Allahabad High Court
Vishal Kannaujiaya vs State Of U.P. And Another on 2 December, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 89 Case :- CRIMINAL REVISION No. - 31 of 2021 Revisionist :- Vishal Kannaujiya Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Rajnish Shukla Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
1. This is a revision under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short the J.J. Act, 2015), instituted against the order dated 26.8.2020 passed by the Principal Magistrate, Juvenile Justice Board, Gorakhpur in Case Crime no. 09 of 2020 (State Vs. Vishal Kannaujiya), under Section 376 IPC read with Section 5/6 of the Prevention of Child from Sexual Offence Act, 2012, hereinafter referred to as the ''POCSO Act', P.S. Khajani, District Gorakhpur as well as the order dated 27.11.2020 passed by learned Addl. Sessions Judge/ Special Judge (POCSO Act), Court No.1, Gorakhpur, in Criminal Appeal No. 62 of 2020, Vishal Kannaujiya Vs. State of U.P. and others refusing the bail to the revisionist.
2. Brief facts of the case setforth by the revisionist are that the prosecution has alleged that the victim Miss Neeraj Kannaujiya, daughter of Ram Laut Kannaujiya is 17 years old, as whereas revisionist-juvenile being Master Vishal Kannaujiya son of Rajesh Kannaujiya was aged about 16 years, they were found wandering in a suspicious condition in Kasba Khajani on the unlucky day, i.e, 28.12.2019. On interception, the juvenile as well as the victim Neeraj Kannaujiya apprised the police personnel that they were not willing to go to their respective houses as they wanted to live together. Faced with these circumstances, one Sri Rudra Pratap Singh, Sub-Inspector, P.S. Khajani, District Gorakhpur made a communication to the designated official of Child Welfare Committee, District Gorakhpur clearly narrating the fact that the juvenile and the victim both of them were not agreeable to go to their respective houses and further despite the fact that information was provided to the parents of the juvenile and the victim, none of them approached them to take custody of the juvenile or the victim and thus request was being sought to be made to them that the victim as well as the revisionist be taken into the custody of the Child Welfare Committee, District Gorakhpur for their upkeep, care and betterment.
3. It appears that on the same day, i.e, on 28.12.2019, G.D. entry was also made narrating the facts, which had been communicated on 28.12.2019 by the Sub-Inspector, P.S. Khajani, Gorakhpur to the Child Welfare Committee, Gorakhpur. Thereafter, FIR was lodged by one Sri Krishna Sinha being the member of the Child Welfare Committee, Gorakhpur before the police station Khajani, Gorakhpur dated 16.1.2020 registered as Case Crime no. 0009 of 2020 with an allegation that on 28.12.2019 itself the police officials found the revisionist and the victim together in suspicious condition and further on medical examination, it revealed that UPT was positive depicting that she was pregnant. It was also alleged that the father of the victim had not lodged the FIR because the victim was a minor and that will create negative impact upon the character of the victim. Statement of the complainant being Sri Krishna Sinha, Chairman / Member, Child Welfare Committee, District Gorakhpur was recorded on 17.1.2020 under Section 161 CrPC, wherein the same facts were reiterated, which already found place in the FIR. It has also come on record that despite being request administered to the parents of the victim, as well as the victim for getting her medically examined, she refused for the same. The statement of the victim was also recorded under Section 164 CrPC, a certified copy of the same is at page 70 of the paper book, wherein the victim has deposed that she is of 17 years of age and she is in love with the revisionist for the past three months and she according to her sweet will has married with the revisionist. Consequent to the initiation of the proceedings emanating from the FIR, the revisionist is in observation home since 22.7.2020, and the proceeding has been registered as Case Crime no. 9 of 2020, under Section 376 IPC read with Section 5/6 of POCSO Act.
4. The Court of Addl. Sessions Judge/ Special Judge (POCSO Act), Court No.1, Gorakhpur in the proceedings in Misc. Case No. 260 of 2020, CNR No. UPGK01-003610-2020 (State of U.P. Vs. Vishal Kannaujiya) by virtue of the order dated 21.7.2020 declared the revisionist to be juvenile, while determining his date of birth to be 1.4.2003 holding that he was 16 years 9 months and 15 days of age, i.e. below the age of 18 on the date of occurrence of incident. It has also come on record that District Probation Officer submitted report to the Board on 6.8.2020, according to which there was no good ground entitling the revisionist to be bailed out in terms of the provisions contained under Section 12 of the J.J. Act, 2015. A police report dated 25.8.2020 was also submitted, which also does not find favour with the revisionist.
5. The bail/ release application so preferred for releasing the revisionist on bail was at the first instance rejected by the Court of Principal Magistrate, Juvenile Justice Board, Gorakhpur in Case Crime no.9 of 2020, State vs. Vishal Kannaujiya, which was carried before learned Addl. Sessions Judge/ Special Judge (POCSO Act), Court No.1, Gorakhpur, being Criminal Appeal No. 62 of 2020, Vishal Kannaujiya vs. State of U.P. and others, which also met the same fate and the same was laid to rest by virtue of order dated 27.11.2020.
6. Challenging both the orders, the revisionist is before this Court in the present revision, which purports to be under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
7. Before proceeding further, while deciding the controversy in question it would be profitable to give a brief outline of the philosophy behind the introduction of Juvenile Justice system since inception.
8. The basic idea behind the formulation of the juvenile justice system is to reform, rehabilitate and re-integrate a child in conflict with law and the child in need of care and protection. Obviously, the philosophy in dealing with children committing offence is remarkably different from an adult committing an offence as in that case, different criteria and yardsticks have to be adopted. The first doctrine dealing with children of both the categories is the doctrine parens patriae in a juvenile justice legal system parens patriae, the doctrine that allows the State to step in and serve as a guardian for children, the mentally ill, the incompetent, the illiterate or disable persons, who are unable to take care of themselves.
9. Needless to point out that it refers to public policy power of State to intervene against absurd and inequitable parents, legal guardians or informal care taker and to act as a parent of any child or individual, who is in the need of protection. Normally, the natural parents and family are expected to take care of their child, but when they fail, then the State has to take steps and it has to step into the shoes of the parents and family to provide the same care and protection, as their own parents and family should have been provided for them.
10. With passage of time, the principle of parens patriae shifted to the right approach, which respects the constitutional and procedural rights of a juvenile. A child in conflict with law should be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and, which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in the society.
11. In the Pre-Independence era, first legislation enacted for the children in distress is the Apprentice Act, 1850. It applies to children above the age of 10 and under the age of 18 found to have committed petty offence and vagabonds. Under the Act, the children in distress were to be trained for trade and commerce. "The Preamble of the Apprentice Act, 1850", which explains the idea behind the enactment is quoted hereinunder:
"For better enabling children, and especially orphans and poor children brought up in public charity, to learn trades, crafts and employments, by which, when they came to full age, may gain a livelihood."
12. Thereafter, came into existence the widely known code by the name and nomenclature Indian Penal Code, 1860 enacting various provisions relating to child, which are as under:-
"82. Act of a child under seven years of age.--Nothing is an offence which is done by a child under seven years of age.
83. Act of a child above seven and under twelve of immature understanding.--Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
84. Act of a person of unsound mind.--Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."
13. Section 82 of the Indian Penal Code itself provides that nothing is an offence, which is done by a child under 7 years of age. Further classification has been made, while differentiating from a child, who is below the age of 7, while incorporating Section 83 in the Indian Penal Code, 1860 providing that nothing is an offence, which is done by a child above 7 years of age and under 12, who has not attained sufficient maturity of understanding to judge nature and consequences of his conduct on that occasion. Similarly, Section 84 has also been inserted, which itself provides that nothing is an offence, which is done by a person, who at the time of committing it by the reason of unsoundness of mind, is incapable of knowing the nature of the act or what he is doing is either wrong or contrary to law.
14. Then comes the stage wherein whereat a new legislation by the name and nomenclature of "Reformatory Schools Act, 1876" and its amendments made in 1897 was brought into existence according to which the Government was enjoined to establish reformatory schools for juvenile delinquents. Under the said Act, provision was made to keep juveniles in custody in reformatory school for a time period of 2 to 7 years, but after the attainment of 18 years, they were not to be kept in the Reformatory Schools. In the year 1898, another important legislation for children was brought into existence being Code of Criminal Procedure, 1898, wherein Section 29(B) was inserted, which reads as under:
"29B. Jurisdiction in the case of juveniles. - Any offence, other than one punishable with death or [imprisonment] for life, committed, by any person who at the date when he appears or is brought before the Court is under the age of fifteen years, may be tried by a District Magistrate or a Chief Presidency Magistrate, or by any Magistrate specially empowered by the [State Government] to exercise the powers conferred by Section 8, sub-section (1), of the Reformatory Schools Act, 1897, or in any area, in which the said Act has been wholly or in part repealed by any other law providing for the custody, trial or punishment of youthful offenders, by any Magistrate empowered by or under such law to exercise all or any of the powers conferred thereby.
