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SANDEEP SHARMA, J. (ORAL) –

Instant criminal revision petition, filed under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short the “Act”), lays challenge to order dated 1.5.2024, passed by the Children’s Court under the Juvenile Justice (Care and Protection of Children) Act 2015-cum-Additional Sessions Judge Fast Track Special Court (Rape/POCSO), Sirmaur at Nahan, Himachal Pradesh, in Criminal Appeal No. 41-Cr.Appeal/10 of 2024, affirming judgment/order dated 25/26.4.2024, passed by the learned Principal Magistrate Juvenile Justice Board, Sirmaur District at Nahan, in FIR No. 14/2024 dated 16.4.2024 under Section 376 of IPC and Section 4 of the POCSO Act, registered at WPS Nahan, District Sirmaur, Himachal Pradesh, whereby an application filed by the Child in conflict with law (hereinafter referred to as “CCL”), who is a juvenile, for enlargement on bail, came to be rejected.

2. Pursuant to orders dated 12.7.2024 and 1.8.2024, respondent-State has filed Status report and ASI Chander Mohan, WPS Nahan, District Sirmaur, Himachal Pradesh, has come present with records.

3. Close scrutiny of record/status report reveals that FIR detailed herein above, came to be lodged at the behest of father of the victim child (aged 7 years), alleging therein that on 15.4.2024 at around 1:30pm, his minor daughter was subjected to penetrative sexual assault by CCL. He alleged that while his minor daughter and son were playing with CCL, who resides in the neighborhood, he saw CCL subjecting his minor daughter to penetrative Sexual assault. On the basis of aforesaid complaint, FIR as detailed herein above, came to be lodged against CCL on 16.4.2024 and since then he has been kept in observation home. Though immediately after registration of FIR, CCL filed petition under Section 12 of the Act, praying therein to enlarge him on bail, but Juvenile Justice Board, Nahan, vide order dated 26.4.2024, rejected his application and ordered to keep him in observation home.

4. Being aggrieved and dissatisfied with the aforesaid order passed by the Principle Magistrate, Juvenile Justice Board, CCL preferred an appeal under Section 101 of the Act before Juvenile Justice (Care and Protection of Children) Act 2015-cum-Additional Sessions Judge Fast Track Special Court (Rape/POCSO), Sirmaur at Nahan, Himachal Pradesh however same also came to be dismissed vide impugned order dated 1.5.2024. In the aforesaid background, CCL has approached this Court in the instant proceedings, praying therein to enlarge him on bail after setting aside impugned orders passed by the courts below.

5. Precisely, the grouse of CCL as has been highlighted in the petition and further canvassed by Mr. Vinod Chauhan, learned counsel representing him is that both the courts below while considering prayer made by the petitioner for grant of bail failed to take note of Section 12 of the Act, which makes it mandatory for the court to enlarge the juvenile on bail during the pendency of the trial. Mr. Chauhan, states that bare reading of the aforesaid provision of law clearly suggests that under no circumstances, juvenile can be kept behind bars for indefinite period during trial. He states that though proviso to the aforesaid provision of law suggests that court in exceptional circumstances can order to send a child in conflict with law to observation home, but before doing so, plausible reasoning is required to be assigned in order for doing so. While  referring to the impugned orders passed by the courts below, Mr. Chauhan, submits that both the courts below merely having taken note of the fact that CCL has committed heinous crime punishable under Section 376 of IPC and Section 4 of the POCSO Act, proceeded to presume that in the event of his being enlarged on bail, he may not only cause harm to the victim-prosecutrix, but may again indulge in such like activities, but such finding has no basis.

6. To the contrary, Mr. B.C. Verma, learned Additional Advocate General, while supporting the impugned orders passed by the courts below vehemently argued that proviso to Section 12 itself empowers the court considering prayer made by a child in conflict with law for grant of bail to send him to observation home, especially when it is satisfied that in the event of his being enlarged on bail, he may not only be exposed to moral, physical or psychological danger, but may also indulge in these activities again. Learned Additional Advocate General further states that otherwise also, having regard to the gravity of offence alleged to have been committed by the CCL coupled with the fact that he resides in the neighborhood of victim prosecutrix, no illegality can be said to have been committed by both the courts below, while passing impugned orders. He further contends that since after the alleged incident there is terror amongst the residents of the area, especially the children residing in the vicinity, courts below rightly ordered to send CCL to observation home, where he is otherwise being taken care of.

7. I have heard the learned counsel for the parties and gone through the record of the case.

8. Careful perusal of record reveals that CCL is accused of his having committed heinous crime punishable under Section 376 of IPC and Section 4 of the POCSO Act. On the date of the alleged incident, CCL subjected the victim-prosecutrix (aged 7 years) to penetrative sexual assault, but bare perusal of Section 12 of the Act clearly reveals that prayer, if any, made for grant of bail by juvenile cannot be denied merely on the basis of accusation, rather same can only be denied in case court comes to conclusion that release of juvenile on bail may bring that person into association with any known criminal or to moral, physical or psychological danger or his release would defeat the ends of justice. At this stage it would be apt to take note of Section 12 of the Act, which reads as under:

“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 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit 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 persons 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.”

