 vide order dated 20.12.2019. A perusal
of the office report dated 27.02.2020 shows
that service upon opposite party no.2 has
been effected through his daughter. Service
report is on record marked with Flag - A.
The service report submitted by the Chief
Judicial
Magistrate,
Kushinagar
at
Padrauna, dated 22.01.2020 shows that
opposite party no.2 has been served
through his daughter, Sukanya Yadav.
128 INDIAN LAW REPORTS ALLAHABAD SERIES
Duplicate of the notice issued bears
acknowledgment of receipt by Sukanya
Yadav. Service upon opposite party no.2 is,
therefore, held sufficient. No one has put in
appearance on behalf of the complainant/
opposite party no.2.

3. Heard Sri Rajesh Kumar Mall,
learned Counsel for the revisionist and the
learned A.G.A. appearing on behalf of the
State.

4. The prosecution in this case
commenced on an FIR dated 02.07.2019
lodged at 9.14 p.m. by the second opposite
party at Police Station Kotwali Padrauna,
nominating the revisionist, besides two
others. The FIR was registered for offences
punishable, under Sections 363, 366 IPC.
The occurrence indicated there is said to
have taken place on 23.06.2019. It is said in
the FIR that the informant's daughter (for
short, ''the prosecutrix') had headed out to
the fields on 23.06.2019 at about 8:00
o'clock in the night, when the revisionist
along with Golu son of Faijul Rehman and
Imtiyaz son of Samsul Huda took her away
by blandishment. It was also reported that
they had taken her away in a Maruti (Swift
Car) bearing registration no. UP 53 AQ
1181. It is also said that the prosecutrix is
aged 13 years and reads in Class-VII.
Necessary action by the police was
requested.

5. The revisionist is a minor, aged about
17 years, his date of birth according to his High
School
Examination
Certificate
being
07.03.2003. The revisionist moved for bail to
the Juvenile Justice Board, who proceeded to
reject the same. Aggrieved, the revisionist went
up in Appeal to the learned Sessions Judge.
That Appeal came up before the learned Judge
(POCSO Act), who has dismissed the Appeal
and affirmed the Juvenile Justice Board.

6. Aggrieved, this Revision has been
brought.

7. Learned Counsel for the revisionist has
argued that the prosecutrix is not a minor, but a
major aged 18 years. She has eloped with the
revisionist of her free will. It is upon knowledge
of the FIR being lodged by her father, opposite
party no.2, that she returned home along with
the revisionist. She has lateron implicated the
revisionist at the bidding of her parents and the
police on patently false charges of rape. In
addition, it is submitted by the learned Counsel
for the revisionist that under Section 12(1) of
the Act, the juvenile has a right to be released
on bail unless his case falls in one or the other
three disentitling categories postulated under the
proviso to Section 12(1) of the Act. It is urged
further that the revisionist's case is not one that
falls under any of the disentitling categories
and, therefore, the Courts below have
committed a manifest illegality in refusing bail
to the revisionist.

8. Learned A.G.A. has opposed the
revisionist's prayer to reverse the two
concurrent orders. He submits that it is a case of
rape involving a minor, aged 15 - 16 years. In
case, the revisionist were released on bail, it
would lead to ends of justice being defeated.

9. This Court has carefully considered
the submissions advanced on behalf of both
parties and perused the record. It is true that
in the case of bail to a juvenile, Section 12
of
the
Act
excludes
the
principles
governing bails provided under the Code of
Criminal Procedure. It postulates a regime
where bail is a matter of right to the
juvenile where an adult, circumstanced like
him, would not be entitled to it except
where the juvenile's case is shown to fall in
any of the three disentitling categories
under the proviso to Section 12(1) of the
Act. Now, Section 12 of the Act may be
10 All. Khushabuddin Ali Vs. State of U.P. & Anr.
129
quoted, for the facility of ready reference.
Section 12 (supra) reads:

