2025:HHC:21192 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. : 538 of 202 4 Reserved on : 30 th April, 202 5 Decided on : 04 th July , 202 5 CCL …Petitioner Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Servedaman Rathore, Advocate. For the respondent : Mr. Rohit Sharma, Deputy Advocate General. Virender Singh, Judge . Petitioner-’X’-Child in Conflict with Law (hereinafter referred to as ‘the CCL’) has filed the present petition, under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2000, (hereinafter referred to as ‘JJ Act’), against the order dated 4.12.2023, passed by the Court of learned Sessions Judge, Mandi, H.P. (hereinafter referred to as the Appellate Court), in Criminal 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 2025:HHC:21192 Appeal No.96 of 2023, titled as the CCL versus State of H.P. 2. By way of the order dated 4.12.2023, the learned Appellate Court has dismissed the appeal preferred by the CCL, against the dismissal of the bail on 6.11.2023, passed by the Court of learned Principal Magistrate, Juvenile Justice Board, Mandi, H.P. (hereinafter referred to as ‘the JJB’), in Cr.M.A. No.33 of 2023, titled as CCL versus State of H.P. 3. By way of the present revision petition, the following substantive relief has been sought:- “It is, therefore, respectfully prayed that this petition may kindly be allowed and the impugned order dated 04.12.2023, passed by the learned Sessions Judge, District Mandi, at Mandi, HP, in Criminal Appeal No.96 of 2023, titled as Raj Thakur versus State of HP, whereby the appeal filed by the CCL/petitioner was dismissed and the order of dismissal of bail dated 06.11.2023 passed by the learned Principal Officer Juvenile Board Mandi, District Mandi, H.P. in bail/release application titled Raj Thakur versus State of HP, has been confirmed, may kindly be quashed and set aside and consequently releasing the CCL/petitioner on bail in juvenile case for commission of offences under Section 376-d, 302 and 34 of IPC, on the basis of the submissions made hereinafter and justice be done.” 3 2025:HHC:21192 4. The present revision petition has been filed on the ground that the Police of Police Station, Joginder Nagar, District Mandi, lodged a case, under Sections 376- D, 302, 34 IPC, vide FIR No.159 of 2023, dated 9.10.2023, against the CCL and other accused. On 11.10.2023, the CCL was sent to Child Correctional Home by the JJB. Thereafter, the CCL had moved a release application before the JJB. However, the same was rejected on 6.11.2023. 5. Thereafter, the CCL had preferred the appeal before the learned Appellate Court, which was also dismissed on 04.12.2023. 6. The orders, passed by the JJB, as well as, the learned Appellate Court, have been challenged before this Court on the ground that the applicable law has not been appreciated, by both the Courts below, in the right perspective and both the Courts below have not considered the provisions of Section 3 of the JJ Act, in its right perspective. He has termed the FIR, registered against him, as false and fabricated, as, he has no concern with the crime, as alleged, against him. 4 2025:HHC:21192 7. The investigation is stated to be completed and the CCL is presently in the Child Correctional Home. Reiterating the principles, as enumerated, in Section 12 of the JJ Act, it has been pleaded that bail to juvenile should ordinarily not be denied. 8. The CCL had given certain undertakings, for which, he is ready to abide by, in case, he is ordered to be released on bail. 9. The parents of the CCL are stated to be permanent residents of the address, as mentioned in the application. 10. The CCL, on his own behalf and on behalf of his natural guardian, has also given the undertaking to abide by the conditions, to be imposed by this Court. 11. On the basis of the above facts, a prayer has been made to allow the revision petition. 12. A perusal of the record shows that the CCL, through his father and natural guardian Kamlesh Kumar, 5 2025:HHC:21192 had filed the application, under Section 12 of the JJ Act, for release of the CCL, in the above titled case. The said application was dismissed on 6.11.2023 by the JJB, mainly, on the ground of gravity of the offence, committed by the CCL. 13. Another ground, upon which, the relief has been declined to the CCL, is that in case, the CCL is ordered to be released from protective custody, it runs the risk of lack of proper care from his family and also runs chances of being exposed to criminal association. 14. The said order had been assailed by way of appeal, under Section 101(1) and (7) of the JJ Act, before the learned Appellate Court. However, the learned Appellate Court had also dismissed the appeal. 15. Thereafter, the CCL had moved the application before the JJB, under Section 12 of the JJ Act. The said provisions is reproduced 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, 6 2025:HHC:21192 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 fulfill 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.” 7 2025:HHC:21192 16. As stated above, the application has been rejected mainly on the ground that heinous offence has been committed and the guardian of the CCL has no effective control over the CCL and there is possibility of recurrence of the offence after his release. 