# Minor 'X' Through His Natural Guardian Father Alok Kumar Srivastava Revisionist v. State of U.P. & Anr

- **Citation:** (2022) 12 ILRA 695
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-12
- **Case number:** Criminal Revision No. 981 of 2021
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/minor-x-through-his-natural-guardian-father-alok-kumar-srivastava-revisionist-v-47974
- **Pages:** 6

## Headnote

A. Criminal Law -Juvenile Justice Act,
2015-Section 102 - Indian Penal Code,
1860-Sections 376-AB, 323 5(Da)/6
POCSO Act-application-rejection-Juvenile
Justice Board as well as the Appellate
Court rejected the bail application-victim
statement
u/s
161
and
164
Cr.P.C.
supported the version of FIR-Lack of
injury is not sufficient to suggest that the
victim
did
not
undergo
the
ordeal
perpetrated
on
her-Crime
has
been
committed in a friendly neighborhood
whom she might have trusted-The view
taken by Juvenile Justice Board and
appellate Court upheld.(Para 1 to 23)

The revision is dismissed. (E-6)
List of Cases cited:

## Text

12 All. Minor 'X' Through His Natural Guardian Father Alok Kumar Srivastava Vs. State of U.P.
 & Anr.
695
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.

43. 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) 12 ILRA 695
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 981 of 2021

Minor 'X' Through His Natural Guardian
Father Alok Kumar Srivastava
 ....Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ankit Kapoor, Sri Lal Chandra Mishra

Counsel for the Opposite Parties:
G.A.

A. Criminal Law -Juvenile Justice Act,
2015-Section 102 - Indian Penal Code,
1860-Sections 376-AB, 323 5(Da)/6
POCSO Act-application-rejection-Juvenile
Justice Board as well as the Appellate
Court rejected the bail application-victim
statement
u/s
161
and
164
Cr.P.C.
supported the version of FIR-Lack of
injury is not sufficient to suggest that the
victim
did
not
undergo
the
ordeal
perpetrated
on
her-Crime
has
been
committed in a friendly neighborhood
whom she might have trusted-The view
taken by Juvenile Justice Board and
appellate Court upheld.(Para 1 to 23)

The revision is dismissed. (E-6)
List of Cases cited:
1. Amit Kumar Vs St. of U.P. CRLR No. 2732 of
2010

2. Kanchan Sonkar Vs St. of U.P. CRLR No.
1266 of 2020

3. Amit Vs St. of U.P. CRLR No. 1852 of 2015

4. Prakash Vs St. of Raj. (2006) Cri.L.J.1373

5. Vijendra Kumar Mali Vs St. of U.P. (2003) 1
JIC 103

6. Om Prakash Vs St. of Raj. & anr. (2012) 5
SCC 201

7. Mangesh Rajbhar Vs St. of U.P. &anr. (2018)
2 ACR 1941

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

1. It appears that name of the
revisionist-juvenile has been disclosed in
the memo of revision. This fault from the
side of revisionist escaped detection by the
Registry. The concerned Officer of the
Registry is directed to delete the name of
the revisionist-minor from the title of the
revision as fed and shown in the data on
website and represent him as "Minor 'X'
Through His Natural Guardian Father
Alok Kumar Srivastava".

2. Heard learned counsel for the
revisionist as well as learned AGA for the
State and perused the record.

3. This criminal revision under
Section 102 of the Juvenile Justice Act,
2015 has been filed on behalf of the minor
'X' through his natural guardian/father Alok
Kumar Srivastava S/o Dinesh Narayan R/o
Mohalla Ashok Nagar Vanshi Nagla, Near
Neelkanth Mandi, Police Station Subhash
Nagar, Bareilly with the prayer to admit the
696 INDIAN LAW REPORTS ALLAHABAD SERIES
minor to bail alongwith the prayer to set
aside the order dated 06.02.2021 passed by
the Juvenile Justice Board, Bareilly and
order dated 16.03.2021 passed by the
Additional Sessions Judge/Special Judge,
POCSO Act, Court No. 2, Bareilly in
Criminal Appeal No. 16/2021 arising out of
Case Crime No. 937 of 2020 under
Sections 376AB, 323 IPC and 5(Da)/6 of
POCSO Act, Police Station-Subhash Nagar,
District-Bareilly by which the criminal
appeal was rejected.

