Patna High Court – Orders
Dilkhush Kumar vs The State Of Bihar on 17 July, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.326 of 2025
Arising Out of PS. Case No.-377 Year-2024 Thana- NARPATGANJ District- Araria
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Dilkhush Kumar Son of Mahendra Chandara Yadav @ Mahendra Yadav
Resident of Village - Khaira Chanda, Ward No.-03, P.S. - Narpatganj, District
- Araria. Under the Guardianship of Mother Mrs. Prabha Devi, aged about 40
years, Wife of Mahendra Yadav @ Mahendra Chandra Yadav, Resident of
Village - Khaira Chanda, Ward No.-03, P.S. - Narpatganj, District - Araria.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Prafull Chandra Thakur
For the Respondent/s : Mr. Anand Mohan Prasad Mehta
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL ORDER
4 17-07-2025
The instant appeal under Section 101 (5) of the
Juvenile Justice (Care and Protection of Children) Act, 2015
has been filed, assailing the order of rejection of bail by
Children’s Court on the ground that the CICL was charged
with the offence of POCSO Act and he required to be tried
under the said Act.
2. It is urged on behalf of the prosecution that
Section 34 of the POCSO Act lays down the procedure in case
of commission of offence by child and determination of his
age.
3. Section 34 of the POCSO Act runs thus: –
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025
“34. Procedure in case of
commission of offence by child and
determination of age by Special Court.
(1) Where any offence under this
Act is committed by a child, such child shall
be dealt with under the provisions of 1[the
Juvenile Justice (Care and Protection of
Children) Act, 2015 (2 of 2016)].
(2) If any question arises in any
proceeding before the Special Court
whether a person is a child or not, such
question shall be determined by the Special
Court after satisfying itself about the age of
such person and it shall record in writing
its reasons for such determination.
(3) No order made by the Special
Court shall be deemed to be invalid merely
by any subsequent proof that the age of a
personas determined by it under sub-
section (2) was not the correct age of that
person.”
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025
4. Thus, it is submitted on behalf of the prosecution
that if a child under the age of 18 years is an accused under
POCSO Act, the said Court under the POCSO Act is
empowered to adjudicate and decide the age of the accused in
the manner contemplated in the Juvenile Justice (Care and
Protection of Children) Act, 2015 and trial of such offence
shall be held by the said Court under POCSO Act.
5. This issue came up for consideration before the
Hon’ble Supreme Court in Thirumoorty v. State, represented
by the Inspector of Police, reported in 2024 SCC OnLine SC
375. It is held by the Hon’ble Supreme Court in Paragraph 27
of the said judgment: –
“27. Thus, there is no escape from
the conclusion that even before the result of
investigation was filed, the fact regarding
the accused being a CICL was well known
to the Investigating Officer (PW-25), the
prosecution and the trial Court as well.”
6. The Hon’ble Apex Court next reproduced the
General principles to be followed in administration of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025
As laid down by the Hon’ble Apex Court, Section 3 states
thus: –
“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
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025child’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.
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025
(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.
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025
(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
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025
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.”
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025
7. Section 9 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 lays down the procedure to
be followed by a Magistrate who has not been empowered
under this Act. Section 9 runs thus: –
“9. Procedure to be followed by a
Magistrate who has not been empowered
under this Act.– (1) When a Magistrate,
not empowered to exercise the powers of
the Board under this Act is of the opinion
that the person alleged to have committed
the offence and brought before him is a
child, he shall, without any delay, record
such opinion and forward the child
immediately along with the record of such
proceedings to the Board having
jurisdiction.
(2) In case a person alleged to
have committed an offence claims before a
court other than a Board, that the person is
a child or was a child on the date of
commission of the offence, or if the court
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025itself is of the opinion that the person was a
child on the date of commission of the
offence, the said court shall make an
inquiry, take such evidence as may be
necessary (but not an affidavit) to
determine the age of such person, and shall
record a finding on the matter, stating the
age of the person as nearly as may be:
Provided that such a claim may
be raised before any court and it shall be
recognised at any stage, even after final
disposal of the case, and such a claim shall
be determined in accordance with the
provisions contained in this Act and the
rules made thereunder even if the person
has ceased to be a child on or before the
date of commencement of this Act.
(3) If the court finds that a person
has committed an offence and was a child
on the date of commission of such offence,
it shall forward the child to the Board for
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025passing appropriate orders and the
sentence, if any, passed by the court shall
be deemed to have no effect.
(4) In case a person under this
section is required to be kept in protective
custody, while the person’s claim of being a
child is being inquired into, such person
may be placed, in the intervening period in
a place of safety.
(emphasis supplied)
8. Section 15 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 deals with the preliminary
assessment into heinous offences by Board, which runs
hereunder: –
“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
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025physical 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 subsection (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
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025as may be, for trial in summons case under
the Criminal Procedure Code, 1973:
Provided that the order of the
Board to dispose of the matter shall be
appealable under sub-section (2) of section
101:
Provided further that the
assessment under this section shall be
completed within the period specified in
9. Section 18 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 speaks about orders
regarding child found to be in conflict with law. Section 18
runs as hereunder: –
“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,
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025notwithstanding 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:
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025
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
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025providing 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
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025
(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.”
10. Section 19 deals with the powers of the
Children’s Court, which runs as hereunder: –
“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 Criminal
Procedure Code, 1973 (2 of 1974) and pass
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025appropriate 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)-(5)……….”
11. Thus it is held by the Hon’ble Supreme Court in
Thirumoorthy (supra) that trial of a CICL shall be conducted
under the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2015 and not under the POCSO
Act.
12. In view of aforesaid decision passed by the
Hon’ble Supreme Court, this Court has no other alternative
but to hold that a CICL involved in a case under the POCSO
Act shall be dealt with either by the Juvenile Justice Board or
by the Children’s Court as per the provision of the Juvenile
Justice (Care and Protection of Children) Act, 2015.
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025
13. In view of the above decision, this Court takes up the
instant appeal for determination.
14. The appellant has prayed for bail on the ground that
he is a child, in accordance with the definition contained in
Section 2(12) of the Juvenile Justice (Care and Protection of
Children) Act, 2015. Secondly, it appears from the evidence of
the victim girl that, on the date and time of the occurrence, she
was playing in her house when one Sonakshi called her and
took her to the house of the appellant. The appellant
committed some act as a result of which she sustained a
bleeding injury on her private part. When her grandmother
saw her, she was lying on a cot in the house of the appellant. It
is stated by the appellant that he was about 17 years and 21
days old on the date of the occurrence.
15. The learned Advocate for the appellant has also
produced the medical examination report of the victim. It is
ascertained from the said medical examination report that no
signs of sexual assault were found on the body of the victim,
but there might have been an attempt of sexual assault. The
case before the concerned Children’s Court is at the trial stage.
Most of the witnesses have been examined; therefore, I am not
Patna High Court CR. APP (SJ) No.326 of 2025(4) dt.17-07-2025
inclined to release the accused on bail at this stage. If he is
released on bail, the trial may be prolonged and delayed.
While rejecting the bail application of the appellant, the
concerned Children’s Court is specifically directed to dispose
of the case within three months from the date of
communication of this order.
16. Further, the appellant is at liberty to renew his prayer
for bail if the trial is not concluded within three months..
17. With the above order, the instant Cr. Appeal (SJ) No.
326 of 2025 is dismissed.
(Bibek Chaudhuri, J)
Suraj Dubey/-
U T
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