Monu @ Moni @ Rahul @ Rohit vs State of U.P.

Vinod Prasad, J.—Revisionist Monu @ Moni @ Rahul @ Rohit, a juvenile in conflict with law, has preferred instant criminal revision u/s 53 of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred as the Act), seeking his release on bail in Crime No. 240 of 2010 u/s 376(2)(g) I.P.C. P.S. Singhawali Aheer, District Baghpat. His bail prayer already stood rejected by Juvenile Justice Board and lower appellate court in Criminal Appeal No. 59 of 2011, vide orders dated 2.2.2011 and 26.2.2011 respectively.

At the outset a brief resume of background facts are sketched below.

Sonia(victim), a young damsel, aged about 14 years, resident of Karmalipur Garhi, Baghpat, had gone to Chopra Maheshpur to attend a marriage ceremony on 30.6.2010, where, at 10:00 p.m., four accused persons namely Monu @ Moni @ Rahul @ Rohit(revisionist), Umed, Kallu @ Kuldeep and an unknown accused kidnapped her at gun point by gagging her mouth when marriage procession was in progress and after carrying her to an abandoned ruinous house raped her at gun point. FIR of temerity, annexure No. 1, was lodged by Victim''s uncle Ved Pal at P.S. Singhawali Aheer, District Baghpat, on 1.7.2010 at 2:00 a.m., as Crime No. 240 of 2010, u/s 376 I.P.C.

Victim''s medical examination report Annexure No. 2 indicated no mark of injury on her body, secondary sexual characters well developed, hymen old turned and vagina admitted two fingers easily. No edema or redness was detected in her uterus. Very small abrasions with redness was noticed beneath both labia majora. Two vaginal smear slides for presence of spermatozoa were prepared but pathological examination report, annexure No. 4 dated 5.7.2010 negative it. Radiological age of the victim was assessed to be 16 years on the basis of ossification tests and x-ray examination report vide annexure No. 3.

During investigation victim supported her allegations in her 161 Code of Criminal Procedure statements recorded twice vide Annexure No. 5 and investigation revealed that victim''s modesty was robbed at gun point by all the rapists in an abandoned ruinous house and crime was orchestrated by hatching up of a conspiracy for the crime and in execution thereof, as a preparatory step, firearms were arranged by the revisionist and co-accused Umed and there after it was executed in the midst of marriage procession when revisionist and Umed abducted the victim at gun point and thereafter all the accused robbed her of her most precious honour. It also surfaced that during carnal intercourse by the revisionist, mouth of the girl was gagged and she was immobilised by the other accused persons by pressing her limbs. Arrival of some persons at the scene of the incident with torch lights forced the rapists to retreat and escape in the darkness.

After his apprehension revisionist claimed juvenility through an application dated 30.10.2011. Ensued inquiry for such a claim, by the revisionist, concluded by assessing his age to be 16 years 4 months and 28 days and thereby accepting his claim of juvenility vide order dated 7.1.2011.

Since revisionist was adjudged juvenile he moved to the Juvenile Justice Board, Meerut, for being released on bail in aforesaid crime but Board rejected his prayer on 2.2.2011, by observing that revisionist associations is of unwanted company and his widow mother had no control over him, consequently his release on bail will defeat the ends of justice as his case falls within one of the exception reasons engrafted u/s 12 of the Act where under bail to a juvenile in conflict with law can be refused.

Revisionist accused challenged bail rejection order by the Board before Sessions Judge, Meerut, in Criminal Appeal No. 29 of 2011, unsuccessfully, as his appeal was dismissed by lower appellate court vide it''s order dated 26.2.2011. Lower appellate court also concurred with the reasons and observations by the Board. Hence this revision.

On the above input facts, I have heard Sri R.R. Pandey learned Counsel for the revisionist and learned A.G.A. in opposition.

It was contented by revisionist counsel that Kallo @ Kuldeep has been allowed bail in Criminal Revision No. 4888 of 2010 by this Court, therefore, the revisionist be given same treatment on the ground of parity as his case is at par with Kallo @ Kuldeep especially when victim''s medical report belies the charge of gang rape. Revisionist has no criminal background and the opinion of the Board that he harboring a bad company, is based on conjectures and surmises against material on record.

Learned A.G.A. opposed bail prayer of the revisionist and submitted that by hatching up of a conspiracy, revisionist had outraged modesty of an adolescent girl aged 14 years and therefore he imbibes criminal proclivity. His depraved lustrous psychic intention compelled him to arrange for a country made pistol along with co-accused Umed and in a daring manner crime of kidnapping and rape was executed in a very well planned manner, when marriage procession was being celebrated. Victim was carried to an abandoned ruinous house where after gagging her mouth and pressing her limbs she was forced to succumb to her faux pas. Learned A.G.A. therefore, prayed for dismissal of the revision as being merit less.

I have considered rival submissions and have perused the record.

Bail prayer of a juvenile in conflict with law has to be considered in accordance with provisions contained u/s 12 of the Act reproduced as under:

Bail of juvenile.-(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is 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 institution or fit person] but he shall not be so released if there appear 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.

(2) When such person having been arrested is not released on bail under Sub-section (1) by the officer in-charge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.

(3) When such person is not released on bail under Sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."

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.

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.

When analysed in the light of above discussion, case of the revisionist falls in more that one exceptions provided u/s 12 of the Act and is segregated from that of Kallo @ Kuldeep. Conspiracy to kidnap a minor girl at gun point in the midst of a marriage procession and then to carry her to an abandoned house and rape her was hatched up by the revisionist who in execution of it acted with criminal intent of arranging for an illegal firearm along with Umed and thereafter executed it with precision. Above sequence of events unerringly indicate criminal proclivities of the revisionist and his depraved sexuality. He, even as a juvenile has a libido psyche and can go to any extent to sooth his lust. His widow mother has no commanding control over him. Record does not indicate any other male relative to keep control of the revisionist for the betterment of his moral and psychological qualities. In such a view, if the revisionist is released on bail, not only it will be miscarriage of justice, but will push the revisionist into further moral and psychological degradation. The ambit and scope of the Act is reformative and not further degradation and therefore a juvenile offender has to be detained at such a place where he can be separated from other criminal and crimes. Legislature in its wisdom has raised the age of juvenile offender from 16 to 18 years but the revisionist being above 16 years of age, was conscious of his illegal criminal activity. It cannot be said that he was unknown of the consequences of his act. Therefore, his case falls in more than one clauses of exception as is provided u/s 12 of the Act.

Rule of parity in the case of the revisionist cannot be applied because case of the revisionist stands at a different pedestal from other accused kallo. His role in the crime discussed herein above projects criminality possessed by him. Therefore his case cannot be accepted at par with the case of Kallo @ Kuldeep. Bail to Kallo was granted by this Court because lower courts had earlier refused his bail solely on the ground of gravity of offence but that is not the case here. Both the courts below has considered his case from the angle of deprivation of psychological and moral characteristics. It has been observed by the lower appellate court that the facts of the case have not been mentioned to show the gravity of the offences but the same has been recorded in order to indicate criminality of approach of the Appellant as to how in a daring manner he had committed the offence. It reflects his criminal mind and criminal associations he is attached with.

From the above discussion, there is no merit in this revision which is dismissed. Bail prayer of the revisionist is declined by confirming impugned orders passed by Juvenile Justice Board dated 2.2.2011 and lower appellate court dated 26.2.2011.