State Amendments Uttar Pradesh In its application to the State of Uttar Pradesh, Section 29B of the Code of Criminal Procedure, 1898, ceases to apply to any area in which Chapters I and III to Act I of 1952, S. 76(1)."
15. Further Section 399 of the "Code of Criminal Procedure, 1898" reads as under:
"399.(1) When any person under the age of fifteen years is sentenced by any Criminal Court to imprisonment for any offence, the Court may direct that such person, instead of being imprisoned in a criminal jail, shall be confined in any reformatory established by the Government as a fit place for confinement, in which there are means of suitable discipline and of training in some branch of useful industry or which is kept by a person willing to obey such rules as the Government prescribes with regard to the discipline and training of persons confined therein.
(2) All persons confined under this section shall be subject to the rules so prescribed.
(3). This section shall not apply to any place in which the Reformatory Schools Act, 1897, is for the time being in force."
State Amendments Uttar Pradesh
- U.P. Act I of 1952, S. 76.
(2)(a) The Reformatory Schools Act, 1897 (VIII of 1897), which extends to whole of India except State of Jammu and Kashmir, has been extended to States merged in the State of (I) Bombay - See Bom. Act V of 1950, S.S; (2) Madhya Pradesh - See M.P. Act XII of 1950, S.S; (3) Punjab - See Punj. Acts V of 1950, S. 3 and XVIII of 1958, S.4; and (4) Orissa - See Ori. Act, IV of 1950, S. 4. The Act has been extended to the Union Territory of Goa, Daman and Diu - See Reg. XI of 1963."
16. Section 562 of the said Code conferred power upon the Court to release on probation of good conduct youthful offenders under 21 years of age under certain conditions instead of sentencing them to prison. Section 562 of CrPC, 1898 reads as under: -
"562. Power of Court to release certain convicted offenders on probation of good conduct instead of sentencing to punishment. - (1) When any person not under twenty-one years of age is convicted of an offence punishable with imprisonment for not more than seven years, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or [imprisonment for life], and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good onduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behaviour :
Provided that, where any first offender is convicted by a Magistrate of the third class, or a Magistrate of the second class not specially empowered by the [State Government] in this behalf, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class or Sub-divisional Magistrate, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in manner provided by section 380.
[(1.A) Conviction and release with admonition.-- In any case, in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two before whom he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.] (2) An order under this section may be made by any Appellate Court or by the High Court when exercising its power of revision.
(3) When an order has been made under this section in respect of any offender, the High Court may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law:
Provided that the High Court shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.
(4) The provisions of sections 122, 126A and 406A shall, so far as ay be, apply in the case of sureties offered in pursuance of the provisions of this section. ] STATE AMENDMENT Uttar Pradesh (1) In its application to the State of Uttar Pradesh, S. 562 shall stand repealed - See U.P. Act VI of 1938, S.15 (1-2-1939.] Note. - Section 15 of U.P. First Offenders' Probation Act, 1938 (U.P. Act VI of 1938), has been brought in fore in the whole of Uttar Pradesh on and from 1-2-1939-- See U.P. Gaz., 1939, Pt. I, p.99."
17. These provisions along with "Reformatory Schools Act, 1897" made a significant change in the juvenile justice system from punishment to reform and rehabilitation.
18. Thereafter, the recommendations made by the Indian Jail Committee (1919-1920) suggested that juvenile prisoners are amenable to reformation and their detention in prisons is undesirable, for, their simple mind may be polluted permanently by the atmosphere of Jail life. A child offender was mainly a product of unfavourable environment. He was entitled to new opportunities to grow and live in more congenial conditions. The Committee opined that juveniles could be reformed by re-education and proper treatment. It recommended that Borstal institutions should be established for reformation of juveniles. It also recommended for constitution of juvenile courts.
19 Thereafter, under the Juvenile Justice System in India, firstly the Juvenile Court was established under Madras Children Act, 1920.
20. After independence of India in 1947, the Parliament passed the first legislation on children, namely, The Children's Act, 1960. This was made applicable in centrally administered union territories and the States having no juvenile legislation were made free to adopt it. It was passed to function as model legislation and for implementation in union territories. This Act established separate child welfare courts to handle cases relating to neglected children. It also created the position of a Probation Officer to advise and assist the neglected or delinquent children. In addition, it established separate Children's Court for cases related to delinquent juveniles, thereby supporting the judicial process for delinquent and neglected children.
21. It would be relevant to note here that prior to the passing of The Children's Act, 1960, there existed different Children's Act in different States. The most important aspect of the Children's Act, 1960 was complete prohibition of use of police station or jail under any circumstances for children covered within its purview. However, at this stage, Juvenile Justice System in India was not uniform because each State had its own standards, norms and practices.
22. The necessity of a uniform Children Act across the Country gave rise to enactment of Juvenile Justice Act, 1986 (for short 'the Act of 1986').
23. The Act of 1986 promoted the best interest of the juveniles by incorporating the important provisions of Indian Constitution. The Act of 1986 was influenced by 'United Nations Declaration of the Rights of the Child, 1959' and 'United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"), 1985'. The detention of juveniles in police lock-up or jail was abolished by the Act of 1986. It also recommended to establish Juvenile Homes for the reception of neglected juveniles, Special Homes for reception of delinquent juveniles and Observation Homes for the temporary reception of juveniles during pendency of the inquiry and trial and Aftercare Homes for the purpose of taking care of juveniles after discharge from Observation Homes or Special Homes. The object of the Act of 1986 was to protect juvenile from criminalization, penalization and stigmatization. The Act of 1986 repealed various Children's Acts enacted in different States and provided a uniform Juvenile Justice System in India. Boys under the age of 16 and girls under the age of 18 were defined as Juveniles.
24. Noticing various shortcoming in the Act of 1986 when India signed and ratified the 'United Nations Convention of Rights of Children' in December, 1992, the Act of 1986 was repealed and replaced by The Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Act of 2000'), which came into force from 1st April 2001. The Act of 2000 defined the term 'juvenile' as a person who having not completed the age of 18 years. The statement of objects and reasons for the Act of 2000 specified that it was enacted to bring the operation of Juvenile Justice System in conformity with Convention of Rights of Children and other United Nations Instruments signed by India. It incorporated the justice as well as the right approach towards children. It dealt with juveniles in conflict with law and children in need of care and protection.
25. The Act of 2000 was amended in 2006. The Amendment Act, 2006 brought several amendments in the Principal Act. By the amendment, it was made clear that crucial date for determination of age of a juvenile in conflict with law would be the date of commission of offence. Another important change was insertion of Section 7A, which provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case. The amended Act further clarified that under any condition, a juvenile in conflict with law should not be kept in a police lock-up or jail.
26. The Act of 2000 was again amended in 2011 to address gaps in its implementation and make the law more child friendly.
27. As the ill-luck it may be, this country came across two important events, firstly being the brutal gang-rape and secondly the death of a girl (Nirbhaya) in Delhi on 16th December, 2012, which enacted the legislature in a forceful debate, warranting that the legislations, which were in the statute book are ill-equipped and ends over all modifications to tackle the children, who are in the age-group of 16-18.
28. After a long debate, the Juvenile Justice Will was introduced in Lok Sabha on 8.8.2014 and it was passed by the Lok Sabha on 7.5.2015 and Rajya Sabha on 22nd December, 2015 and then the Juvenile Justice (Care and Protection) Act, 2015 (2 of 2016) (hereinafter referred to as the JJ Act, 2015) was given a decent birth and the same came into force with effect from 15.1.2016, after being published in Gazette of India.
29. In order to appreciate the controversy in the best possible manner in the backdrop of the aims and the objects governing the enactment of the said piece of legislation, the Statements of the objects and reasons behind the enactment are to be given a closure look:
"Statement of Objects and Reasons.- Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Articles 39(e) and (f), 45 and 47 further makes the State responsible for ensuring that all needs of children are met and their basic human rights are protected.