9. Word “shall” has been specifically used in the afore provision of law, which suggests that normally, prayer, if any, made for grant of bail deserves to be allowed. No doubt, proviso to aforesaid provision of law, empowers the court considering prayer, if any, made for grant of bail to send the CCL to observation home, but for that purpose, there should be reasonable grounds for believing that release of CCL, if any on bail, 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 persons release would defeat the ends of justice. Most importantly, as has been observed herein above, afore provision clearly provides that court or Board while considering prayer for grant of bail, if not inclined to grant the bail, shall record the reasons for denying the bail and circumstances that led to such a decision.

10. Having perused order impugned in the instant proceedings, this Court is persuaded to agree with Mr. Vinod Chauhan, learned counsel, that no cogent and convincing reasoning has been adduced on record by both the courts below while rejecting prayer made by the CCL for grant of bail. Both the courts below merely having taken note of the fact that CCL is accused of heinous crime punishable under Section 376 of IPC and Section 4 of the POCSO Act, proceeded to presume that enlargement of CCL on bail may result in creating terror among the victim-prosecutrix and other children of the vicinity. It clearly emerges from the orders passed by both the courts below that no material worth credence was ever adduced on record by the prosecution to suggest that in the event of CCL being enlarged on bail, he may not only come in contact of hardened criminals but may again indulge in such activities.

11. Since proviso to Section 12 makes it mandatory for the court to record a finding, especially when court proposes to send the CCL to observation Home, court while considering prayer, if any, under Section 12 cannot merely on the basis of gravity of offence alleged to have been committed by the CCL, can presume that in the event of his/her being enlarged on bail, he may indulge in these activities again, rather sufficient reason is required to be recorded in the order which compels/persuades the court to send the CCL to observation home.

12. At this stage, it would be apt to take note of the judgment dated 14.8.2024, passed by the Hon’ble Apex Court in case titled Juvenile in Conflict with Law V v. The State of Rajasthan and Anr., passed in Criminal Appeal (arising out of Special Leave Petition (Crl.) No. 9566 /2024) = (2024) Law Today Live Doc. Id. 19433, wherein, while interpreting Section 12 of the Juvenile Act, especially proviso to the aforesaid provision of law, Hon’ble Apex Court held that specific finding is required to be recorded in context of proviso to subsection 1 of Section 12 of the Act by the court concerned, especially when it proposes to send the accused to the observation home. Relevant paras of the aforesaid judgment are reproduced herein below:

“6. From the phraseology used in sub-section 1 of Section 12, a juvenile in conflict with law has to be necessarily released on bail with or without surety or placed under supervision of a probation officer or under the care of any fit person unless proviso is applicable.

7. We have perused all the orders passed earlier by the JJ Board, Special Court and High Court and specially the order dated 11^th December, 2023 passed by the JJ Board. There is no finding recorded that the proviso to sub-Section 1 of Section 12 is applicable to the facts of the case. Without recording the said finding, bail could not have been denied to juvenile in conflict with law.

8. Our attention is invited to Psychological Assessment Report of the Juvenile. The report records that the juvenile does not belong to high risk category and against the column “worry list of child” it is mentioned that there was “no worry”. The report is signed by a qualified Clinical Psychologist.

9. Though none of the courts at no stage have recorded a finding that in the facts of the case, the proviso to sub-Section 1 of Section 12 was applicable, the juvenile in conflict with law has been denied bail for last one year.

10. Hence, the impugned orders are set aside. The appeal is accordingly allowed.”

13. Reliance is also placed upon judgment passed by the High Court of Judicature at Allahabad in X (minor) v. State of U.P. and Anr., wherein word “Known Criminal” used in proviso came to be specifically dealt with and elaborated. Relevant paras of the afore judgment read as under:

14. The term 'known criminal' has not been defined in "the Juvenile Justice Act" or Rules framed thereunder. It is a well-settled rule of interpretation that in the absence of any statutory definition of any term used in any particular statute the same must be assigned meaning as in commonly understood in the context of such statute as held by Supreme Court in Appasaheb v. State of Maharashtra, (2007) 9 SCC 721 in para 11 as under: (SCC p. 726 para 11)

"11......It is well settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understand to have a particular meaning in it, then the words are to be construed as having that particular meaning. [See: Union of India v. Garware Nylons Ltd., (1996) 10 SCC 413: AIR 1996 SC 3509 and Chemical and Fibers of India v. Union of India, (1997) 2 SCC 664: AIR 1997 SC 558]...

