HASINA KHATOON Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard the learned counsels for the parties. This criminal revision application has been preferred by the petitioner for cancellation of the bail granted to the O.P. No. 2 by the judgment dtd. 14/2/2022 passed by Additional Sessions Judge-I Pakur in Cr. Appeal No. 4 of 2022, C.N.R. No. JHPK01-000222-2022 arising out of Pakur (M) P.S. Case No. 249 of 2021 corresponding to Children Case No. 05 of 2022 by which the learned trial court has granted the bail to the O.P. No. 2.

(2.) The prosecution case as alleged in the FIR was that on 22/7/2021, the informant (petitioner) on the occasion of "Bakrid" the Opposite Party No. 2, Nasim Shekh at evening 05.00 p.m. came into the house of the petitioner and started doing obscene act with the petitioner and told her that he would marry her and on that pretext, forcibly committed rape upon her and promised to marry and in this way, the opposite party no. 2 continued to commit rape upon the petitioner and on 29/11/2021 at panchayati no result came out. Thereupon the Mukhiya of the village come to the mother of the petitioner /informant and asked her to take Rs.10,000.00 and get the dispute ended and also threatened her that she would face dire consequences if she would file a case regarding this.

(3.) Learned counsel appearing on behalf of the petitioner submitted that the age of the opposite party no. 2 on the date of occurrence was determined as 17-18 years and on the date of occurrence the said O.P. No. 2 was declared as child in conflict with law age between the age of 17 to 18 years. Further, it has also been pointed out by the learned counsel appearing for the petitioner that the Juvenile Justice Board vide order dtd. 9/2/2022 referred the matter u/s 15 of the Juvenile Justice Act, 2015 to the Children Court, Pakur taking into consideration that the child in conflict with law aged 17-18 years had committed heinous offence punishable u/s 376 of IPC and 4/8 of POCSO Act of 2012 and referred the entire records of the case on 9/2/2022 to the Children Court u/s 15 of the Juvenile Justice Act, 2015 for regular hearing of the case as major offender. Further it has been submitted that the bail application of Opp. No. 2 was already rejected by the Juvenile Justice Board on 28/1/2022 and thereafter the O.P. No. 2 had preferred the Criminal appeal No. 4/22 before the Children Court for the grant of bail challenging the order of Board dtd. 28/1/2022. Further, it has been submitted on behalf of the petitioner that during the pending of the Criminal Appeal No. 4/2022, the entire case record was transmitted to the Children Court u/s 15 of the Juvenile Justice Act, 2015 by the Juvenile Justice Board by taking into consideration that the child in conflict with law was aged between to 17 to 18 years from the date of occurrence and the nature of crime was heinous. In this background, it has further been submitted by learned counsel appearing on behalf of the petitioner that the lower appellate court i.e. Children Court allowed the Criminal Appeal No. 4 of 2022 by which the appellant was directed to be enlarged on bail on furnishing bail bond of Rs.7,000.00 (Rupees Seven Thousands Only) with two sureties of like amount each subject to the conditions as laid down in the impugned order and therefore it is submitted that judgment passed in Criminal Appeal No. 4 of 2022 on 14/2/2022 is bad in law because the entire case record was transmitted to the Children Court being the trial court for the trial of the case u/s 15 of the Juvenile Justice Act, 2015 and hence the grant of bail on 14/2/2022 vide Criminal Appeal No. 4 of 2022 in the capacity of appellate court being subsequent development that the said appellate court became trial court is bad in law and is fit to be set aside.