Soyaib Alias Shaib Juvenile vs State Of Uttarakhand

Sharad Kumar Sharma, J

On 7th April, 2019, an F.I.R. was registered being F.I.R. No. 0097 as against the main accused persons Sadiq, Shakib and Shebu, wherein, it was contended that they are responsible for the commission of offence under Sections 376, 328, 34 IPC and under Section ¾ of the POCSO Act, on the daughter of the complainant Mehtab.

As per the allegations, which has been mentioned in the F.I.R. and as also recorded in the statements as recorded under Section 161 of the prosecutrix, one fact which is established is that she is a minor and the second fact which is also established is that out of the main accused persons, the sole allegations of commission of an offence under Section 376 IPC has been levelled against the present revisionist and specific role as has been assigned to him of committing rape on the prosecutrix rather it was he who was actually involvement in the commission of the offence has been narrated in the F.I.R. as well as in the statement of the prosecutrix. Hence, so far as the other co-accused person are concerned, there might have been some indulgment in the commission of the offence, as far as it relates to the impact of Section 34 IPC but were not alleged to be actually involved in commission of offence under Section 376 IPC.

Considering the gravity of offences and also the argument as has been extended by the learned counsel for the revisionist that since the accused as well as the victim both were minor, hence a pragmatic and lenient view to be taken in relation to considering the present revision as against the rejection of the bail application by both the Courts below, i.e. Board and by Appellate Cout. He further submits that since the victim and the accused person were in close relationship and they had an affair, the commission of an offence was a consented act of the victim and, hence, the revisionist cannot be solely attributed for commission of an offence under Section 376 IPC.

This Court need not to observe that as far as the consent of the minor/prosecutrix is concerned, i.e. of no relevance in order to seek an exoneration of the commission of the offence for the purposes of bail. What he tries to argue is that when the accused is also minor, then too, an identical latitude has to be shown to the accused person also irrespective of his role in commission of offence apparently.

There is no such legal preposition, which has been floated or placed before this Court by the revisionist that when the accused is also a minor, a same latitude is to be extended with regard to the commission of the offence as the latitude has been granted to the prosecutrix with regard to the extension of the consent. He further submits that the other two co-accused persons, who are admittedly major had already been granted bail. As far as the grant of bail to the other co-accused major person is concerned, in which the FIR or in the statement of the prosecutrix, no specific role has been assigned to them in commission of an offence under Section 376 IPC nor any specific allegation has been made out or alleged against the other co-accused persons, who have been granted bail. Hence, the nature of the role, which has been played by the present revisionist in the commission of the offence is altogether a distinct and specific as to the other co-accused persons, who have been granted bail. Hence, no parity can be granted to the present revisionist.

At the time when the Revision was entertained, the records of the Sessions Court were summoned before this Court. The contention of the learned counsel for the revisionist is that on account of summoning the record by this Court, the proceedings of the Sessions Trial is pending.

Hence, while declining to consider the bail application as against the rejection order concurrently upheld by both the Courts below, the Revision is dismissed, as a specific allegation of commission of offence under Section 376 IPC is prima facie made out against the revisionist. However, the Registry is directed to forthwith remit the records of the Sessions Trial before the Court below and the Court below is requested to decide the Criminal Case itself on its exclusive merits within a period not later than nine months from the date of production of the certified copy of this order.

Subject to the above observations, the Revision lacks merit and is accordingly dismissed.