4. As per the version of the FIR, the
juvenile abducted a nine years old daughter
of the informant on 02.12.2020 at about 8
pm from her house when she was alone, on
the pretext of getting a quilt from his house
and took her to the roof of his own house
which was under construction and ravished
her. The FIR was lodged at 02.07 hours on
02/03.12.2020. On the basis of this FIR
Crime No. 0937/2020 under Sections
376AB/323 IPC and Section 5(Da)/6 of
POCSO Act was registered at Police
Station Subhash Nagar, District Bareilly,
and investigated upon.

5. A bail application was preferred
before the Juvenile Justice Board through
his father on 22.01.2021 and the same was
rejected by the Juvenile Justice Board
mainly on the basis of the social
investigation reports submitted by the
District Probation Officer. The appeal
preferred against the above order before the
children Court was also dismissed.

6. Aggrieved by the above two orders,
the revisionist has come in criminal
revision before this Court.

7. It is contended on behalf of the
juvenile that the learned courts below did
not consider the medical report of the
victim which showed no mark of injury and
that the FIR was lodged after a long delay.
It is also contended that the Juvenile Justice
Board had rejected the bail application on
the ground of gravity of offence which is
against the settled position of law. There
has been no eye-witness of the incident.
The lower appellate court did not apply its
independent mind and simply concurred
with the opinion of the Juvenile Justice
Board.
Hence,
the
orders
are
not
sustainable in the eyes of law.

8. 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
Bench of this Court in Criminal Revision
No. 2732 of 2010 (Amit Kumar vs. State
of U.P.) decided on 14.09.2010, Criminal
Revision No. 1266 of 2020 (Kanchan
Sonkar vs. State of U.P.) decided on
01.12.2020, Criminal Revision No. 1852
of 2015 (Amit vs. State of U.P.) decided
on 16.03.2016 and held by the Apex Court
in Prakash vs. State of Rajasthan, 2006
Cri.L.J. 1373.

9 . In Criminal Revision No. 1852 of
2015 (Amit vs. State of U.P.) decided on
16.03.2016, this Court referred to the
earlier judgement in Vijendra Kumar
Mali vs. State of U.P., 2003 (1) J.I.C. 103,
wherein it is reiterated 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 existed. 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
12 All. Minor 'X' Through His Natural Guardian Father Alok Kumar Srivastava Vs. State of U.P.
 & Anr.
697
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.

10. 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 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.

11. Learned AGA has opposed the
prayer for bail.

12. I perused the impugned orders.
The Juvenile Justice Board referred to the
social investigation report of the District
Probation Officer and highlighted the fact
that the incident allegedly happened in the
house of the juvenile which existed in
neighbourhood; the juvenile was not
keeping a good company, thereafter, the
Board observed that in case the juvenile is
released on bail, he shall again be relegated
to same environs where he had been earlier
and which was instrumental in bringing
him to this juncture of commission of crime
and that in all likelihood, he will be
exposed
to
physical,
moral
and
psychological danger and that his release
shall defeat the ends of justice.

13. In the appellate order, this was
noticed that the victim in her statement told
that all other family members had gone to a
temple and she was alone. Meanwhile, the
juvenile took her away and forcibly
assaulted her sexually and that she was also
put to physical violence and threatened.
The Appellate Court also gave an opinion
that in case the juvenile is released on bail,
he shall slip again and fall off into same
kind of environment, which led him to
commission of this kind of atrocious crime.

14. In Om Prakash vs. State of
Rajasthan and another; (2012) 5 SCC
201, the Hon'ble Apex Court 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 became
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 where 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 brought in focus the nature of crime as
well as the 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 offenders.

15. 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 gave a view that
where accused commits grave and heinous
offence and thereafter attempt 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
698 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

16. In Mangesh Rajbhar vs. State of
U.P. and Another; 2018 (2) ACR 1941, it
was observed by a coordinate Bench of this
Court as below:

"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
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."

17. 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. This is not to say that once a
person is found a juvenile, it is mandatory
to grant him bail and that merits of matter
shall have no relevance. In fact nature of
the crime as well merits of the case have
been brought in focus by the Apex Court in
Om Prakash (supra) case. The nature of
crime including other merits of the matter
may be quite significant 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.
Unarguably and undeniably, the Courts are
12 All. Minor 'X' Through His Natural Guardian Father Alok Kumar Srivastava Vs. State of U.P.
 & Anr.
699
under obligation to address the concerns of
both the sides and strike a delicate balance
between competing and often conflicting
demands of justice of the two sides.

18. 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.

19. It clearly appears that the Juvenile
Justice Board as well as the Appellate
Court,
while
dismissing
the
bail
applications, definitely had this fact in
mind that in case the juvenile is released on
bail, he shall fall off in the same
environment from where perhaps he needed
to be rescued for his own welfare. In my
view, this aspect of the matter is not far
away from ends of justice though it is also
specifically
covered
in
the
general
principles described in Section 3 of the
Juvenile Justice Act, 2015 under the head
"Principle of Best Interest".