2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate measures in case of a child alleged as, or accused of, violating any penal law, including (a) treatment of the child in a manner consistent with the promotion of the child's sense of dignity and worth (b) reinforcing the child's respect for the human rights and fundamental freedoms of others (c) taking into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
3. The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000 to provide for the protection of children. The Act was amended twice in 2006 and 2011 to address gaps in its implementation and make the law more child-friendly. During the course of the implementation of the Act, several issues arose such as increasing incidents of abuse of children in institutions, inadequate facilities, quality of care and rehabilitation measures in Homes, high pendency of cases, delays in adoption due to faulty and incomplete processing, lack of clarity regarding roles, responsibilities and accountability of institutions and, inadequate provisions to counter offences against children such as corporal punishment, sale of children for adoption purposes, etc. have highlighted the need to review the existing law.
4. Further, increasing cases of crimes committed by children in the age group of 16-18 years in recent years makes it evident that the current provisions and system under the Juvenile Justice (Care and Protection of Children) Act, 2000, are ill equipped to tackle child offenders in this age group. The data collected by the National Crime Records Bureau establishes that crimes by children in the age group of 16-18 years have increased especially in certain categories of heinous offences.
5. Numerous changes are required in the existing Juvenile Justice (Care and Protection of Children) Act, 2000 to address the above mentioned issues and therefore, it is proposed to repeal existing Juvenile Justice (Care and Protection of Children) Act, 2000 and re- enact a comprehensive legislation inter alia to provide for general principles of care and protection of children, procedures in case of children in need of care and protection and children in conflict with law, rehabilitation and social re-integration measures for such children, adoption of orphan, abandoned and surrendered children, and offences committed against children. This legislation would thus ensure proper care, protection, development, treatment and social re-integration of children in difficult circumstance by adopting a child-friendly approach keeping in view the best interest of the child in mind.
6. The notes on clauses explain in detail the various provisions contained in the Bill.
7. This Bill seeks to achieve the above objectives."
30. It would be further useful to also quote the Preamble, which for the ready reference is quoted hereinunder:-
"An Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, hereinunder and for matters connected therewith or incidental thereto.
WHEREAS, the provisions of the Constitution confer powers and impose duties, under clause (3) of article 15, clauses (e) and (f) of article 39, article 45 and article 47, on the State to ensure that all the needs of children are met and that their basic human rights are fully protected;
AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the child;
AND WHEREAS, it is expedient to re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000 to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (1993), and other related international instruments."
31. A plain reading of the Preamble as well as the main object behind the enactment of Juvenile Justice Act, 2015 also gets its identity from the Articles of the Constitution of India 1950, the same are as under: -
"Article 15(3): Nothing in this article shall prevent the State from making any special provision for women and children"
"Article 39 (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment"
"Article 45. Provision for free and compulsory education for children The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years."
"Article 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."
32. Thus it can be safely said that the Juvenile Justice Act, 2015 has been enacted to fulfil the objects of the Constitution in Clause (3) of the Article 15, Clauses (e) and (f) of Article 39, Articles 45 and 47, which confers powers and imposes duty upon the State to ensure that all needs of the children are met and their human rights are protected. The relevant provisions of Juvenile Justice Act, 2015, which are germane to the controversy in question needs to be extracted hereinbelow:
"Section 2 (12): "child" means a person who has not completed eighteen years of age;
2(13): "child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence;
2 (14)(a) has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or 2(14)(ix) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or 2(14) (x) who is being or is likely to be abused for unconscionable gains; or
33 "heinous offences" includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more;
45 "petty offences" includes the offences for which the maximum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment up to three years;
54 "serious offences" includes the offences for which the punishment under the Indian Penal Code or any other law for the time being in force, is imprisonment between three to seven years;"
"Section 3. General principles to be followed in administration of Act.-- The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:--
(i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years.
(ii) Principle of dignity and worth: All human beings shall be treated with equal dignity and rights.
(iii) Principle of participation: Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child's views shall be taken into consideration with due regard to the age and maturity of the child;
(iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.
(v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.
(vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.
(vii) Positive measures: All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act.
(viii) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the processes pertaining to a child.
(ix) Principle of non-waiver of rights: No waiver of any of the right of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver.
(x) Principle of equality and non-discrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child.
(xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process.
(xii) Principle of institutionalisation as a measure of last resort: A child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.
(xiii) Principle of repatriation and restoration: Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.
(xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances.
(xv) Principle of diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.
(xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.
Section 4. Juvenile Justice Board. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government shall, constitute for every district, one or more Juvenile Justice Boards for exercising the powers and discharging its functions relating to children in conflict with law under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least three years experience and two social workers selected in such manner as may be prescribed, of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class.
(3) No social worker shall be appointed as a member of the Board unless such person has been actively involved in health, education, or welfare activities pertaining to children for at least seven years or a practicing professional with a degree in child psychology, psychiatry, sociology or law.
(4) No person shall be eligible for selection as a member of the Board, if he --
(i) has any past record of violation of human rights or child rights;
(ii) has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or has not been granted full pardon in respect of such offence;
(iii) has been removed or dismissed from service of the Central Government or a State Government or an undertaking or corporation owned or controlled by the Central Government or a State Government;
(iv) has ever indulged in child abuse or employment of child labour or any other violation of human rights or immoral act.
(5) The State Government shall ensure that induction training and sensitisation of all members including Principal Magistrate of the Board on care, protection, rehabilitation, legal provisions and justice for children, as may be prescribed, is provided within a period of sixty days from the date of appointment.
(6) The term of office of the members of the Board and the manner in which such member may resign shall be such, as may be prescribed.
(7) The appointment of any member of the Board, except the Principal Magistrate, may be terminated after holding an inquiry by the State Government, if he --
(i) has been found guilty of misuse of power vested under this Act; or
(ii) fails to attend the proceedings of the Board consecutively for three months without any valid reason; or
(iii) fails to attend less than three-fourths of the sittings in a year; or
(iv) becomes ineligible under sub-section (4) during his term as a member.
5. ....
6. Placement of persons, who committed an offence, when person was below the age of eighteen years. -(1) Any person, who has completed eighteen years of age, and is apprehended for committing an offence when he was below the age of eighteen years, then, such person shall, subject to the provisions of this section, be treated as a child during the process of inquiry.
(2) The person referred to in sub-section (1), if not released on bail by the Board shall be placed in a place of safety during the process of inquiry.
(3) The person referred to in sub-section (1) shall be treated as per the procedure specified under the provisions of this Act.
7. ...
8. Powers, functions and responsibilities of the Board. -(1) Notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, the Board constituted for any district shall have the power to deal exclusively with all the proceedings under this Act, relating to children in conflict with law, in the area of jurisdiction of such Board.
(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Children's Court, when the proceedings come before them under section 19 or in appeal, revision or otherwise.
(3) The functions and responsibilities of the Board shall include'--
(a) ensuring the informed participation of the child and the parent or guardian, in every step of the process;
(b) ensuring that the child's rights are protected throughout the process of apprehending the child, inquiry, aftercare and rehabilitation;
(c) ensuring availability of legal aid for the child through the legal services institutions;
(d) wherever necessary the Board shall provide an interpreter or translator, having such qualifications, experience, and on payment of such fees as may be prescribed, to the child if he fails to understand the language used in the proceedings;
(e) directing the Probation Officer, or in case a Probation Officer is not available to the Child Welfare Officer or a social worker, to undertake a social investigation into the case and submit a social investigation report within a period of fifteen days from the date of first production before the Board to ascertain the circumstances in which the alleged offence was committed;
(f) adjudicate and dispose of cases of children in conflict with law in accordance with the process of inquiry specified in section 14;
(g) transferring to the Committee, matters concerning the child alleged to be in conflict with law, stated to be in need of care and protection at any stage, thereby recognising that a child in conflict with law can also be a child in need of care simultaneously and there is a need for the Committee and the Board to be both involved;
(h) disposing of the matter and passing a final order that includes an individualcare plan for the child's rehabilitation, including follow up by the Probation Officer or the District Child Protection Unit or a member of a non-governmental organisation, as may be required;
(i) conducting inquiry for declaring fit persons regarding care of children in conflict with law;
(j) conducting at least one inspection visit every month of residential facilities for children in conflict with law and recommend action for improvement in quality of services to the District Child Protection Unit and the State Government;
(k) order the police for registration of first information report for offences committed against any child in conflict with law, under this Act or any other law for the time being in force, on a complaint made in this regard;
(l) order the police for registration of first information report for offences committed against any child in need of care and protection, under this Act or any other law for the time being in force, on a written complaint by a Committee in this regard;
(m) conducting regular inspection of jails meant for adults to check if any child is lodged in such jails and take immediate measures for transfer of such a child to the observation home; and
(n) any other function as may be prescribed.
