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2026 DAILYLAW 16794 (HP)

XYZ v. State of H. P.

2026-01-08

Virender Singh

body2026
Judgment : Virender Singh, J. Petitioner XYZ (Child in Conflict with Law) (hereinafter referred to as ‘the CCL’) has approached this Court under Section 102 of the Juvenile Justice (Care and Protection of Children) Act 2015, (hereinafter  referred  to  as  ‘the  Act’),  against  the judgment dated 22.3.2024, passed by the learned Additional Special Judge, (Children Court), Chamba, Division Chamba, H.P. (hereinafter referred to as ‘the Appellate Court’), in Cr. Appeal No. 3 of 2024, titled as ‘Ms. Ruksana & others versus State of H.P.’, whereby the appeal filed by the CCL against the order passed by the learned Juvenile Justice Board, Chamba, District Chamba, H.P., (hereinafter referred to as ‘the JJB’), in bail application No. 175/2023, titled as, ‘Applicant No. 1(Name withheld) & others versus State of H.P.’, dated 16.12.2023, has been upheld. 2. As per the pleadings, CCL alongwith two other minors, were arrayed as accused in a case under Sections 302, 201, 120B and 34 IPC, vide FIR No. 38 of 2023, dated 9.6.2023, registered with Police Station, Kihar, District Chamba, H.P. 3. The said FIR has been registered at the instance of one Raju, S/o Balak. After registration of the FIR, Police has investigated the matter. After conclusion of investigation, Police has filed the charge-sheet, against the accused, as well as, the children in Conflict with Law, including the CCL, in the present case. The CCL, alongwith two juveniles, was kept at One Stop Center Gholti, Chamba, on the ground that there was community rage, apprehension of communal riots and threat to life of juveniles. Presently, the CCL, alongwith other juveniles, is stated to be at Observation Home, Una. 4. Thereafter, the petitioner moved an application for bail on 26.6.2023, before the learned JJB, which was dismissed on 1.7.2023. Thereafter, the said order was assailed before the learned Appellate Court in Cr. Appeal No. 34 of 2023, which was decided on 6.11.2023. Vide order dated 6.11.2023, the matter was remanded back to the learned JJB, Chamba. However, the said application was dismissed on 16.12.2023. Thereafter, the appeal has been preferred, which has also been dismissed, vide order dated 22.3.2024. 5. Appeal No. 34 of 2023, which was decided on 6.11.2023. Vide order dated 6.11.2023, the matter was remanded back to the learned JJB, Chamba. However, the said application was dismissed on 16.12.2023. Thereafter, the appeal has been preferred, which has also been dismissed, vide order dated 22.3.2024. 5. The order, by virtue of which, the bail application was dismissed by the JJB and the order passed by the learned Appellate Court, have been assailed, on the ground that the ground, upon which, the bail application has been rejected, is not sustainable in the eyes of law, as the said ground does not fall within the purview of Section 12 of the Juvenile Justice Act. 6. According to the petitioner, her father is ready and willing to submit an undertaking before this Court. 7. On the basis of above facts, a prayer has been made by Ms. Shikha Chauhan, Legal Aid Counsel that the present petition may kindly be allowed. 8. As per the record, the FIR has been registered at the instance of complainant Raju, who has made statement under Section 154 Cr. P.C., before the  Police, disclosing therein, that he is an agriculturist by profession and his family is consisting of his wife and three  daughters  and  one  son  (Manohar). All  the daughters are married, whereas son Manohar was bachelor and was doing the business of transporting goods on mules. The complainant is having agricultural land in Sanghani Mohal. His son Manohar was residing in Adhwari (cowshed). On 5.6.2023, he went to Adhwari from his home. On 6.6.2023, he had a talk with him at about 7:15 a.m., in the morning, on mobile. Thereafter, mobile phone of Manohar got switched off, upon which, the complainant thought that battery of his mobile might have drained or he might not have returned from the Adhwari. 9. On the next date, Sobhia Ram, husband of daughter of sister-in-law of the complainant asked her as to whether Manohar returned home or not, upon which, she told her that although, his mules had returned to the Adhwari, but there is no information about Manohar, upon which, the complainant lodged the missing report on 8.6.2023. 9. On the next date, Sobhia Ram, husband of daughter of sister-in-law of the complainant asked her as to whether Manohar returned home or not, upon which, she told her that although, his mules had returned to the Adhwari, but there is no information about Manohar, upon which, the complainant lodged the missing report on 8.6.2023. Search was made, but he was not found anywhere, but, later on, the complainant came to know about the fact that Manohar had been talking with one juvenile, D/o Muzaffer Hussain, whose Adhwari is also situated adjacent to Adhwari of the complainant. 10. On 9.6.2023, when, the complainant, alongwith other police officials and local people, after searching for Manohar, reached at Haladi Nalla, then they noticed a shoe lying there. The complainant recognized the said shoe to be of Manohar. Thereafter, they found dead body of Manohar, covered under the heap of stones. The complainant suspected that his son has been killed by family members of the juvenile, D/o Muzzaffer Hussain. As such, he has prayed that action be taken against them. 11. On the basis of above facts, Police machinery swung into motion. Codal formalities were completed. After completion of investigation, involvement of other accused, alongwith the petitioner, was found. 12. Thereafter, the petitioner, including other two minors, moved the bail application, which was dismissed by the Juvenile Justice Board, mainly on the ground that there is physical, as well as, psychological danger to the life of the petitioners, in case, they are ordered to be released on bail. However, only petitioner is before this Court. 13. Apart from this, the bail application has also been rejected, highlighting the heinous nature of the offence. When, the said order was assailed before the learned Appellate Court, similar view has been taken by the said Court and the bail application has been dismissed. 14. Now, the CCL is before this Court, by way of present Revision Petition. The present Revision Petition has been filed mainly on the ground that bail to the CCL has been denied only on the ground that there is threat to the life of the CCL, which is not only a baseless reason to curtail the independence of the CCL, but also does not serve the purpose of law to deny the bail to the CCL. 15. 