15. In Nand Kishore (in JC) v. State (2006) 4 RCR (Cri.) 754, Delhi High Court, while considering the first condition of proviso of Section 12 of Juvenile Justice Act, observed that "as regards the first exception, before it can be invoked to deny bail to a juvenile there must be a reasonable ground for believing that his release is likely to bring him into association with any known criminal. The expression known criminal is not without significance when the liberty of a juvenile is sought to be curtailed by employing the exception, the exception must be construed strictly. Therefore, before this exception is invoked, the prosecution must identify the 'known criminal', and then the court must have reasonable grounds to believe that the juvenile if released would associate with this 'known criminal'. It cannot be generally observed that the release of the juvenile would bring him into association with criminals without identifying the criminals and without returning a prima facie finding with regard to the nexus between the juvenile and such criminal.

16. Similar view has been taken in Manmohan Singh v. State of Punjab, PLR (2004) 136 P & H 497 wherein, it was observed as under:

"7....The reasonable grounds for believing that his release is likely to bring 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, should be based upon some material/evidence available on the record. It is not a matter of subjective satisfaction but while declining bail to the juvenile on the said ground, there must be objective assessment of the reasonable grounds that the release of the juvenile is likely to bring him in association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice...

8. In Sanjay Kumar's case (supra) it has been held by the Allahabad High Court that every juvenile whatever offence he is charged with, shall be released on bail but he may, however, be refused bail if there appears reasonable ground for believing that the release is likely to bring him into association with the any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice and that the existence of such ground should not be mere guess work of court but it should be substantiated by some evidence on record."

14. Careful perusal of aforesaid law laid down by the Hon’ble Apex Court as well as Allahabad High Court clearly suggests that the reasonable grounds for believing that release of CCL 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, should be based upon some material evidence available on the record. It is not a matter of subjective satisfaction but while denying bail to the juvenile on the said ground, there must be objective assessment of the reasonable grounds that the release of the juvenile is likely to bring him in association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. “Reason to believe” excludes mere suspicion, meaning thereby, mere registration of case under Section 376 of IPC and Section 4 of the POCSO Act may not be sufficient for the court to arrive at a conclusion that in the event of his being enlarged on bail, CCL may come in contact of the known criminal or indulge in these activities again. Section 13 (1) (ii) of the Act, specifically provides for report of probation officer, who is otherwise under obligation to submit report to the I.O. within two weeks, with regard to social behaviour of the child under the aforesaid act. Social investigation report, which is defined in Rule 2 XVII of the Act, clearly provides detailed information pertaining to the circumstances of the child, the situation of the child on economic, social, psycho-social and other relevant factors, and the recommendation thereon. Afore report becomes important for the inquiry to be done by the Board while passing such orders in relation to such a child as it deems fit under Sections 17 and 18 of this Act. Similarly aforesaid report also becomes handy while considering prayer made on behalf of the CCL for bail under Section 12.

15. At this juncture, this court deems it necessary to take note of Section 3 of the Act, which provides that the Central Government, the State Government, the Board, and other agencies, as the case may be, while implementing the provisions of the Act, shall be guided by the fundamental principles of care and protection of children. Some of the principles are as under:

“(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 being shall be treated with equal dignity and rights.

(iii) 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.

(iv) 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.

(v) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the process pertaining to a child.

(vi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and through out the judicial process.”

16. Aforesaid provision of law clearly reveals that child shall be presumed to be innocent of any mala-fide or criminal intent upto the age of 18 years and all decisions with regard to him shall be based upon the primary consideration that they are in the best interest of the child and to help the child develop full potential. Most importantly, principle of non-stigmatizing semantics is required to be followed. Since sending child to observation home may cast stigma coupled with the fact that during his stay in observation home, he may be further deprived of continuing his studies and love and affection, which he would have otherwise received from his parents, courts considering prayer for bail under Section 12 are not expected to adopt hyper technical approach, rather human approach deserves to be adopted in such like cases.

17. Having scanned the material adduced on record as well as law taken into consideration, this Court has no hesitation to conclude that both the courts below have fallen in grave error while interpreting the provisions contained under Section 12 of the Act, especially proviso to the aforesaid provision.

18. Consequently, in view of the above, present petition is allowed and impugned orders dated 1.5.2024 and 25/26.4.2024 are quashed and set-aside and CCL is ordered to be enlarged on bail, subject to the following conditions:

(i) Natural guardian/father will furnish an undertaking that upon release on bail the CCL 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) Natural guardian/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 be allowed to waste his time in unproductive and excessive recreational pursuits.

(iii) Juvenile and natural guardian/father will report to the Probation Officer on the first Monday of every calendar month commencing with the first Monday of September, 2024, and if during any calendar month the first Monday falls on a holiday, then on the following working day.

(iv) The Probation Officer will keep a strict vigil on the activities of the juvenile and regularly draw up his social investigation report that would be submitted to the concerned Juvenile Justice Board, on such a periodical basis as the Juvenile Justice Board may determine.

Petition allowed.

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