10. Apprehension of child alleged to be in conflict with law. -(1) As soon as a child alleged to be in conflict with law is apprehended by the police, such child shall be placed under the charge of the special juvenile police unit or the designated child welfare police officer, who shall produce the child before the Board without any loss of time but within a period of twenty-four hours of apprehending the child excluding the time necessary for the journey, from the place where such child was apprehended:
Provided that in no case, a child alleged to be in conflict with law shall be placed in a police lockup or lodged in a jail.
(2) The State Government shall make rules consistent with this Act,--
(i) to provide for persons through whom (including registered voluntary or non-governmental organisations) any child alleged to be in conflict with law may be produced before the Board;
(ii) to provide for the manner in which the child alleged to be in conflict with law may be sent to an observation home or place of safety, as the case may be.
11. ...
12. Bail to a person who is apparently a child alleged to be in conflict with law. - (1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 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 person:
Provided that such person shall not be so released if there appears reasonable grounds for believing 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, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.
(2) When such person having been apprehended is not released on bail under sub-section (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.
(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail.
13. Information to parents, guardian or probation officer. - (1) Where a child alleged to be in conflict with law is apprehended, the officer designated as Child Welfare Police Officer of the police station, or the special juvenile police unit to which such child is brought, shall, as soon as possible after apprehending the child, inform --
(i) the parent or guardian of such child, if they can be found, and direct them to be present at the Board before which the child is produced; and
(ii) the probation officer, or if no probation officer is available, a Child Welfare Officer, for preparation and submission within two weeks to the Board, a social investigation report containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making the inquiry.
(2) Where a child is released on bail, the probation officer or the Child Welfare Officer shall be informed by the Board.
14. Inquiry by Board regarding child in conflict with law.-- (1) Where a child alleged to be in conflict with law is produced before Board, the Board shall hold an inquiry in accordance with the provisions of this Act and may pass such orders in relation to such child as it deems fit under sections 17 and 18 of this Act.
(2) The inquiry under this section shall be completed within a period of four months from the date of first production of the child before the Board, unless the period is extended, for a maximum period of two more months by the Board, having regard to the circumstances of the case and after recording the reasons in writing for such extension.
(3) A preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board.
(4) If inquiry by the Board under sub-section (2) for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated:
Provided that for serious or heinous offences, in case the Board requires further extension of time for completion of inquiry, the same shall be granted by the Chief Judicial Magistrate or, as the case may be, the Chief Metropolitan Magistrate, for reasons to be recorded in writing.
(5) The Board shall take the following steps to ensure fair and speedy inquiry, namely:--
(a) at the time of initiating the inquiry, the Board shall satisfy itself that the child in conflict with law has not been subjected to any ill-treatment by the police or by any other person, including a lawyer or probation officer and take corrective steps in case of such ill-treatment;
(b) in all cases under the Act, the proceedings shall be conducted in simple manner as possible and care shall be taken to ensure that the child, against whom the proceedings have been instituted, is given child-friendly atmosphere during the proceedings;
(c) every child brought before the Board shall be given the opportunity of being heard and participate in the inquiry;
(d) cases of petty offences, shall be disposed of by the Board through summary proceedings, as per the procedure prescribed under the Code of Criminal Procedure, 1973;
(e) inquiry of serious offences shall be disposed of by the Board, by following the procedure, for trial in summons cases under the Code of Criminal Procedure, 1973;
(f) inquiry of heinous offences,--
(i) for child below the age of sixteen years as on the date of commission of an offence shall be disposed of by the Board under clause (e);
(ii) for child above the age of sixteen years as on the date of commission of an offence shall be dealt with in the manner prescribed under section 15.
15. Preliminary assessment into heinous offences by Board. - (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.
Explanation.--For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973:Provided that the order of the Board to dispose of the matter shall be applealable under sub-section (2) of section 101:
Provided further that the assessment under this section shall be completed within the period specified in section 14.
16. Review of pendency of inquiry. - (1) The Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall review the pendency of cases of the Board once in every three months, and shall direct the Board to increase the frequency of its sittings or may recommend the constitution of additional Boards.
(2) The number of cases pending before the Board, duration of such pendency, nature of pendency and reasons thereof shall be reviewed in every six months by a high level committee consisting of the Executive Chairperson of the State Legal Services Authority, who shall be the Chairperson, the Home Secretary, the Secretary responsible for the implementation of this Act in the State and a representative from a voluntary or non-governmental organisation to be nominated by the Chairperson.
(3) The information of such pendency shall also be furnished by the Board to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate and the District Magistrate on quarterly basis in such form as may be prescribed by the State Government.
17. Orders regarding a child not found to be in conflict with law.-- (1) Where a Board is satisfied on inquiry that the child brought before it has not committed any offence, then notwithstanding anything contrary contained in any other law for the time being in force, the Board shall pass order to that effect.
(2) In case it appears to the Board that the child referred to in sub-section (1) is in need of care and protection, it may refer the child to the Committee with appropriate directions.
18. Orders regarding child found to be in conflict with law. - (1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,--
(a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian;
(b) direct the child to participate in group counselling and similar activities;
(c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board;
(d) order the child or parents or the guardian of the child to pay fine:
Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated;
(e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child's well-being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child's well-being for any period not exceeding three years;
(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home:
Provided that if the conduct and behaviour of the child has been such that, it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.
(2) If an order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders to--
(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing at a specified place; or
(v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences.
19. Powers of Children's Court. - (1) After the receipt of preliminary assessment from the Board under section 15, the Children ́s Court may decide that--
(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;
(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of section 18.
(2) The Children's Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.
(3) The Children's Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:
Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.
(4) The Children's Court shall ensure that there is a periodic follow up report every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill-treatment to the child in any form.
(5) The reports under sub-section (4) shall be forwarded to the Children'́s Court for record and follow up, as may be required.
"Section-27. Child Welfare Committee.-- (1) The State Government shall by notification in the Official Gazette constitute for every district, one or more Child Welfare Committees for exercising the powers and to discharge the duties conferred on such Committees in relation to children in need of care and protection under this Act and ensure that induction training and sensitisation of all members of the committee is provided within two months from the date of notification.
(2) The Committee shall consist of a Chairperson, and four other members as the State Government may think fit to appoint, of whom atleast one shall be a woman and another, an expert on the matters concerning children.
(3) The District Child Protection Unit shall provide a Secretary and other staff that may be required for secretarial support to the Committee for its effective functioning.
(4) No person shall be appointed as a member of the Committee unless such person has been actively involved in health, education or welfare activities pertaining to children for atleast seven years or is a practicing professional with a degree in child psychology or psychiatry or law or social work or sociology or human development.
(5) No person shall be appointed as a member unless he possesses such other qualifications as may be prescribed.
(6) No person shall be appointed for a period of more than three years as a member of the Committee.
(7) The appointment of any member of the Committee shall be terminated by the State Government after making an inquiry, if--
(i) he has been found guilty of misuse of power vested on him under this Act;
(ii) he has been convicted of an offence involving moral turpitude and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;
(iii) he fails to attend the proceedings of the Committee consecutively for three months without any valid reason or he fails to attend less than three-fourths of the sittings in a year.
(8) The District Magistrate shall conduct a quarterly review of the functioning of the Committee.
(9) The Committee shall function as a Bench and shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class (10) The District Magistrate shall be the grievances redressal authority for the Child Welfare Committee and anyone connected with the child, may file a petition before the District Magistrate, who shall consider and pass appropriate orders.
28. Procedure in relation to Committee. - (1) The Committee shall meet at least twenty days in a month and shall observe such rules and procedures with regard to the transaction of business at its meetings, as may be prescribed.
(2) A visit to an existing child care institution by the Committee, to check its functioning and well being of children shall be considered as a sitting of the Committee.
(3) A child in need of care and protection may be produced before an individual member of the Committee for being placed in a Children's Home or fit person when the Committee is not in session.
(4) In the event of any difference of opinion among the members of the Committee at the time of taking any decision, the opinion of the majority shall prevail but where there is no such majority, the opinion of the Chairperson shall prevail.
(5) Subject to the provisions of sub-section (1), the Committee may act, notwithstanding the absence of any member of the Committee, and no order made by the Committee shall be invalid by reason only of the absence of any member during any stage of the proceeding:
Provided that there shall be at least three members present at the time of final disposal of the case.
29. Powers of Committee. - (1) The Committee shall have the authority to dispose of cases for the care, protection, treatment, development and rehabilitation of children in need of care and protection, as well as to provide for their basic needs and protection.
(2) Where a Committee has been constituted for any area, such Committee shall, notwithstanding anything contained in any other law for the time being in force, but save as otherwise expressly provided in this Act, have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection.
