Rajan S/O Rajendra ... Applicant (In ... vs State Of Uttarakhand on 11 June, 2021

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Uttarakhand High Court

Rajan S/O Rajendra ... Applicant (In ... vs State Of Uttarakhand on 11 June, 2021

Bench: Sharad Kumar Sharma

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
                   Original Jurisdiction

               1st Bail Application No.2111 of 2020
              Order on bail application of the accused

Rajan S/o Rajendra                                     ... Applicant (in jail)
                                         Vs
State of Uttarakhand                                   ... Opp. Party


Mr. Tapan Singh, Advocate for the applicant.
Mr. V.K. Gemini, Deputy Advocate General for the State of Uttarakhand.


Hon'ble Sharad Kumar Sharma, J.

The applicant, herein, to the present Bail Application, is alleged to be engaged in the commission of the offences under Sections 363, 366-A, 376 (2) (dha) of the IPC and Section 5 (Tha) (´a) (ii)/6 of the POCSO Act, 2012, which was registered against him, on 17.07.2020, at Police Station Piran Kaliyar, District Haridwar, by way of Case Crime No. 73 of 2020.

2. The case of the applicant, for the purposes of seeking bail and his consequential release, from his alleged involvement in the commission of the said offences, is that, though he admits the fact that he is named in the FIR and the prosecurtix/Shalu, who on the date of the commission of the offence, was shown in the FIR, to be a student of Class-XII and was shown to be of 17 years of age. According to his case, she was major. He further submitted that no offence as such, which has been complained of in the FIR, would be made out against him, under the POCSO Act, once the factum of the prosecutrix being major on the date of commission of offence is established. In continuation to his argument, he further submits, that the prosecutrix, since being a consenting partner, and having voluntarily entered into 2 the physical relationship, as a consequence of which, she has conceived and became pregnant, hence, the offence under Section 376 (2) (Dha) of the IPC, would not be made out against him, because since the factum of having became pregnant was not divulged in the set of allegation levelled in the FIR.

3. He submits, that in order to substantiate his argumentm it was that the prosecutrix was major on the date of the commission of the offence; for the said purposes, he makes a reference and places reliance on the date of birth, as was recorded in the family register, which according to the applicant, is recorded and shown to be 17th December, 2001, whereas, the complainant's case is that the prosecutrix, who was a student of class- XII, and since as per the school records, her date of birth was 7th July, 2003, hence, according to the complainant, on the basis of the date of birth, which was recorded in the school records, she was minor and the offence complained of would be specifically made out against the applicant.

4. The facts of the case, were that the incident had chanced in the night of 14th July, 2020, when it was alleged by the complainant that his daughter Shalu, who was minor, has been enticed by the applicant and she had eloped with him and later on, on getting and collecting the necessary information, he has registered an FIR on 17.07.2020, and the applicant was later on arrested on 19th July, 2020.

5. When this Bail Application was filed, the learned Government Advocate, was directed to place on 3 record the statements, and other documents, by virtue of the orders passed by the Coordinate Benches of this Court on 28th October, 2020 and 12th May, 2021, and in compliance thereto, the learned Government Advocate, has supplied the documents on record, a copy of which, was also supplied to the learned counsel for the applicant.

6. In the medical examination report, which had been thus submitted, the prosecutrix has made a statement before the Doctor, who had medically examined her, that she had voluntarily gone with the applicant, she had stayed with him in a rented room and she also stated that later on she got married in the temple on 15th July, 2020. She further stated that she had sexual relationship, but later on when she was returning, she was apprehended by the Police from Dehradun, at Hakimpur, and consequently, the applicant was arrested, for his alleged commission of offence, with the minor prosecutrix.

7. In the medical examination report, the opinion, which was expressed therein, by the Doctor, was that as per the supplementary medical report, it was observed that the prosecutrix was pregnant, and it was as a consequence of the physical relationship with the applicant, but though even her consistent stand in the statement, which was recorded by the prosecutrix under Section 161 of the Cr.P.C., was consistent that she had an affair with the applicant for couple of year and had eloped with him on 14th July, 2020, and stayed in a rented accommodation, in an adjoining lane to the Synergy Hospital, Dehradun. But, in her statement 4 which was recorded by her before the Court below under Section 164 of the Cr.P.C., the prosecutrix has made a statement that the applicant has made the prosecutrix, smell some medicine, due to which, she became unconscious, and in that physical and mental stage, he has forcefully established physical relationship, against her wishes.