15. It has further been averred that the CCL was apprehended  by  Police  on  10.6.2023  and  was  not produced before the learned JJB, within 24 hours of her arrest, which is a mandatory requirement as per Section 10 of the Juvenile Justice (Care & Protection of Children) Act, 2015. 16. As per the petitioner, relief has been declined only on the basis of vague apprehensions, about the seriousness of the crime in question. The CCL is stated to be in Observation Home, since 13.6.2023 and the same is stated to be against the legislative intent. 17. On the basis of above facts, Ms. Shikha Chauhan, learned Legal Aid Counsel has given certain undertakings, on behalf of the petitioner, for which, she is ready to abide by, in case the present petition is allowed. Hence, a prayer has been made to allow the petition. 18. Perusal of the order passed by the learned Appellate Court shows that relief of bail has been declined on the ground that this case falls within the exceptional circumstances, as defined in proviso to Section 12(1) of the Act. 19. The learned Appellate Court has declined the relief of bail to the CCL on the ground that she has committed heinous offence and also relied upon the proviso to Section 12 of the Act, by holding that the juvnile shall not be released, if there appears reasonable grounds for believing that the release is likely to bring juvenile into association with any known criminal or expose such juvenile to moral, physical or psychological danger or that release of the juvenile would defeat the ends of justice. This has been held on the ground of seriousness of the allegations against her. 20. In this case, the CCL has approached the learned JJB under the provisions of Section 12 of the Act. This has been held on the ground of seriousness of the allegations against her. 20. In this case, the CCL has approached the learned JJB under the provisions of Section 12 of the Act. Provisions of Section 12 of the Act are reproduced as under: “Section 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 available 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 1[or a place of safety, as the case may be] 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. 21. (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. 21. 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. 22. 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. 23. As per provisions of Section 12 of the Act, the JJB is under the legal obligation to release the CCL with or without surety. However, as per the latter part of Section 12(1) of the 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. 24. 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 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. 25. 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. 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… 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." 26. Even, considering the non obstante clause, the provisions of the 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. 27. 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 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. 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 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.” 28. While deciding such type of question, the provisions of Section 3 of the Act assume significance. Those provisions are reproduced, as under:- “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. (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 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. (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 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. 29. 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. 30. Although, as per Section 18 of the Act, the child above the age of 16 years, who has committed heinous crime, has been made a class apart from the cases of petty offences, but, merely on that ground, the relief to the CCL, cannot be declined. There is nothing on the file to demonstrate, at this stage, that case of the CCL falls within the exceptional circumstances, as defined in proviso to Section 12(1) of the Act. 31. There is nothing on the file to demonstrate, at this stage, that case of the CCL falls within the exceptional circumstances, as defined in proviso to Section 12(1) of the Act. 31. It has rightly been argued by learned Legal Aid Counsel, appearing for the CCL that without recording the findings, qua the fact that in case, the CCL is released on bail, the CCL would come in contact of any known criminal or expose such juvenile to moral, physical or psychological danger, the approach of the learned Appellate Court is not sustainable in the eyes of law and the learned Appellate Court has fallen into the error. 32. As per Section 12 of the Act, relief can only be declined, if the material is before the Juvenile Justice Board to decline the relief, as per proviso added to Section 12(1) of the Act. 33. At the time of deciding the application for bail, the learned JJB is not supposed to discuss the merits/de- merits of the case to ascertain the guilt/innocence of the CCL. In the absence of any material to justify in bringing the case of the CCL under the definition of ‘exceptional circumstances’, as defined in proviso of Section 12 of the Act, the said order is not sustainable, in the eyes of law. 34 With these observations, this Court is of the view that the order passed by the learned JJB, as upheld by the learned Appellate Court, is not sustainable in the eyes of law, and orders, under challenge, san correctness and legality. 35. 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, she 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. (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 commencing from January, 2026, 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. (vi) The CCL, through her guardian, is directed not to leave the jurisdiction of the Court, and in case, she intends to leave the jurisdiction of the Court, for any purpose, she will seek permission of the Special Judge (Children Court), Chamba Division, Chamba, H.P. 36. With these observations, the petition stands disposed of, so also the pending application(s), if any. 37. 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. 38. Record be returned to the quarter concerned under proper receipt.