30. Functions and responsibilities of Committee. - The functions and responsibilities of the Committee shall include--
(i) taking cognizance of and receiving the children produced before it;
(ii) conducting inquiry on all issues relating to and affecting the safety and well-being of the children under this Act;
(iii) directing the Child Welfare Officers or probation officers or District Child Protection Unit or non-governmental organisations to conduct social investigation and submit a report before the Committee;
(iv) conducting inquiry for declaring fit persons for care of children in need of care and protection;
(v) directing placement of a child in foster care;
(vi) ensuring care, protection, appropriate rehabilitation or restoration of children in need of care and protection, based on the child's individual care plan and passing necessary directions to parents or guardians or fit persons or children's homes or fit facility in this regard;
(vii) selecting registered institution for placement of each child requiring institutional support, based on the child's age, gender, disability and needs and keeping in mind the available capacity of the institution;
(viii) conducting at least two inspection visits per month of residential facilities for children in need of care and protection and recommending action for improvement in quality of services to the District Child Protection Unit and the State Government;
(ix) certifying the execution of the surrender deed by the parents and ensuring that they are given time to reconsider their decision as well as making all efforts to keep the family together;
(x) ensuring that all efforts are made for restoration of abandoned or lost children to their families following due process, as may be prescribed;
(xi) declaration of orphan, abandoned and surrendered child as legally free for adoption after due inquiry;
(xii) taking suo motu cognizance of cases and reaching out to children in need of care and protection, who are not produced before the Committee, provided that such decision is taken by at least three members;
(xiii) taking action for rehabilitation of sexually abused children who are reported as children in need of care and protection to the Committee by Special Juvenile Police Unit or local police, as the case may be, under the Protection of Children from Sexual Offences Act, 2012;
(xiv) dealing with cases referred by the Board under sub-section (2) of section 17;
(xv) co-ordinate with the police, labour department and other agencies involved in the care and protection of children with support of the District Child Protection Unit or the State Government;
(xvi) in case of a complaint of abuse of a child in any child care institution, the Committee shall conduct an inquiry and give directions to the police or the District Child Protection Unit or labour departmentv or childline services, as the case may be;
(xvii) accessing appropriate legal services for children;
(xviii) such other functions and responsibilities, as may be prescribed."
33. In exercise of the powers conferred by the provision to Sub-section (1) of Section 110 of the Juvenile Justice Act, 2015, the Central Government also framed Rules by the name and the nomenclature of the Juvenile Justice (Care and Protection of Children) Models Rules 2016, which were gazzetted on 21.9.2016 in order to achieve the objects as enshrined in the Juvenile Justice Act, 2015.
34. The moot question, which falls for consideration before this Court in the present revision purported to be under Section 102 of the JJ Act, 2015 is with regard to the fact as to whether the orders passed by both the courts below are within the four-corners of Section 12 of the JJ Act, 2015, while rejecting the bail/ release application of the revisionist.
35. A proviso has also appended to the sub-section (1) of Section 12 of the Juvenile Justice Act, 2015 that a juvenile shall not be released, if there appears to be reasonable ground for believing that the release is likely to bring that child in association with any known criminal or expose the said person to mental, physical or psychological danger or the release would defeat the ends of justice, and thus, the Board shall record (reasons) "for denying the bail", and "circumstances that led to such a decision".
36. A perusal of Section 12(1) of the Juvenile Justice Act, 2015 postulates rule of bail for every child in conflict with law, whether the offence is to be bailable or non-bailable, notwithstanding anything contained in the Code of Criminal Procedure and carves out three distinct exceptions, under which the bail is to be refused to the juvenile, i.e, (a) where there are reasonable grounds for believing that the release is likely to bring the child into association with any known criminal; (b) the release is likely to expose the child to mental, physical or psychological danger; and (c) the release of child would defeat the ends of justice.
37. The words ''reasons' and ''circumstances' have been deliberately employed in the proviso to Section 12 of the JJ Act, 2015, so as to eliminate the chances of passing of any order in routine manner without application of mind.
38. The Hon'ble Apex Court in the case of Om Prakash vs. State of Rajasthan reported in 2012(5) SCC201 in paragraph-3 has held as under:-
"Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a special court for holding trial of children/juvenile by the juvenile court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a juvenile court or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held?"
39. However, the Hon'ble Apex Court in the case of Om Prakash (supra) has further gone to the extent that the courts must be cautious while passing orders with relation to a juvenile and also takes into account of the factors and the circumstances so prevalent therein.
40. Coming to the facts of the present case, it has come to the record that on the unlucky day, i.e, 28.12.2019, the juvenile along with the minor Neeraj Kannaujiya being the daughter of Ram Laut Kannaujiya was found wandering in the suspicious condition and when they were intercepted, then the victim Neeraj Kannaujiya as well as juvenile apprised the police personnel that they were not willing to go to their respective houses, as they wanted to live together. An FIR was also lodged by the complainant on 16.1.2020, which culminated into registration of a Case Crime no.0009 of 2020, wherein it was alleged that UPT report of victim was found to be positive, meaning thereby that she was pregnant and when the Statement was recorded under Section 161 CrPC on 17.1.2020, then it revealed that she is in love with revisionist for past three months and she according to her sweet will is willing to marry the revisionist.
41. Learned counsel for the revisionist has sought to argue that the orders passed by both the courts below are without any application of mind, as the orders rejecting the bail / release application of the revisionist has been passed without any basis or material available on record.
42. In order to buttress the said submission, learned counsel for the revisionist has drawn the attention of this Court towards the report of District Probation Officer dated 6.8.2020, so as to contend that the said report itself is contradictory and further there is nothing adverse found against the juvenile revisionist, particularly in view of the fact that the observations so given in the report are too general in nature and not being specific and further contradictory also.
43. Countering the said submission, learned A.G.A, who appears for the State has argued that the orders under challenge do not suffer from any illegality, as they have been passed within the four-corners of Section 12 of the J.J. Act, 2015.
44. The relevant observations made in report dated 6.8.2020 of the District Probation Officer is as under: -
"सामाजिक जांच रिपोर्ट कानून का उल्लंघन करने वाले बच्चों के लिए क्रम संख्या...............
किशोर न्याय बोर्ड, गोरखपुर (पता) को प्रस्तुत। परिवीक्षा अधिकारी/ स्वैच्छिक / गैर-सरकारी संगठन शशीकान्त चौहान (व्यक्ति का नाम) प्राथमिकी संख्या 09/20 धारा के अंतर्गत 376 IPC व 5/6 पाक्सो एक्ट पुलिस स्टेशन खजनी तथाकथित अपराध की प्रकृतिः लघु गंभीर जघन्य 1. नाम विशाल कन्नौजिया 2. आयु/ तारीख/ जन्म का वर्ष 01.04.2003 3. लिंग पुरूष 4. जाति धोबी (कन्नौजिया) 5. धर्म हिन्दू 6. पिता का नाम राजेश 7. माता का नाम प्रियंका 8. संरक्षक का नाम राजेश (पिता) 9. स्थायी पता ग्रा० व पो० बसिया खोर, था०-खजनी, गोरखपुर
10. पते का लैंडमार्क दुर्गा माता मन्दिर से पश्चिम ओर खंडजा मार्ग के अंत में मकान।
11. पिछले आवास का पता उपरोक्त
12. पिता/ माता/ पारिवारिक सदस्य की सम्पर्क सूत्र 9935823290
13. क्या बाल विकलांग है : नहीं
14. ..........
15. ..........
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17...........
18. बालक तथा परिवार की धर्म के प्रति अभिवृत्ति सामान्य
19. वर्तमान जीवन- निर्वहन की परिस्थितियां आर्थिक स्थिति कमजोर है।
20. महत्व के अन्य कारण यदि कोई हो कोई नहीं
21. (1) बालक की आदतें (जैसा भी लागू हो करें) (क) (ख) (क) ध्रूमपान (छ) टी०वी०/ फिल्में देखना (ख) शराब का सेवन (ज) अंतरंग / बहिरंग खेल खेलना (ग) स्वापक का प्रयोग (निर्दिष्ट करें) (झ) पुस्तकें पढ़ना
22. घर में अनुशासन के प्रति बालक की राय तथा प्रतिक्रिया सकारात्मक
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27. बालक के प्रति कक्षा के साथियों की अभिवृत्ति (रवैया) मित्रवत
28. बालक के प्रति शिक्षकों तथा साथियों की अभिवृत्ति (रवैया) मित्रवत
29. स्कूल छोड़ने के कारण (हां/ नहीं करें जैसा भी लागू हो)
30.........
31. व्यासायिक प्रशिक्षण, यदि कोई हो कोई नहीं।
32. अधिकांश मित्र (I) शिक्षित (II).......