8. She has submitted that on account of the non- consenting physical relationship having been established, and she could realize the fact of her pregnancy only after 1-1/2 months, from the date of occurrence and she stated that on the medical examination, she came to know that she was pregnant and had specifically denied that there was no marriage, which was ever voluntarily soleminzed between them.

9. In the pathological report, which was placed on record, the factum of pregnancy was also proved to be positive and that fact of conception of pregnancy was even got established by the statement of the Medical Officer of the Government Hospital, Roorkee, District Haridwar, who had examined the prosecutrix. The chargesheet has been submitted, being Charge Sheet No. 73 of 2020, dated 16th August, 2020, where the Investigating Officer has recorded, that after examination of as many as 13 witnesses, he has reported that the offence stood established against the present applicant, for the offences which were complained of against him in the FIR.

10. The controversy, which has been argued, while pressing the Bail Application, as it has been agitated by 5 the learned counsel for the applicant, was to the effect that, in fact, no offence as complained of could be said to be established against the applicant, for the reason being that the family register since being an authentic document, would fall to be public document, which would be readable in evidence, as per the Section 35 of the Evidence Act. Section 35 of the Evidence Act reads as under :-

"35. Relevancy of entry in public record [or an electronic record], made in performance of duty.--An entry in any public or other official book, register or record [or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record [or an electronic record] is kept, is itself a relevant fact."

11. The implication of Section 35 of the Evidence Act, which is being sought to be pressed into at the stage of consideration of the Bail Application, is on the pretext that he has interpreted the entries which were made in the family register, as to be a public record and public document, and those entries will itself have its evidentiary value, for the purposes of determination of the offences under Section 5 (Tha) (´a) (ii)/6 of the Protection of Children from Sexual Offences Act, 2012.

12. This argument of the learned counsel for the applicant cannot be accepted by this Court at this stage, for the purposes of placing credence on the family 6 register for the purposes of considering the bail application, in the absence of being able to establish, that it falls to be a document within the domain of being a public record and also because on account of the failure to show any statutory provisions or any authority under which, the family register has been itself statutorily prepared to be read in evidence, which otherwise in common parlance is read for the purposes of revenue entries, for revenue matters and family lineage.

13. Hence, the plea of Section 35 of the Evidence Act, cannot be read and pressed into play, for the purposes of present Bail Application, based on the entries made in the family register.

14. Alternatively, he has also argued, that if Section 8 of the Registration of Birth and Death Act, 1969, is taken into consideration, in that eventuality too, the family register could be read in evidence. This Court is afraid and is not in agreement, to accept this argument too for the reason that the provisions contained under Section 7 of the Registration of Births and Deaths Act, 1969, itself contemplates that it is a legal embargo, which has been casted upon a person, to get mandatorily register birth and death before the Registrar, as defined under Section 7 of the Act, who has, and has been made to be an officer competent and appointed by the State Government for the purposes of registration of birth and death. Section 7 and 8 of the Act read as under :-

"7. Registrar (1) The State Government may appoint a Registrar for each local area comprising the area within the jurisdiction of a municipality, Panchayat or other local authority or any other area or a combination of any two or more of them :

Provided that the State Government may appoint in the case of a municipality, Panchayat or other local authority, any officer or other employee thereof as a Registrar.

(2) Every Registrar shall, without fee or reward, enter in the register maintained for the purpose all information given to him under section 8 or section 9 and shall also take steps to inform himself carefully of every birth and of every death which takes place in his jurisdiction and to ascertain and register the particulars required to be registered.

(3) Every Registrar shall have an office in the local area for which he is appointed.

(4) Every Registrar shall attend his office for the purpose of registering births and deaths on such days and at such hours as the Chief Registrar may direct and shall cause to be placed in some conspicuous place on or near the outer door of the office of the Registrar a board bearing, in the local language, his name with the addition of Registrar of Births and Deaths for the local area for which he is appointed, and the days and hours of his attendance.

(5) The Registrar may, with the prior approval of the Chief Registrar, appoint Sub-Registrars and assign to them any or all of his powers and duties in relation to specified areas within his jurisdiction.