"12. Bail to a person who is
apparently a child alleged to be in
conflict with law.--(1) When any person,
who is apparently a child and is alleged to
have committed a bailable or non-bailable
offence, is apprehended or detained by the
police or appears or brought before a
Board, such person shall, notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) or in any other
law for the time being in force, be released
on bail with or without surety or placed
under the supervision of a probation officer
or under the care of any fit person:

Provided that such person shall not
be so released if there appears reasonable
grounds for believing that the release is likely
to bring that person into association with any
known criminal or expose the said person to
moral, physical or psychological danger or
the person's release would defeat the ends of
justice, and the Board shall record the reasons
for denying the bail and circumstances that
led to such a decision.

(2) When such person having been
apprehended is not released on bail under
sub-section (1) by the officer in-charge 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."

10. This regime about a universal rule
of bail to the juvenile and then subjecting it
to
the
three
disentitling
conditions
envisaged under the proviso to Section
12(1) of the Act, in the opinion of this
Court, has application in a case where a
juvenile is not entitled to bail on the merits
of the case. All that this Court means is
this:
in
a
case
where
an
adult,
circumstanced like the juvenile, would not
be entitled to bail, the provisions of Section
12(1) of the Act would apply, entitling the
juvenile to the determination of his bail
plea in accordance with the said provision.
A fortiori, it does not mean that in a case
where a juvenile on the merits of the case is
entitled to bail, his bail plea must still pass
muster under Section 12(1) of the Act. If
this construction of the provisions of
Section 12 of the Act were adopted, the
juvenile would be more disadvantaged than
the adult, and that clearly is not the purpose
or the object of the Act; it is also not the
purport of Section 12 thereof.

11. In the present case, this Court
notices that in the FIR, the prosecutrix has
been mentioned to be 15 years old. She has
been
subjected
to
a
medico-legal
examination, where on the basis of an
ossification test, she has been opined by the
Chief Medical Officer, Kushinagar, to be
aged about 16 years. A copy of this report
has been brought on record by the
revisionist
through
a
supplementary
affidavit dated 22.09.2020, which this
Court has perused. Now, going by the usual
variation of two years on the medical
estimation of age, the prosecutrix would
reckon to be 18 years. It has not been
brought to this Court's notice that there is
130 INDIAN LAW REPORTS ALLAHABAD SERIES
any other higher certification for the
prosecutrix's age relevant under Section
94(2) of the Act, that would exclude
medical estimation. This implies prima
facie that the prosecutrix is of the age of
consent.

12. A perusal of the FIR shows that
the revisionist has been implicated with an
allegation of enticing away a minor from
the custody of the lawful guardian, may be
for the purpose of marrying her. There is no
allegation of rape there. The statement of
the prosecutrix, that was recorded by a lady
constable on 03.07.2019 after she was
recovered, is very important to this Court's
understanding. The statement shows that
the prosecutrix had known the revisionist
some seven months prior to the occurrence
and was in love with him. She has said that
on 23.06.2019, she was thrashed by her
mother, which annoyed her so much, that
she went of her own to the revisionist,
whom she loved. The revisionist lives in
Gujarat.
The
prosecutrix
called
the
revisionist over to Gorakhpur and without
telling anyone at home, she left home of
her own for Barhalganj Railway Station.
There she boarded a train to Gorakhpur and
met the revisionist there. She accompanied
the revisionist from Gorakhpur to Gujarat.
The revisionist housed the prosecutrix at
his employer's home. However, when the
two learnt that the prosecutrix's father had
reported the matter to the police, both of
them proceeded to Gorakhpur by train and
from Gorakhpur to Padrauna by bus. The
revisionist had made her comfortable
somewhere and left to fetch something
when the police arrived and took her away.
The prosecutrix has said specifically that
she was not ravished, expressing it in the
words: ''mere saath koi galat kaam nahin
hua hai'. Two days later, on 05.07.2019, the
prosecutrix's statement was recorded, under
Section 164 Cr.P.C. There, she squarely
blamed the revisionist of committing rape.