(III) उसी आयु वर्ग के
33. बालक मित्रों के प्रति अभिवृत्ति मित्रवत
34........
35. बालक के प्रति पड़ोसियों का प्रेक्षण किशोर सीधा साधा
36. पड़ोस के बारे में प्रेक्षण (बालक पर पड़ोस के प्रभाव का आंकलन करने के लिए) किशोर का पास पड़ोस का परिवेश सामान्य व अनुकूल है।
37........
38. क्या बालक किसी अपराध पीड़ित है। नहीं
39. क्या बालक का इस्तेमाल किसी गैंग द्वारा अथवा वयस्कों द्वारा अथवा वयस्कों के समूह द्वारा किया जा रहा है अथवा बालक को स्वापक के वितरण के लिए इस्तेमाल किया जा रहा है। नहीं
40. क्या बालक की प्रवत्ति घर से भागने की है यदि कोई हो नहीं
41. वे परिस्थितियां जिनमें बालक को गिरफ्तार किया गया था सामान्य
42........
43. तथाकथित अपराध का कारण :
(v) हम उम्र समूह का प्रभाव
44. क्या बालक को पहले भी किसी अपराध के लिए गिरफ्तार किया गया है, यदि हां तो बाल देखरेख संस्था में आवास सहित ब्यौरा दें। नहीं
45.......
46......
46.......
47.......
48. बालक की मानसिक स्थिति : सामान्य
49. अन्य कोई टिप्पणी कोई नहीं।
जांच का परिणाम
1. भावनात्मक कारण कोई विशेष भावनात्मक कारण नहीं
2. शारीरिक स्थिति सामान्य
3. बुद्धिमता सामान्य
4. सामाजिक तथा आर्थिक कारक किशोर की आर्थिक स्थिति कमजोर है।
5. समस्याओं के सुझाए गए कारण किशोर के अल्पवयस्क होने के कारण जल्दी भावनाओं में वह जाना।
6. अपराध के कारणों/ कारणों में अंशदायी कारकों का विश्लेषण किशोर पर हम उम्र समूह का अधिक प्रभाव है तथा माता पिता का नियंत्रण कम प्रभावी है।
7.......
8. परिवीक्षा अधिकारी/ बाल-कल्याण अधिकारी/ सामाजिक कार्यकर्ता द्वारा पुनर्वास के सबंध में सिफारिश -
इस प्रकार जाँच से यह स्पष्ट होता है कि किशोर पर माता पिता का नियन्त्रण प्रभावी नहीं है तथा किशोर पर हम उम्र समूह का प्रभाव अधिक है। पाँच के दौरान किशोर के परिजनों की कोई आपराधिक पृष्ठभूमि प्रकाश में नहीं आयी। पड़ोसियों के अनुसार किशोर का स्वभाव सीधा सादा है वह बहकाने में आकर व भावनाओं में बहकर उक्त अपराध में शामिल हुआ है, चूंकि तथाकथित पीड़िता के बारे में पहले भई उल्टी सीधी बातें सुनने में आयी है। यह प्रकरण F I R किये जाने के पूर्व बाल कल्याण समिति गोरखपुर के समक्ष लाया जा चुका है जिसकी वाद संख्या - 891/12/2019 है महोदय संज्ञान में लेना चाहें। किशोर को जमानत पर मुक्त किये जाने की दशा में उसके किसी आपराधिक संगठन में शामिल होने की संभावना से इंकार नहीं किया जा सकता। जमानत पर मुक्त होने की स्थिति में किशोर की नैतिक, भौतिक व मनोवैज्ञानिक हानि से भी इंकार नही किया जा सकता। माता-पिता के प्रभावी नियन्त्रण के अभाव मे न्याय के उद्देश्यों के विफल होने की संभावना है।
अतः जाँच आख्या महोदय की सेवा में सादर प्रेषित है।"
45. Thus the District Probation Officer has given a negative report against the juvenile, which became a ground for non-release of juvenile, while observing that there is no control of the parents over the juvenile and he is in the influence of the persons, who belong to same age though there is no criminal antecedents and according to the neighbours, the juvenile is plain and simple. However, juvenile committed the said crime on account of the lack of control of his emotions and hence there is a likelihood that the juvenile may after release come in association with any known criminal and further in case, he is released, he is likely to be exposed to moral, physical or psychological danger and thus in the absence of any control of the parents over the juvenile, there are chances that the very object of releasing the juvenile on bail would be defeated.
46. This Hon'ble Court in the case of Sanjay Chaurasiya vs. State of U.P, 2006 CrLJ 2957 had the occasion to consider the general observations so sought to be made by the District Probation Officer, which became a ground for rejection of bail / release application. In paragraph-10, this Court has observed as under: -
"In case of the refusal of the bail, some reasonable grounds for believing abovementioned exceptions must be brought before the court concerned by the prosecution but in the present case, no such ground for believing any of the abovementioned exceptions has been brought by the prosecution before the Juvenile Justice Board and appellate court. The appellate court dismissed the appeal only on the presumption that due to commission of this offence, the father and other relatives of other kidnapped boy had developed enmity with the revisionist, that is why in case of his release, the physical and mental life of the revisionist will be in danger and his release will defeat the ends of justice but substantial to this presumption no material has been brought before the appellate court and the same has not been discussed and only on the basis of the presumption, Juvenile Justice Board has refused the bail of the revisionist which is in the present case is unjustified and against the spirit of the Act. It appears that the impugned order dated 27-6-2005 passed by the learned Sessions Judge, Meerut and order dated 28-5-2005 passed by the Juvenile Justice Board are illegal and are hereby set aside."
47. As already noticed earlier, deliberately the word "reasonable ground" "record the reasons" and "circumstances" has been employed in the proviso appended to sub-section (1) of Section 12 of the Juvenile Justice Act, 2015, in order to eliminate the chances that without assigning any appropriate reasons, the bail/ release application should not be rejected. Nonetheless, the report so submitted by the District Probation Officer cannot be accepted in routine manner on the ground that it has merely been filed, however, independent application of mind has to be made so as to find out that is there was any valid reason for rejecting the bail/ the release application, particularly in view of the fact that once the report of the District Probation Officer itself is general in nature. In nutshell, once jurisdiction is conferred upon the courts of law to pass an order either rejecting or allowing the bail/ release application, then it envisages a pre-condition that before passing any orders on the bail / release application, there has to be an independent application of mind that should be reduced in writing by way of an order.
48. The report of the District Probation Officer cannot be read in isolation rather to the contrary, the same is to be read in totality. The final conclusion so drawn by the District Probation Officer in its report dated 6.8.2010 cannot be held to be a gospel truth, as the reasons in coming to the conclusion have to be seen as it is not a case, wherein a criminal trial is being sought to be proceeded with, as the same is only for a limited purpose in order to see the over all conduct and the future of the delinquent, if in case, he is allowed to go set free on the strength of bail/ release.
49. I find that the report of the District Probation Officer is a general report being filed as an empty formality just in order to submit a report for the sake that it has to be submitted. The observations as well as the inputs, which became the basis for not recommending for grant of release/ bail, which too general and it cannot be a ground to negate the claim of the juvenile.
50. There is another aspect of the matter, which is to be dealt with with regard to the fact that under Section 12 of the Juvenile Justice Act, 2015, the gravity of offences are not to be seen, as in the matter of normal bails, either being anticipatory or regular bails, which are to be granted under the provisions of Criminal Procedure Code, the gravity of offences and charges have to be seen.
51. However, in the bail / discharge application under Juvenile Justice Act, 2015, there is complete departure of the same as the ingredients as mentioned under Section 12 of the Juvenile Justice Act, 2015 are to be adhered to in this regard.
52. The Hon'ble Rajesthan High Court in the case of Prakash vs. State of Rajesthan 2006 CrLJ 1373 in paragraphs-9 and 10 has observed as under: -
"9. At the time of consideration of bail under Section 12 of the Act, the merit or nature of offence has no relevancy. The language of Section 12 of the Act, using the word "shall" is mandatory in nature and providing non-obstante clause by using the expression "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time-being in force be released on bail" shows the intention of the Legislature to grant bail to the delinquent juvenile offender by releasing him on bail who is arrested or produced before a Court, however, with exception to release him on bail if there are reasonable grounds for believing that his release him on bail if there are reasonable grounds for believing that his 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. It is for the prosecution to bring on record such material while opposing the bail and to make out any of the grounds provided in this section which may persuade the Court not to-release the juvenile on bail.