8. Persons required to register births and deaths (1) It shall be the duty of the persons specified below to give or cause to be given, either orally or in writing, according to the best of their knowledge and belief, within such time as may be prescribed, information to the Registrar of the several particulars required to be entered in the forms prescribed by the State Government under sub-section (1) of section 16,-

(a) in respect of births and deaths in a house, whether residential or non-residential, not being any place referred to in clauses (b) to (e), the head of the house or, in case more than one household live in the house, the head of the household, the head being the person, who is so recognized by the house or the household, and if he is not present in the house at any time during the period within which the birth or death has to be reported, the nearest relative of the head present in the house, and in the absence of any such person, the oldest adult male person present therein during the said period;

(b) in respect of births and deaths in a hospital, health center, maternity or nursing home or other like institution, the medical officer in charge or any person authorized by him in this behalf;

(d) in respect of births and deaths in a choultry, chattram, hostel, dharmasala, boarding house, lodging house, tavern, barrack, toddy shop or place of public resort, the person in charge thereof ;

(e) in respect of any new-born child or dead body found deserted in a public place, the headman or other corresponding officer of the village in the case of a village and officer in charge of the local police station elsewhere : Provided that any person who finds such child or dead body, or in whose charge such child or dead body may be placed, shall notify such fact to the headman or officer aforesaid ;

(f) in any other place, such person as may be prescribed.

(2) Notwithstanding anything contained in sub-section (1), the State Government, having regard to the conditions obtaining in a registration division, may be order require that for such period as may be specified in the order, any person specified by the State Government by designation in this behalf, shall give or cause to be given information regarding births and deaths in a house referred to in clause (a) of sub- section (1) instead of the persons specified in that clause."

15. The family register does not fall to be a document, which could be covered on a conjoint reading of Section 7 and 8 of the Act of 1969. Hence, this argument cannot be accepted.

16. In response to the argument of the applicant's Counsel, the learned Counsel for the State, Mr. V.K. Gemini, the learned Deputy Advocate General, representing the State, while opposing the bail application has made reference to the Juvenile Justice (Care and Protection of Children) Act, 2000. He 9 submits that since the said Act being special legislation, that in itself under the provisions of the Act, had formulated the Rules under Section 68 of the Act, which is the rule making power, called as Juvenile Justice (Care and Protection of Children) Rules, 2007 and under Rule 12 of the said Rules provides that the date of birth, which has been as recorded in the matriculation or equivalent certificate or date of birth recorded from the school, would be determined as to be the authentically accepted date of birth for the purpose of prosecution, to be carried, for the offences which are registered under the POCSO Act. Rule 12 of the Rules, 2007, is extracted hereunder :

"12 Procedure to be followed in determination of Age.- (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i),

(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or Ihe juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub- rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

17. The argument of the learned counsel for the applicant, while pressing the Bail Application, for the offences under the POCSO Act of 2012, has to be looked into from a different perspective and in co-relation to the statements and objects, for which, the Act was legislated by the Government of India, considering the implications of Sub-clause (3) of Article 15 of the Constitution of India, conferring the State, with the responsibility to make special provisions for the purposes of protection of children; to be read the directives principles of the State Policy as contained under Article 39, that it should be rather the State's endeavour to secure justice and protection from abuses to the children and their childhood and youth, they are to be protected from being exploited.

18. The said intention of the Act, was on the basis of the United Nations Convention of rights of Children, which was ratified by India on 11th December, 1992, where the responsibility was expected to be exclusively shouldered on the State to undertake appropriate bi- lateral and multi-lateral measures to prevent the inducement or coercion of the child to engage in unlawful sexual activities and its exploitation.

19. On account of the persistent surge of rape and gang rapes on women, between 12 to 16 years of age, the said aspect was taken into consideration and, by virtue of which, the Amendment Act No. 22 of 2018, was legislated by the Criminal Law (Amendment) Ordinance, 2018, whereby, it replaced the Criminal Law (Amendment) Ordinance of 2018, and certain additional factors were 12 introduced for the purposes of considering the Bail Application, and it provided as under :-

"3. It is, therefore, proposed to introduce the Criminal Law (Amendment) Bill, 2018 to replace the Criminal Law (Amendment) Ordinance, 2018, which, inter alia, provides for --

(a) punishment for the offence of rape from the minimum imprisonment of seven years to ten years, which is extendable to imprisonment for life;

(b) punishment for the offence of rape on a woman under sixteen years of age shall be rigorous imprisonment for a term not less than twenty years but may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and shall also be liable to fine;

(c) punishment for the offence of rape on a woman under twelve years of age shall be rigorous imprisonment for a term not less than twenty years but may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and with fine or with death;

(d) punishment for the offence of gang rape on a woman under sixteen years of age shall be imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and with fine;

(e) punishment for the offence of gang rape on a woman under twelve years of age shall be imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and with fine or with death;

(f) investigation in relation to all rape cases shall be completed within a period of two months from the date on which the information recorded by the officer-in-charge of the police station;

(g) completion of inquiry or trial relating to the offence of rape, within a period of two months;

(h) dispose of an appeal against a conviction or a acquittal in rape cases within a 13 period of six months from the date of filing of the appeal;

(i) the provisions of anticipatory bail shall not be applicable in cases of rape or gang rape of woman under sixteen and twelve years of age;

(j) consequential amendments in the Indian Penal Code, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the Protection of Children from Sexual Offences Act, 2012 relating to the cases of rape, gang rape of the woman below the age of sixteen years, twelve years, repeat offenders, to extend the applicability of compulsory registration of FIRs, fine imposed to be paid to victim, facilitate better recording of evidence and protect the dignity of rape survivor and treatment free of cost in hospitals."