13. A perusal of the FIR, the
statement under Section 161 Cr.P.C. and
that under Section 164 Cr.P.C. casts a grave
shadow of doubt on the prosecution story.
In the event, the revisionist were an adult,
in all probability, he would have been
entitled to bail on merits. This being the
position, it would be very unfair and
discriminatory to test the revisionist's case
further on the touchstone of Section 12(1)
of the Act, and then condemn his claim on
one or the other disentitling grounds. The
Special Judge in Appeal has looked into the
social
investigation
report
and
there
appears nothing from his remarks in the
order impugned, particularly, those carried
in paragraphs 6 and 7 of that order, that the
revisionist, if released on bail, would come
into association with any known criminal
or would be exposed to any moral, physical
or psychological danger.

14. This Court does not find that in
the circumstances, there is basis to infer
that release of the revisionist on bail would
lead to ends of justice being defeated. In
the opinion of this Court, the impugned
orders passed by the two Courts below
cannot be sustained and deserve to be set
aside.

15. In the result, this revision
succeeds and is allowed. The impugned
order dated 07.11.2019 passed by the
Special Judge POCSO Act, Kushinagar at
Padrauna in Criminal Appeal no.57 of 2019
and the order dated 11.09.2019 passed by
the Juvenile Justice Board, Kushinagar at
Padrauna in Case Crime no.315 of 2019,
under Sections 363, 366, 376, 506 IPC and
Section 3/4 of the POCSO Act, Police
Station
Kotwali
Padrauna,
District
10 All. Arvind Kumar Singh Vs. Additional Commissioner (Judicial), Lko. Division Lucknow & Ors.
131
Kushinagar, are hereby set aside and
reversed. The bail application made on
behalf of the revisionist stands allowed.

16.

Let
the
revisionist,
Khushabuddin Ali, through his natural
guardian/
father,
Diladar
Husain,
be
released on bail in Case Crime no.315 of
2019, under Sections 363, 366, 376, 506
IPC and Section 3/4 of the POCSO Act,
Police Station Kotwali Padrauna, District
Kushinagar upon his father furnishing a
personal bond with two solvent sureties of
his relatives each in the like amount to the
satisfaction of the Juvenile Justice Board,
Kushinagar at Padrauna, subject to the
following conditions:

(i) that the natural guardian/
father, Diladar Husain will furnish an
undertaking that upon release on bail the
juvenile will not be permitted to come into
contact or association with any known
criminal or allowed to be exposed to any
moral, physical or psychological danger
and further that the father will ensure that
the juvenile will not repeat the offence.

(ii) The revisionist and his father,
Diladar Husain will report to the District
Probation Officer on the second Monday of
every calendar month commencing with the
second Monday of October, 2020 and if
during any calendar month the second
Monday falls on a holiday, then on the
following working day.

(iii)
The
District
Probation
Officer will keep strict vigil on the
activities of the revisionist and regularly
draw up his social investigation report that
would be submitted to the Juvenile Justice
Board, Kushinagar at Padrauna on such
periodical basis as the Juvenile Justice
Board may determine.

(iv) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

(v) The computer generated copy
of such order shall be self attested by the
counsel of the party concerned.

(vi)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2020)10ILR A131
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2018

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc Single No. 1787 of 2018

Arvind Kumar Singh ...Petitioner
Versus
Additional Commissioner (Judicial), Lko.
Division Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Pankaj Gupta

Counsel for the Respondents:
C.S.C., Yogendra Nath Yadav

Civil
Suit
was
filed
seeking
cancellation of sale deed and said suit
was
decreed
in
favour
of
the
Respondent-Respondent also moved an
appeal against order declaring transfer
void-appeal allowed -Petitioner was
not a party to lis nor appeal-no legal
right of Petitioner infringed-he heave
no locus to file Writ.

Writ Petition dismissed. ( E-9)

List of Cases cited:

1. Jasbhai Motibhai Desai Vs Roshan Kumar,
Haji Bashir Ahmed, (1976) 1 SCC 671