10. The Act is beneficial and social-oriented legislation which needs to be given full effect by all concerned whenever the case of juvenile comes before them. In absence of any material or evidence of reasonable grounds to believe that the delinquent juvenile, if release on bail, is likely to come into association with any known criminal or expose him to moral, physical or psychological danger, it cannot be said that his release would defeat the ends of justice. On the contrary, keeping in view the legislative intent in enacting the Act, the juvenile offender deserves to be released on bail."
53. In the case of Shiv Kumar @ Sadhu Vs. State of U.P, 2010 (1) ACC 616, this Court in paragraphs-6 and 7 has observed as under: -
"6. Gravity of the offence has not been mentioned as a ground for rejection of bail in Section 12 of the Act.
The learned Appellate Court dismissed the appeal on the ground that the nature of offences are grave and if the revisionist Shiv Kumar is released on bail, he may tamper with the prosecution evidence by intimidating or terrorizing the witnesses.
7. From perusal of the lower court record, it transpires that there was nothing to show any material or any substance for believing that the release of the revisionist is likely to bring him into association with any known criminal or expose him to moral, physical or psychological change or that his release would defeat the ends of justice as provided by Section 12 of the Act. The learned courts below passed the impugned orders are not in consonance with the provision of Section 12 of the Act.
Considering the peculiar facts and circumstances of the case and in view of the above discussions, the revision is allowed and the impugned order dated 24.7.2009 passed by the Special Judge, SC/ST Act, Faizabad as well as impugned order dated 25.6.2009 passed by Juvenile Justice Board, Faizabad are set aside."
54. Further in the case of Rahul Patel Vs. State of U.P. reported in 2018 (1)JIC357, this Hon'ble Court in paragraph-8 has observed as under: -
"The Apex Court in a catena of judgements has constantly held that gravity of the offence is not a ground to deny bail to a juvenile accused. Unless the conduct of the accused is such to indicate that in all likelihood, after being released on bail, the juvenile-accused will indulge into more crimes. If there are no imminent chances of his repeating the crime, bail to a juvenile should not be ordinarily refused. "
55. This Court in the case of Mangesh Rajbhar Vs. State of U.P., 2018(6) ADJ in paragraphs- 23, 27, 28, 29, 30 and 31 has held as under: -
"23. No doubt, generally speaking bail is the rule in the case of a juvenile, even after the enforcement of the present Act, in cases of juveniles below the age of 16 years, and, burden is on the prosecution to show that on the parameters specified in the proviso to Section 12 (1) of the Act bail should be denied to a juvenile. In this connection reference be made to an order passed by this Court in the case of Raja (minor) v. State of U.P. in Criminal Appeal No. 1113 of 2017 decided on 4.5.2017. In this case, the Court has endorsed the view that burden is on the prosecution to bring the case within one of the exceptions under the proviso to Section 12(1) relying on an authority of the Hon'ble Supreme Court in Jitendra Singh vs. State of U.P.3 which makes a clear statement of the law on a reading of paragraph 5 of the judgment in Raja (minor) (supra).
"39. The provision dealing with bail (Section 12 of the Act) places the burden for denying bail on the prosecution. Ordinarily, a juvenile in conflict with law shall be released on bail, but he may not be so released if the reappear 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."
24. ...
25. ...
26. ...
27. It seems thus that the suggestion of the learned counsel for the revisionist that bail to a juvenile or more properly called a child in conflict with law can be denied under the last ground of the proviso to Section 12 ejusdem generis with the first two and not with reference to the gravity of the offence, does not appear to be tenable. The gravity of the offence is certainly relevant though not decisive. It is this relevance amongst other factors where gravity of the offence committed works and serves as a guide to grant or refuse bail in conjunction with other relevant factors to refuse bail on the last ground mentioned in the proviso to Section 12 (1) of the Act, that is to say, on ground that release would "defeat the ends of justice".
28. Under the Act, as it now stands there is further guidance much more than what was available under the Act, 2000 carried in the provisions of Section 15 and 18 above extracted and the definition of certain terms used in those sections. A reading of Section 18 of the Act shows that the case of a child below the age of 16 years, who has committed a heinous crime as defined in the Act is made a class apart from cases of petty offence or the serious offence committed by a child in conflict with the law/juvenile of any age, and, it is further provided that various orders that may be made by the Board as spelt out under clause (g) of Section 15 depending on nature of the offences, specifically the need for supervision or intervention based on circumstances as brought out in the social investigation report and past conduct of the child. Though orders under Section 18 are concerned with final orders to be made while dealing with the case of a juvenile, the same certainly can serve as a guide to the exercise of power to grant bail to a juvenile under Section 12(1) of the Act which is to be exercised by the Board in the first instance.
29. Read in the context of the fine classification of juveniles based on age vis-a-vis the nature of the offence committed by them and reference to a specifically needed supervision or intervention, the circumstances brought out in the social investigation report and past conduct of the child which the Board may take into consideration, while passing final orders under Section 18 of the Act it is, in the opinion of this court, a good guide for the Board while exercising powers to grant bail to go by the same principles though embodied in Section 18 of the Act, when dealing with a case under the last part of the proviso to Section 12 (1) that authorizes the Board to deny bail on ground that release of the juvenile would "defeat the ends of justice."
30. Thus, it is no ultimate rule that a juvenile below the age of 16 years has to be granted bail and can be denied the privilege only on the first two of the grounds mentioned in the proviso, that is to say, likelihood of the juvenile on release being likely to be brought in association with any known criminal or in consequence of being released exposure of the juvenile to moral, physical or psychological danger. It can be equally refused on the ground that releasing a juvenile, that includes a juvenile below 16 years would "defeat the ends of justice." In the opinion of this Court the words "defeat the ends of justice" employed in the proviso to Section 12 of the Act postulate as one of the relevant consideration, the nature and gravity of the offence though not the only consideration in applying the aforesaid part of the disentitling legislative edict. Other factors such as the specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child would also be relevant that are spoken of under Section 18 of the Act.
31. In this context Section 12 and 18 and also Section15 (Section 15 not relevant in the case of a child below 16 years) and other relevant provisions all of which find place in Chapter IV of the Act are part of an integrated scheme. The power to grant bail to a juvenile under Section 12(1) cannot be exercised divorced from the other provisions or as the learned counsel for the revisionist argues on the other specific disentitling provisions in the grounds mentioned in the proviso to Section 12(1) of the Act. The submission made based on the rule of ejusdem generis urged by the learned counsel for the revisionist is misplaced, in the opinion of this Court."
56. Further in the case of Sumit Kumar vs. State of U.P. in Criminal Revision No. 915 of 2017 decided on 13.4.2018, this Court after following the judgment of Mangesh Rajbhar in paragraph-16 has held as under: -
"16. Seen in the context of the above legal position, the case of the revisionist though falls in the category of a heinous offence and is certainly one which endangers the safety and security of children in society, but at the same time it is a case where the child in conflict with law stands charged with an offence where nothing has been proved so far. The prima facie complicity of the revisionist in the crime has not at all been looked into as a factor to assess whether releasing him on bail would defeat the ends of justice. From what appears on record it is a case of circumstantial evidence, where the only evidence is that of last seen. Before the courts below or before this Court no further circumstance to connect the revisionist to the crime has been brought on record, like recovery of anything related to the victim. The social investigation report on the other hand does not show that the past conduct of the child is in any manner such where he has been involved in any crime or that he requires supervision in a Child Protection Home away from his family. It is further to be considered that the child has already suffered incarceration of about one and a half years in whatever kind of custody, and, the maximum period for which he could be confined is three years. He has done half of the said period that he would have undergone even if found guilty."
57. In the case of Deepesh Bhati Vs. State of U.P. in Criminal Revision no. 177 of 2018, decided on 16.8.2018 in paragraphs-14, 15 and 16, this Court observed as under: -
"14. A reading of the Social Investigation Report, which is the most wholesome input, apart from the evidence relating to the crime of which the revisionist stands charged, does not at all suggest that there is any kind of likelihood of exposure of the child to any moral, physical or psychological danger, in the event of release. It also does not suggest that in the event of release there is likelihood of the revisionist coming into contact with any known criminal. There is no input from the police also to that effect. Now, so far as the last and the most important premise of the disentitling grounds on which bail may be refused to a juvenile is concerned, that is to say, the contingency that release of the juvenile would lead to "ends of justice being defeated", this Court finds that so far as the offence is concerned no doubt it is heinous. It involves rape of a 10 years old girl who is a neighbour. Not much can be said about the veracity of the allegation at this stage that still awaits a test at the trial before the Juvenile Justice Board. But not much has been said either about a reason for a false implication, at least in these proceedings.
