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Judgment
This revision has been filed under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 arising out the order dated
13.11.2017 passed in Criminal Appeal No. 364/2017 by the Sessions Judge, Ujjain and also against the order dated 13.10.2017 passed by the Principal
Magistrate, Juvenile Justice Board, Ujjain, rejecting the application of applicant filed under Section 12 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (for short 'Act of 2015').
As alleged, an offence was registered against the applicant and other persons on 31.8.2017 by Police Station Neelganga, Ujjain at Crime
No.572/2017 for the offences punishable under Sections 376(2)(d), 506, 342, 363 of the Indian Penal Code and Sections 3,4,7 and 8 of the Protection
of Children from Sexual Offences Act, 2012 (for short 'POCSO Act').
The prosecution alleges that prosecutrix was a minor and below the age of 18. On 29.8.2017, she was called by the applicant at Chaupati near
Gurudwara at about 4.30 pm. It is further alleged that applicant took the prosecutrix on his motorcycle on the guise of celebrating her birthday in Hotel
Mittal Paradise where two other friends of the applicant also reached and they all took the drinks. The drink of the prosecutrix was already mixed
with some intoxicating substance due to which she became unconscious. Thereafter, in the evening, at about 6.30 pm applicant took the prosecutrix in
a house situated at Vivekanand Colony and committed rape with her.
The trial court while rejecting the application under Section 12 of the Act of 2015 has observed that the age of the applicant is above 16 years and
the offence has been committed by him in a planned way. The possibility of further commission of offence by him cannot be ruled out and in the
report of police and the safety of the juvenile was found in danger.
On filing the appeal, the appellate court referring Section 12 of the Act of 2015 has observed that the age of the applicant is16 years 9 months and
20 days. It is said that CSR report indicates that applicant is a Malkhamb player and saved lives of several persons during “Simhasthaâ€, but, the
offence has been committed in a planned way, which indicates that applicant is not in the control of his parents and he may come in association with
known criminals, therefore, his release may not be in the public interest. The appellate court has also observed that as per Section 15(1) read with
Section 18(3) and as defined in Section 2(33) of the Act of 2015 in a case of heinous offence, if the juvenile is between 16 to 18 years, the court may
send such case for trial to the Children's Court. Considering the aforesaid facts and circumstances, the appellate rejected the appeal of the applicant.
After having heard learned counsel appearing on behalf of both the parties and on perusal of the provisions of Section 12 of the Act of 2015 and its
proviso, it is apparent that release of juvenile on bail is his right. The release on bail to such person may be refused where there appears reasonable
grounds to believe 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. The report of the Probationary Officer is available on record. The said
report does not indicate any of the said contingency. Simultaneously, the applicant is a Malkhamb player and has done the act of bravery during
“Simhastha†and saved lives of several persons. In teen age the possibility of attraction with the opposite sex cannot be ruled out, however,
looking to the report of Probationary Officer, at present, no reasonable ground is made out to believe that applicant would come in association with the
known criminals or to commit any offence, therefore, his release may not be directed.
It is to observe here that the appellate court while referring the provisions of Section 2(33) in a case of heinous offence and Section 15(1) read with
Section 18(3) of the Act of 2015 has observed that Juvenile Justice Board may refer the case to the Children's Court for trial. Firstly, as per order
dated 15.1.2018, the trial court has observed as under:
“fof/k izfrdwy fd’kksj ds ekufld ,oa euksoSKkfud ijh{k.k gsrq fd’kksj U;k; cksMZ ds lnL;ksa }kjk i`Fkd ls fof/k izfrdwy fd’kksj ls ppkZ
dh xbZA fd’kksj U;k; cksMZ }kjk fof/k izfrdwy fd’kksj ds ijh{k.k ds laca/k esa mlls foLr`r ppkZ o ?kVuk ds laca/k esa okrkZyki fd;k x;kA
fof/k izfrdwy fd’kksj ls ifjppkZ dh xbZA ifjppkZ esa vipkjh }kjk rF; crk;s x;s fd ihfM+rk dk ?kVuk fnukad dks tUefnu FkkA tUefnu eukus ds fy,
ihfM+rk us mls ogka cqyk;k FkkA tUefnu dh ikVhZ eukus ds fy, og] ihM+hrk rFkk vU; lkFkh feRry isjkMkbZt gksVy x;s FksA tgka muds }kjk
fMªad dh xbZA vipkjh ls dh xbZ ifjppkZ ls ihM+rk ls og iwoZ ifjfpr gksuk izdV gksrk gSA vipkjh ls dh xbZ ckrphr ds nkSjku mlus izdV fd;k fd mlds
}kjk flagLFk 2016 esa rhu yksxksa dks Mqcus ls cpkdj mudh tku cpkbZ rFkk og Lohfeax esa LVsV ysoy rd [ksyk gSA vipkjh ls dh xbZ ckrphr ls
izdV gksrk gS fd og dfFkr vijk/k ds ifj.kke dks u le>rq gq, laHkor% laxfro’k o u’ks dh voLFkk esa mDr vijk/k esa lafyIr gqvk gSA vipkjh
ckrphr ls prqjpkyd izo`fRr dk u gksdj lk/kkj.k izd`fr dk ckyd nf’kZr gksrk gSA bl izdkj fof/k izfrdwy fd’kksj dk ijh{k.k fd;s tkus ls ;g izdV gksrk
gS fd fd’kksj }kjk dk;Z ds ifj.kke o vkpj.k dks le>rs gq, iwoZ lqfu;ksftr ;kstuk cukdj ?kVuk dkfjr fd;s tkus laca/kh rF; ugh ik;s x;s gSA
bl izdkj ckyd ds loksZRre fgr dks n`f""Vxr j[krs gq, izdj.k dk fujkdj.k fd’kksj U;k; cksMZ }kjk fd;k tkuk mfpr izdV gksrk
gSA
izdj.k vijk/k fooj.k gsrq fu;r fd;k tkrk gSA
izdj.k vijk/k fooj.k gsrq fnukad 29@01@18 dks is’k gksAâ€
In addition to the aforesaid, as per Section 15(1) of the Act of 2015, it is the duty of the trial court to make an assessment of heinous offence in
which if a juvenile has committed a heinous offence and completed the age of 16 years, the Board shall conduct a preliminary assessment with regard
to his mental and physical capacity to commit such offence, ability to understand the consequence of the offence and the circumstances in which the
alleged offence is committed and thereafter the Board may pass an order as per sub-section (3) of Section 18 of the Act of 2015. As per the said
provision, the Board is required to pass an order to try the case by the Children's Court having jurisdiction to try such offence. In view of the order
dated 15.1.2018 passed by the Juvenile Board, the aforesaid contingencies have been ruled out, therefore, the observation made by the Sessions Judge
is liable to be struck down.
In view of the foregoing discussion, this revision is hereby allowed. The order passed by the Juvenile Board and the Sessions Court stand set aside.
The Juvenile Board is directed to release the applicant on the terms and conditions so fixed in the facts and circumstances of the case.
With the aforesaid, this revision stands allowed and disposed of.