20. Even the definition clause, as contained under Sub-section (d) of Section 2 of the POCSO Act of 2012, defines "child" as under :-

"(d) "Child" means any person below the age of eighteen years;"

21. Under Sub-section (2) of Section 2, of the POCSO Act of 2012, it provides that where the expression used in the definition clause of the Act, does not deal with this particular situation in its complete manner, in that eventuality, the definition or the expressions which has been given under the IPC, Cr.P.C., Juvenile Justice Act of 2000, and the Information and Technology Act, that will have the same meaning assigned to the said Codes to be made applicable for the offences, which are committed and are being tried, under the POCSO Act of 2012. Sub-section (2) of Section 2 of the POCSO Act of 2012, reads as under :-

"(2) the words and expression used herein and not defined but defined in the Indian Penal Code (45 of 1860), the Code of Criminal Procedure, 1973 (2 of 1974), the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) and the Information Technology Act, 2000 (21 of 2000) shall have the meaning respectively assigned to them in the said Codes or the Acts."

22. The aforesaid ratio, for the purposes of determining the child below 18 years of age, was an aspect which was widely dealt with by the Hon'ble Apex Court in a judgment reported in (2017) 15 SCC 133, Eera Vs. State (NCT of Delhi) and another, wherein, it has been laid down that the child means a person below 18 years of age, and any departure in its interpretation to the chronology of age of maturity, or understanding, or the mental age of the child to understand right or wrong, cannot be introduced for the purposes of determining the age as provided Sub-section (d) of Section 2 to be read with Juvenile Justice Act of 2000. Relevant para 133, 134 and 139 are extracted hereunder, which lays down the principles, as to what the child would mean for the sexual offences and abuses under POCSO Act of 2012 :-

"133. The Statement of Objects and Reasons of the 2012 Act is set out hereunder:

"Statement of Objects and Reasons.--Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Further, Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity.

2. The United Nations Convention on the Rights of Children, ratified by India on 11-12-1992, requires the State parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity;

(b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials.

3. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the "Study on Child Abuse: India 2007" conducted by the Ministry of Woman and Child Development. Moreover, sexual offences against children are not adequately addressed by the extant laws. A large number of such offences are neither specifically provided for nor are they adequately penalised. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.

4. It is, therefore, proposed to enact a self-

contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well-being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences.

5. The Bill would contribute to enforcement of the right of all children to safety, security and protection from sexual abuse and exploitation.

6. The notes on clauses explain in detail the various provisions contained in the Bill.

7. The Bill seeks to achieve the above objectives." Para 1 of the Statement of Objects and Reasons makes it clear that the Act's reach is only towards the protection of children, as ordinarily understood. The scope of the Act is to protect their "childhood and youth" against exploitation and to see that they are not abused in any manner.

134. Section 2(1)(d), with which we are directly concerned, is set out as under:

"2. Definitions.--(1) In this Act, unless the context otherwise requires--

(a)-(c) * * *

(d) "child" means any person below the age of eighteen years."

One look at this definition would show that it is exhaustive, and refers to "any person", an elastic enough expression, below the age of 18 years. "Year" is defined under the General Clauses Act as follows:

"3. (66) "year" shall mean a year reckoned according to the British calendar."

This coupled with the word "age" would make it clear that what is referred to beyond any reasonable doubt is physical age only.

139. A reading of the Act as a whole in the light of the Statement of Objects and Reasons thus makes it clear that the intention of the legislator was to focus on children, as commonly understood i.e. persons who are physically under the age of 18 years. The golden rule in determining whether the judiciary has crossed the Lakshman Rekha in the guise of interpreting a statute is really whether a Judge has only ironed out the creases that he found in a statute in the light of its object, or whether he has altered the material of which the Act is woven. In short, the difference is the well-known philosophical difference between "is" and "ought". Does the Judge put himself in the place of the legislator and ask himself whether the legislator intended a certain result, or does he state that this must have been the intent of the legislator and infuse what he thinks should have been done had he been the legislator. If the latter, it is clear that the Judge then would add something more than what there is in the statute by way of a supposed intention of the legislator and would go beyond creative interpretation of legislation to legislating itself. It is at this point that the Judge crosses the Lakshman Rekha and becomes a legislator, stating what the law ought to be instead of what the law is."

