Patna High Court – Orders
Nitish Kumar vs The State Of Bihar on 8 January, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.148 of 2024
Arising Out of PS. Case No.-192 Year-2023 Thana- SHERGHATI District- Gaya
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Nitish Kumar, Son of Baleshwar Yadav, Resident Of Village - Gadh
Karmauni, P.S. - Dobhi, District - Gaya, Through His Father And Natural
Guardian Baleshwr Yadav
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. P. N. Shahi, Sr. Advocate
Mr. Amit Anand, Advocate
Mr. Shivam, Advocate
For the Respondent/s : Mr. Arun Kumar Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL ORDER
2 08-01-2025
1. The petitioner, a juvenile delinquent, aged about 15
years, has filed the instant criminal revision through his father
and natural guardian, Baleshwar Yadav, challenging the order,
dated 6th of December, 2023, passed by the learned Special
Judge (Children Court), Gaya in Juvenile Appeal No. 52 of
2023, whereby and whereunder, his prayer for appeal was
rejected, affirming the order dated 28th of August, 2023, passed
by the Juvenile Justice Board, Gaya.
2. It is not in dispute that the petitioner booked in
connection with Sherghati/Dobhi P. S. Case No. 192 of 2023,
dated 19th of February, 2023, under Section 376 of the Indian
Penal Code and Sections 4/6 of the POCSO Act on the
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allegation that he committed rape of a deaf and dumb girl.
3. The petitioner preferred an application for bail
before the Juvenile Justice Board, which was rejected. Against
the said order, he, through his natural guardian, preferred
Juvenile Appeal No. 52 of 2023. The learned Special Judge,
Children Court at Gaya, dismissed the appeal and affirmed the
order of rejection of bail on the following grounds: –
(i) There appears reasonable
grounds for believing that the release of the
juvenile is likely to bring him into association
with any known criminal.
(ii) The release will expose the
juvenile to moral, physical or psychological
danger; and
(iii) His release would defeat the
ends of justice.
4. In paragraph 9 of the impugned judgement, the
Appellate Court narrated the incident, which was allegedly
committed by the petitioner. It is also stated in paragraph 10 of
the impugned order that the Social Investigation Report does not
reveal any positive view about the CICL. There are negative
environment near the house of CICL. There is lack of proper
guidance and lack of morality. As such, the conduct of the CICL
showed criminal proclivities and criminal psychology. If he is
released from the protective custody, there is likelihood of his
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going back in the same environment and the victim being a
minor, physically challenged girl may be prey of the unnatural
lust of the CICL.
5. Chapter-II of the Juvenile Justice (Care and
Protection of Children) Act, 2015 lays down the general
principles of care and protection of children. Section – 3 of the
said Act states: –
“3(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 18 years.
3(iv) Principle of best Interests :
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.
3(v) Principle of Family
responsibility: The primary responsibility of
care, nurture and protection of child shall be
that of the biological family or adoptive or first
aid parents, as the case may be.
3(xiv) Principle of fresh start: all
past records of any child under the Juvenile
Justice System should be erased except in
special circumstances.
6. Mr. P. N. Shahi, learned Sr. Advocate appearing on
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behalf of the CICL submits that both the Juvenile Justice Board
as well as the Appellate Court failed to consider that the prayer
for bail of CICL should be considered with a presumption of
innocence.
7. In the instant case, the Probation Officer submitted
the Social Investigation Report (SIR) in a mechanical manner
without assigning specific incident of his apprehension and both
the JJB and the Court of Appeal accepted SIR as gospel truth
relating to the future conduct of the petitioner.
8. This Court has already recorded that an application
for bail filed on behalf of the CICL shall be considered with a
presumption of innocence.
9. Section 12(1) of the said Act makes the provision
relating to bail to a person who is apparently a child to be in
conflict with law. Section 12(1) says: –
“12(1) When any person, who is
apparently a child and is alleged to have been
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
Criminal Procedure Code, 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
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10. The word “shall” in Section 12(1) of the said
act, raises a presumption that Section 12(1) is imperative, but
for the proviso. The prima facie inference may be rebutted on
the basis of probe of conditions contained in the proviso to the
effect that the release is likely to bring him into association with
any known criminal; secondly that the release is likely to expose
him to moral, physical or psychological danger; (c) that release
of juvenile in conflict of law would defeat the ends of justice.
11. In the impugned judgement, this Court does not
come across with the finding made by the Appellate Court that
the proviso to Section 12 were applicable against the petitioner.
12. In Lalu Kumar @ Lal Babu @ Lallu vs The
State of Bihar, reported in 2019 (4) PLJR 833, this Court
while interpreting Section 12 of the said Act has laid down the
principle that the Board while considering the bail of a juvenile
is duty bound to follow the principle of “best interest”,
“repatriation” and “restoration” of child. The gravity and nature
of offence are immaterial for consideration of bail of a juvenile.