20. These facts are undisputed that the
revisionist was found to be of the age of
seventeen and half years. This fact is also
undisputed that the victim in this case is a
girl of tender age of nine years and that she
in her statement given under Section 161
and 164 Cr.P.C., supported the version of
the FIR and stated that sexual assault was
committed by the juvenile and that she was
also
physically
assaulted
before
the
commission of this crime. There is no
material before this Court to suggest that
there
was
any
probability
of
false
implication of the juvenile. This Court is of
the view that at a tender age of mere 9
years the victim might not have fully
understood the nature of crime to which she
was being put through, though, she might
be perplexed and overawed. Physical
resistance from a child of this age may be
too much to expect. It appears that the
victim was known to the juvenile and she
lived in the neighbourhood. At the time of
occurrence, she was slapped and threatened
to keep mum. Lack of any injury on the
person of a girl of 9 years is not sufficient
to suggest that she did not undergo the
ordeal perpetrated on her. The totality of
the circumstances, give a fair indication
that the revisionist had attained sufficient
maturity of mind and that he took
advantage of the fact that the girl was alone
in her house and that nobody was around to
catch him and perhaps, he also had an
impression in his mind that he was in a
position to not only over power her but also
to keep her mouth shut and probably she
will not tell anybody and matter may not be
discovered.

21. In the circumstances of the case,
following facts assume importance. Firstly,
nature of the crime-that a girl living next door
who was merely a nine year old and not even
in position to physically resist a grown up
boy was overawed and made to surrender by
threats and slaps and was put to undergo
ordeal of such atrocious crime. Crime has
been committed in a friendly neighbourhood
whom she might have trusted. Secondly,
when a boy who is a borderline case, quite
near to attaining majority, commits such a
crime, in my view, certainly he needs
professional
counselling
or
behavioural
700 INDIAN LAW REPORTS ALLAHABAD SERIES
therapy to inculcate in him the respect for
females of all the ages, learn the worth and
dignity of female body and grow into an adult
with a healthy mind inside. Thirdly, the aim
and object of the Juvenile Justice Act cannot
be achieved if crimes committed by juveniles
are not viewed from the angle of their own
welfare and concerns of society at large as
well. From this angle i.e., angle of the best
interest of the juvenile, the angle of his own
welfare and well-being and the angle of
striking a balance between the demands of
justice for both the sides including the
concerns of the society at large, the social
investigation report may give good indicators
to be followed. However, I hasten to add a
word caution that the social investigation
report which are ordinarily prepared without
proper research and in unscientific manner on
printed formats may not be wholly reliable,
even then a judicially trained mind may
search for clues and take assistance for
drawing a conclusion from this point of view.

22. The learned Court and the Board
took a concurrent view that it shall not at
all be fit to release the juvenile to his
parents or family members for his own
welfare and to serve the ends of justice.
This view cannot be faulted and I am in
agreement with the final conclusions
arrived at by the Juvenile Justice Board and
the appellate Court. There is no such
invalidity or impropriety in the order to
prompt this Court to interfere in the
impugned order in this revision.

23. The revision is, accordingly,
dismissed.

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

25. 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.

Order Date :- 12.9.2022

Vik/-SFH

Note- Copy of the order be sent
to concerned Section of the Registry for
immediate compliance of direction given
in Para-1 of the order.
----------
(2022) 12 ILRA 700
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2022

BEFORE

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

Transfer Application (Civil) No. 643 of 2022

Smt. Ghazala Begum ...Applicant
Versus
Mohd. Musarraf & Ors. ...Opposite Parties

Counsel for the Applicant:
Mr. Anil Kumar Gupta, Sri Santosh Kumar
Rai

Counsel for the Opposite Parties:

(A) Civil Law - Transfer of Case - Code of
Civil Procedure,1908 - Section 24(1)(a) -
transfer
any
suit,
appeal
or
other
proceeding pending before it for trial or
disposal to any Court subordinate to it and
competent to try or dispose of the same -
The Right to Fair Compensation and
Transparency
in
Land
Acquisition,
Rehabilitation and Resettlement Act, 2013
- Section 51 - Establishment of Land
Acquisition,
Rehabilitation
and
Resettlement
Authority(LARRA)
-
"Authority" , Section 3(e)(i) - appropriate
Government , Section 53 - Qualifications
for appointment as Presiding Officer -