15. This disentitling ground is to be assessed, not just by the heinous nature of the offence charged but also taking into account other factors, that include the specific need for supervision or intervention, circumstances as brought out in the Social Investigation Report and the past conduct of the child, all of which are relevant under Section 18 of the Act, as held in Mangesh Rajbhar (supra). In the present case, this Court finds that prima facie, and, not by way of a finding as already said, the charge is heinous, the manner in which it has been committed also shows maturity of mind and an understanding of the consequences of the action. At the same time there is absolutely nothing in the Social Investigation Report which may suggest that there is specific need for supervision and intervention, or anything in the circumstances, so to speak, that may necessitate institutional incarceration.
16. It is also of relevance that the child does not have anything in his past conduct to show that granting freedom to him would be a bad decision for the society. Rather, the circumstances of the revisionist's family show that for him restoration of his liberty and the company of his family might remove those early aberrations in his psyche which in institutional incarceration, in the solitude of an atmosphere where he finds himself a stranger, might become magnified. Then there is also this fact, so far as the decision to release the revisionist on bail is concerned, that the maximum period of detention authorized by law, even if the revisionist were held guilty, is three years of institutional incarceration, of which he has done 16 months, that is to say, a little less than half of the said period. Thus, considering the overall facts and circumstances, this Court finds that in the entirety of the circumstances of the case, which includes the offence charged and various other factors relevant under the law, the orders impugned denying bail to the revisionist deserve to be set aside and reversed."
58. Recently, this Court reiterated the law as laid down in the aforesaid decisions and has delivered the judgment dated 22.10.2020 in Criminal Revision No. 1328 of 2020, Sahil Vs. State of U.P., wherein this Court observed as under: -
"A perusal of the said provision show that bail for a juvenile, particularly, one who is under the age of 18 years, is a matter of course and it is only in the event that his case falls under one or the other disentitling categories mentioned in the proviso to sub-Section (1) of Section 12 of the Act that bail may be refused. The merits of the case against a juvenile acquire some relevance under the last clause of the proviso to sub-section (1) of Section 12 that speaks about the ends of justice being defeated. The other two disentitling categories are quite independent and have to be evaluated with reference to the circumstances of the juvenile. Those circumstances are to be gathered from the Social Investigation Report, the police report and in whatever other manner relevant facts enter the record.
What is of prime importance in this case is that the juvenile, who is a young boy, has no criminal history. There is nothing said against the juvenile, appearing from the Social Investigation Report that may show him to be a desperado or misfit in the society. The two courts below have held the juvenile disentitled to bail on account of his case falling under each of the three exceptions enumerated in the proviso to sub section (1) of Section 12, for which no reason has been indicated. That finding, in both the orders impugned, is based on an ipse dixit, in one case of the judge and in the other of the Board. Even if it be assumed that the offence was committed in the manner alleged, it would be rather strained logic to hold that release of the juvenile on bail would lead to the ends of justice being defeated. Both the courts below have also overlooked the statement of the victim recorded under Section 161 and 164 CrPC and further the courts below have also not considered the radiological age of the victim as per the medical report.
This Court in the case of Shiv Kumar alias Sadhu Vs. State of U.P. 2010 (68) ACC 616(LB) was pleased to observe that the gravity of the offence is not relevant consideration for refusing grant of bail to the juvenile.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and in view of the larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh vs. State of UP and another, (2018) 3 SCC 22 and the view taken by the Apex Court in the cases of Kamal Vs. State of Haryana (supra), Takht Singh Vs. State of Madhya Pradesh (supra) and Shiv Kumar alias Sadhu Vs. State of U.P. (supra)., this Court is of the view that the present criminal revision may be allowed and the revisionist may be released on bail.
In the result, this revision succeeds and is allowed. The impugned judgment and order dated 09.06.2020 passed by Additional Session Judge/ Special Judge, POCSO Act, Azamgarh dismissing the Criminal Appeal No.14 of 2020, filed under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ''the Act') and affirming an order of Juvenile Justice Board, Azamgarh dated 18.12.2019 refusing the bail plea to the revisionist in Case Crime No. 43 of 2019, under Sections 376-D, 504, 506, 120-B I.P.C. and Section 3/4 of P.O.C.S.O. Act and Section 3(2)(5) of SC/ST Act, Police Station Bilariyaganj, District Azamgarh, are hereby set aside and reversed. The bail application of the revisionist stands allowed."
59. In view of the proposition of law laid down consistently by the Hon'ble Apex Court, this Court as well as other Courts an inescapable conclusion is drawn that while deciding a bail or release application of a juvenile, the gravity of offence/ charge are not to be seen, however what is to be noticed is that in case the juvenile is released, then he may not get associated with the hardened criminal or the juvenile is likely to be exposed to moral, physical or psychological danger or the very purpose of releasing him gets defeated.
60. This Court while exercising the powers under Section 102 of Juvenile Justice Act, 2015 cannot embark any inquiry upon the gravity of the allegations or the charges/ offences and even cannot not make any comment with regard to what transpired on 28.12.2019. Court is only concerned with the fact that whether both the courts below while passing the order under challenge have taken into account, the ingredients for grant of bail or rejecting the bail/ release as envisaged under Section 12 of the Juvenile Justice Act, 2015. This Court finds that the observation so made by the District Probation Officer is too far to be a ground to reject the bail/ release application. The report submitted by the District Probation Officer is to be considered in the light of the Statutory Provision under Section 12 of the Juvenile justice Act, 2015, so as to block the chances of the revisionist juvenile to be released on bail on the ground that there are sufficient material available on record to show that the release is likely to bring the juvenile in association with any known criminal or expose the said person to moral, physical or psychological danger and release would defeat the ends of justice.
61. Even otherwise, the basic object of engrafting of the provisions under Juvenile Justice Act, 2015 are reformative and in case, a punitive theory is sought to be adopted, that too in absence of any negative material available on record, then the very object of Section 12 of J.J. Act, 2015 would become redundant.
62. Broadly speaking, the orders under challenge are the orders, which are totally silent with regard to the fact that as to how and under what circumstances, the release/ bail of the juvenile will defeat the purpose of Section 12 of the Juvenile Justice Act, 2015.
63. Needless to point out that the juvenile is in the observation home since 22.7.2020. Additionally, there is nothing on record to show that there is any criminal antecedents either of the juvenile or his family and rather admittedly, from the perusal of the report of the District Probation Officer itself shows that there is nothing adverse, but presumptions have been drawn that in case, he is released, then the same would defeat the ends of justice.
64. At this juncture, it would be appropriate to refer to the judgment of the Hon'ble Apex Court in the case of Data Ram Singh vs. State of U.P. and another, 2018(3) SCC 22, wherein the Hon'ble Apex Court in paragraph-1 has held as under: -
"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society."
65. Resultantly, this revision succeeds and is allowed. The impugned judgment and order dated 26.8.2020 passed by the Principal Judge, Juvenile Justice Board, Gorakhpur in Case Crime no. 09 of 2020 (State Vs. Vishal Kannaujiya), under Section 376 IPC read with Section 5/6 of the POCSO Act, as well as order dated 27.11.2020 passed by the Addl. Sessions Judge / Sepcial Judge (POCSO Act), Court No.1, Gorakhpur in Criminal Appeal No. 62 of 2020, Vishal Kannaujiya Vs. State of U.P. and others refusing the bail to the revisionist are hereby set aside and reversed. The bail application of the revisionist stands allowed.
66. Let the revisionist, Vishal Kannaujiya through his natural guardian/ father Rajesh Kannaujiya be released on bail in Case Crime No. 9 of 2020, under Sections 376 read with Section 5/6 of P.O.C.S.O. Act, Police Station Khajani, District Gorakhpur upon his father furnishing a personal bond with two solvent sureties of his relatives, each in the like amount to the satisfaction of the Juvenile Justice Board, Ballia subject to the following conditions:
(i) That the natural guardian/ father Rajesh Kannaujiya will furnish an undertaking that upon release on bail the juvenile will not be permitted to go into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the father will ensure that the juvenile will not repeat the offence.
(ii) That the father will further furnish an undertaking to the effect that the juvenile will pursue his study at the appropriate level, which he would be encouraged to do besides other constructive activities and not allowed to waste his time in unproductive and excessive recreational pursuits.
(iii) The revisionist and his father Rajesh Kannaujiya will report to the District Probation Officer on the first Monday of every calendar month commencing with the first Monday of January, 2021 and if during any calendar month the first Monday falls on a holiday, then on the following working day.
(iii) The District Probation Officer will keep strict vigil on the activities of the revisionist and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Gorakhpur on such periodical basis as the Juvenile Justice Board may determine.
Order Date :- 2.12.2021 N.S. Rathour