13. It is high time to remind both the JJBs and the
learned Special Judges, Children’s Court that as per Section 12
of the Act, an application for bail is not decided by reference
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to classification of offences as bailable or non-bailable under
the Cr.P.C.
14. In Nand Kishore (in JC) Vs. State, reported in
(2006) 4 RCR (Cri) 754, Delhi High Court while considering
the first condition of proviso of Section 12 of the said 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 known criminals. 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 identified the
“known criminals” and thereafter the Court must have
reasonable grounds to believe that the juvenile, if released,
would associate with this “known criminals”. It cannot be
generally observed that the release of the juvenile would bring
him into association with criminals without identifying the
criminal and without returning a prima facie finding with regard
to the nexus between the juvenile and such criminals.
15. Section 13(i)(ii) of the said Act provides that
the Probation Officer shall submit a Social Investigation Report
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within two weeks from when a child is apprehended or brought
to the Board 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
an enquiry. The Social Investigation Report (SIR), which has
been defined in Rule 2(xvii) of the Juvenile Justice (Care and
Protection of Children) Model Rules, 2016 means the report of a
child containing 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. This report becomes important for
the enquiry 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. The purpose behind this provision is to enable
Juvenile Justice Board to get a glimpse of the social
circumstances of the child before any order regarding bail or of
any other nature is passed.
16. From perusal of the Social Investigation Report,
It is found that the concerned Probation Officer made a table
work and mechanically prepared SIRs without following Rule
2(XVI) and Form – 6 of the Model Rules of 2016. A Co-ordinate
Bench of the Allahabad High Court in Juvenile X through his
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father Vs. State of U. P. and Anr., reported in 2021 SCC
Online All 1091 succinctly dealt with the requirement to be
followed by the Probation Officer while filing Social
Investigation Report. Paragraph 23 of the judgement is very
relevant for our purpose and the same is reproduced
hereinbelow: –
“23. ‘Form-6′ of The Juvenile
Justice (Care and Protection of Children)
Model Rules, 2016, contains a detailed
proforma of the social investigation report. The
report has three parts; the first part requires the
Probation Officer to give the data or
information regarding the close relatives in the
family, delinquency records of the family, social
and economic status, ethical code of the family,
attitude towards religion, relationship amongst
the family members, the relationship with the
parents, living conditions etc. Thereafter, the
report requires the Probation Officer to provide
the child’s history regarding his mental
condition, physical condition, habits, interests,
personality traits, neighbourhood, neighbours’
report, and school, employment, if any, friends,
the child being subject to any form of abuse,
circumstances of apprehension of the child,
mental condition of the child. The most
important part of the report is the third part i.e.
the result of inquiry where the Probation
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the emotional factors, physical condition,
intelligence, social and economic factors,
suggestive cause of the problems, analysis of
the case including reasons/contributing factors
for the offence, opinion of experts consulted and
recommendation regarding rehabilitation by the
Probation Officer/Child Welfare Officer. It is
incumbent upon the Juvenile Justice Board to
take into consideration the social investigation
report and make an objective assessment of the
reasonable grounds for rejecting the bail
application of the juvenile.”
17. On perusal of the impugned order, it appears to
this Court that both the JJBs and the Courts of Appeal have dealt
with the application for bail and connected appeal on the
consideration that the offences committed by the petitioner is
heinous offences. Both the Board and the Court of Appeal must
be free from this mind set that an application for bail of CICL
cannot be rejected on the ground of heinous offence. At the
same time, the Board and the Court of Appeal shall remain alive
to impose conditions for bail in the manner through which the
future of CICL is protected. He may be kept under the
supervision and guidance of a proper person so that he may not
come in association of known criminals or that the order of bail
expose him to moral, physical or psychological danger or it will
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defeat ends of justice.
18. For the reasons stated above, I am inclined to
allow the revision on contest.
19. The petitioner/CICL shall be released on bail on
furnishing bails bonds of Rs. 20,000/- with two sureties of the
like amount each to the satisfaction of the concerned Court with
further condition that:
(i) one of the sureties must be the parent of the
petitioner; and
(ii) the other shall be the Panchayat Member of the
village or any other responsible person of the village / locality
having no criminal antecedents with further conditions that the
CICL shall remain present before the Board or the Children’s
Court, as the case may be, on each and every date of trial of the
case.
20. The order of bail shall be automatically
cancelled in violation of any of the conditions.
21. Let a copy of this judgement be transmitted by
the Registry of this Court to all the District Judges within two
weeks for circulation to all the Juvenile Justice Boards and
Children’s Courts, constituted under the said Act (Act 2 of
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2016) for their appraisal as to the mode and manner and the
factual and legal consideration while granting or rejecting a
prayer for bail or connected Appeal under the said Act.
22. Office is directed to send the email of this order
to the respective Courts.
(Bibek Chaudhuri, J)
skm/-
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