17. The Legislature, in its wisdom, has used the word ‘shall’ in Section 12(1) of the JJ Act. The use of word ‘shall’ by the Legislature, in its wisdom, raises the presumption that a particular provision is mandatory. 18. As per provisions of Section 12 of the JJ Act, the JJB is under the legal obligation to release the CCL with or without surety. However, as per the later part of Section 12(1) of the JJ Act, certain circumstances have been provided, under which, there is prohibition for releasing the CCL on bail. Those grounds are : (a) that the release is likely to bring him into association with any known criminal; (b) that release is likely to expose him to moral, physical, or psychological danger and (c) that release of the juvenile is in conflict with law, would defeat the ends of justice. 8 2025:HHC:21192 19. Merely, reiterating the above three grounds do not fulfill the ingredients of the term ‘reasonable grounds’, as from the language of Section 12 of the JJ Act, it appears that intention of the Legislature is to grant bail to the CCL, irrespective of the nature or gravity of the offence, alleged to have been committed by him. 20. The exceptions, under which, the bail can be denied, have elaborately been discussed by the Punjab and Haryana High Court at Chandigarh in Manmohan Singh v. State of Punjab, reported in PLR (2004) 136 P & H 4. Relevant paragraphs 7 and 8 of the judgment are reproduced, 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… 9 2025:HHC:21192 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." 21. Even, considering the non obstante clause, the provisions of the JJ Act will override the provisions of Cr.PC, regarding bail and the JJB is bound to release the person on bail or put him under the supervision of a Probation Officer or under the care of any fit person. 22. The Hon’ble Apex Court in Criminal Appeal (arising out of Special Leave Petition (Crl.) No.9566/2024), titled as Conflict with Law V versus The State of Rajasthan and Anr., decided on 14.08.2024, has elaborately discussed the proviso to sub-section (1) of Section 12 of the JJ Act. Relevant paragraphs 6 to 10 of the aforesaid judgment are reproduced, as under: “6. From the phraseology used in sub-section 1 of Section 12, a juvenile in conflict with law 10 2025:HHC:21192 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 11th 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.” 23. While deciding such type of question, the provisions of Section 3 of the JJ Act assume significance. Those provisions are reproduced, as under:- 11 2025:HHC:21192 “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. 12 2025:HHC:21192 (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 institutionalization 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 13 2025:HHC:21192 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. 24. The cumulative effect of the above provisions, contained in Section 3 of the Act, is that the CCL shall be presumed to be innocent of any mala fide or criminal intent up to the age of 18 years and all decisions, regarding the CCL, shall be based on the primary consideration that they are in the best interest of the child and to help the child in developing full potential. 25. Keeping the CCL in the Correctional Home, may not only cast stigma, but also deprived him from continuing 14 2025:HHC:21192 with his studies, as well as, love and affection of his parents and as such, the JJB has fallen into error, while deciding the application, under Section 12 of the JJ Act. 26. Similarly, the learned Appellate Court has also failed to consider the provisions of the JJ Act, in the right perspective, resulted into an order, which doesn't meet the standards of correctness, legality, and propriety. 27. Consequently, the present revision petition is allowed and the order, passed by the learned JJB, as upheld by the learned Appellate Court, is set aside and the CCL is ordered to be enlarged on bail, subject to the following conditions:- (i) Natural guardian/father will furnish an undertaking that upon release of the CCL on bail, he will not permit him to go into contact or association with any known criminal or allowed to be exposed to any moral, physical, or psychological danger ii) Natural guardian/father will ensure that the juvenile will not repeat the offence. (iii) Natural guardian/father will further furnish an undertaking to the effect that the CCL will pursue his studies at the appropriate level. (iv) CCL as well as the natural guardian/ father will report to the Probation Officer on 3rd day of every calendar month 15 2025:HHC:21192 commencing from August, 2025, and if during any calendar month the 3rd day falls on a holiday, then on the following working day. (v) 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.” 28. With these observations, the petition stands disposed of, so also the pending application(s), if any. 29. Any of the observations made herein above shall not be taken as an expression of opinion on the merits of the case as these observations are confined only to the disposal of the present bail application. 30. Record be returned to the quarter concerned under proper receipt. ( Virender Singh ) Judge July 04, 2025(ps) Digitally signed by KARAN SINGH KANWAR Date: 2025.07.04 15:15:21 IST