23. The aforesaid judgment means that where the "child", word has been used, it also adds the word "below age of 18 years". Meaning thereby, there is a specific cut-off of age, for the purposes of bringing an individual, 17 within the definition of a "child", and the use of the word, "below the age of 18 years", itself would include any male or female individual, who is yet to attain the age of 18 years. The chronology of the biological age has been determined to be the safest yardstick, this analogy has been, that in order to referring a person having metal retardation, which may be due to that standards of mental retardation, which is altogether a different perspective to be taken into consideration, even when a child has developed a reasonable understanding, then too, he or she, would continue to be a child for the purposes of the Act, and the offences.

24. Hence, the aforesaid judgment of Eera (Supra) provided that the concept of mental age or stage of child, cannot be read in by the Court in order to defeat the very object of the legislation to provide remedy for the malady, while the legislature intends to protect of the minor from the commission of the criminal offences, and hence, that is why, the age has to be strictly construed; as to be below 18 years, and for the said purposes, it has been rightly argued by the learned Government Advocate that the provisions of Juvenile Justice Act of 2000, and the Rules framed thereunder, since has been saved by Sub- section (2) of Section 2 of the POCSO Act of 2012, the determination of age, would be on the basis of the provisions of the Rules also as it has been framed under the Juvenile Justice Act of 2000.

25. In yet another judgment reported in (2017) 7 SCC 578, Exploitation of Children in Orphanages in State of Tamil Nadu, in RE Vs. Union of India and others, it has laid down that it is a beneficial piece of 18 legislation envisaged for the protection of children in need of care and protection and it should be extended strictly to such childrens, in fact, require State's care and protection and, hence, the very purposes of the said Act, would be met if the age of the child is taken into consideration from the perspective of Sub-section (d) of Section 2 of the POCSO Act, 2012, to be read with Sub- section (2) of Section 2 of the Act, and hence, in view of the aforesaid, the argument, which has been extended by the learned counsel for the applicant, for the purposes of determining the age, on the basis of Registration of Births and Deaths Act, 1969, would not be made applicable, as it has got altogether a different legislative intend and connotation. The relevant para of the aforesaid judgment are extracted hereunder :-

"60. In this context, it is pertinent to note that India acceded to the Convention on the Rights of the Child (CRC) on 11-12-1992. Article 19 of the CRC obligates the State parties to "take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse...."

63. Who is a child in need of care and protection? The provisions of the Protection of Children from Sexual Offences Act, 2012 (for short "the POCSO Act") do not provide any definition of a child in need of care and protection. But no one can deny that a child victim of sexual abuse or sexual assault or sexual harassment is a child in need of care and protection. Similarly in a given case, a child accused of an offence and brought before the Juvenile Justice Board or any other authority might also be a child in need of care and protection.

64. Even though a child in need of care and protection is defined in Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "the JJ Act") the definition does not specifically include some categories of children. Consequently, we are of the view that since the JJ Act is 19 intended for the benefit of children and is intended to protect and foster their rights, the definition of a child in need of care and protection must be given a broad interpretation. It would be unfortunate if certain categories of children are left out of the definition, even though they need as much care and protection as categories of children specifically enlisted in the definition. Beneficial legislations of the kind that we are dealing with demand an expansive view to be taken by the courts and all concerned.

65. In Workmen v. American Express International Banking Corpn. this Court held in para 4 of the Report that: (SCC p. 76) "4. The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced.""

26. Even otherwise also, logically in common parlance also and in normal social life also, wherever a controversy emerges, pertaining to the determination of date of birth of a person, its always the date of birth, which is recorded in the High School Certificate, which is taken and readily accepted, as to be the basis for determining the date of birth or age, which in the present circumstances of the case, and as per the school records, the date of birth of the prosecutrix since being 11th July, 2003, the prosecutrix was determined to be minor on the date of commission of the offence, i.e. on 14th July, 2020, and hence, the offences, which are complained of, seems to be prima facie made out, against the applicant, under the POCSO Act.

27. Hence, this Court is not inclined to grant bail to the present applicant. Hence, the Bail Application is rejected.

28. However, it is made clear that whatsoever observation, which has been made by this Court, while considering the present Bail Application, is exclusively tentative in nature for the purposes of considering the Bail Application only, and it may not affect the trial which has to be decided independently.

(Sharad Kumar Sharma, J.) 11.06.2021 Shiv

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