Patna High Court
Avnish Kumar vs The State Of Bihar on 7 August, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2609 of 2024
Arising Out of PS. Case No.-27 Year-2023 Thana- MAHILA P.S. District- Sitamarhi
======================================================
Avnish Kumar, Son of Kamlesh Kuwar, R/O Vill.- Husainpur, P.S.-
Mahindwara, Dist.- Sitamarhi, through his natural guardian Father Kamlesh
Kuwar, Male, Age - 46 years, Son of Lal Bahadur Kuwar, R/O Vill.-
Husainpur, P.S.- Mahindwara, Dist.- Sitamarhi.
... ... Appellant
Versus
1. The State of Bihar
2. Nisha Devi, Wife of Mahesh Kunwar, R/o, Village - Husainpur, P.O.
Chakshambhu, P.S. Mahindwara, Dist. Sitamarhi.
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Vindhya Keshari Kumar, Sr. Advocate
Mr. Ravi Shankar Pathak, Advocate
For the State : Mr. Chandra Sen Prasad Singh, APP
For the Resp. No.2 : Ms. Smiti Bharti, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 07-08-2025
Introduction
The present Criminal Appeal has been preferred by
the Appellant against the impugned order dated 16.04.2024,
passed by learned A.D.J.-Ist-Cum-P.O. (Children Court),
Sitamarhi in Sitamarhi Mahila P.S. Case No. 27 of 2023 (Trial
No. 1 of 2024) whereby learned Children Court has rejected the
bail application of the Appellant, holding as follows:
"From perusal of record and the case-diary. It
transpires that the witnesses in the case-diary have
supported the prosecution case. The victim has also
supported the incident in her statement u/s. 164 Cr.P.C. It
also appears from the record that after completion of
investigation, charge-sheet has been submitted in the case
against the petitioner for the offences u/s. 342, 363,
366(A), 376 (AB) I.P.C. and Sec. 6 of POCSO Act. From
perusal of case-diary, it appears that the victim has made
specific allegation against the C.C.L. 'A" in her statement
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
2/29
u/s. 161 Cr.P.C. and in her statement u/s. 164 -Cr.P.C. The
Social Investigation Report is available on the record. It
appears that the effect of the association of bad society is
the reason of said offence. Therefore, the atmosphere
outside the Observation Home is not conducive for the
C.C.L. 'A' as there is every possibility that the C.C.L.'A'
would come in the association of criminals and would
commit another offence and since the nature of offence is
heinous. Hence, the release of the C.C.L. would not only
expose him to moral, physical and psychological danger
but would also lead to defeat the ends of justice.
Considering the aforesaid facts and
circumstances of the case and seriousness of the offence I
am not inclined to grant bail to the C.C.L.'A'. Accordingly,
the prayer for bail is hereby rejected."
Prosecution Case
2. The prosecution case, as emerging from the written
report of the mother of the victim dated 07.09.2023, is that when
the three year old minor daughter of the informant was playing
in front of her house at 7:00 PM in the evening on 04.09.2023,
she was enticed away by the Appellant to his house, where he
committed rape upon her. Subsequent to the occurrence, the
victim came to the informant weeping and stated to her that the
Appellant had undressed her. From the perusal of her person, it
appears to the informant that she was subjected to rape and the
clothes of the victim was stained with blood. It is also stated that
the victim was carrying chips in her one hand.
Social Investigation Report
3. Social Investigation Report is on record, as per
which both the parents of the Appellant are alive and they are
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
3/29
fifty years of age. The Appellant has also two brothers and three
sisters and both the brothers are educated and they are involved
in cultivation. Even his grandfather, aged about 70 years is alive
and he is also educated up to intermediate. As per further report,
the behavior of the Appellant towards the family members is
cordial. He is also religious and he has no habit of any smoking,
drinking, gambling or begging. He plays cricket and likes
reading books and religious activities. He is obedient to his
parents and he contributes to the business of his family. He is a
student of B.A. (Hons.), Ist Year. He has also taken computer
training and his attitude towards his friends is positive. As per
the neighbors, his conduct is good. His neighbors belong to
farmer and labor class, but he has never misbehaved with them.
It is also reported that due to previous enmity and land dispute,
he has been falsely implicated in this case under conspiracy. The
family of the Appellant has a pucca house and some land. It is
also reported that there is long dispute between the family of the
Appellant and the prosecution side. As per further report, the
father of the victim has taken one lakh rupee as a loan from the
brother of the Appellant and that money was to be returned in
the month of November. But when the money was demanded,
the case was lodged against the Appellant under conspiracy. The
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
4/29
Appellant wants to continue his studies and join Indian Defence.
Factual Background
4. On the basis of the written report of the informant,
Mahila P.S. Case No. 27 of 2023 was registered on 07.09.2023,
for the offence punishable under Sections 342, 363, 366(A) and
376 of the Indian Penal Code and Section ¾ of the POCSO Act.
5. After investigation, charge-sheet for offence
punishable under Sections 342, 363, 366(A), 376(AB) of the
Indian Penal Code and Section 6 of the POCSO Act was filed
before the Special Judge, POCSO Act, Sitamarhi. However, on
the plea of juvenility taken by the Appellant, the matter was
referred to Juvenile Justice Board, who found the Appellant 17
years and 17 days old on the date of the alleged occurrence, and
hence, he was declared to be juvenile and thereafter, the matter
was fixed for preliminary assessment of the juvenile.
6. By the order dated 12.03.2024 passed by learned
J.J. Board, Sitamarhi in J.J.B. Case No. 22 of 2023, the
Petitioner was found to be physically and mentally competent to
know the consequences of the alleged offence, on the basis of
the psychological test as well as SIR Report and interaction of
the J.J. Board with the juvenile. The matter was transferred to
Children's Court under Section 18(3) of the J.J. Act, 2015
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
5/29
because the alleged offence was heinous in nature punishable
under Sections 376, 342, 363, 366A, 376AB IPC and Section 6
of the POCSO Act. The Children Court has rejected the bail
application of the petitioner by the impugned order.
Submission on behalf of the Petitioner
7. I heard learned counsel for the appellant, learned
APP for the State and learned counsel for the Respondent No. 2.
8. Learned counsel for the appellant submits that the
appellant is innocent and has falsely been implicated in this
case. He further submits that FIR has been lodged after delay of
3 days which shows that the case was lodged after deliberation
and concoction. He further submits that there is also no cogent
evidence / material in support of the allegation. He refers to
medico-legal examination of the alleged victim as per which the
hymen of the alleged victim was intact and no spermatozoa was
found on her private parts and there is also no other scientific
evidence to connect the appellant with the alleged offence.
9. He further submits that bail to the a juvenile in
conflict with law is a rule and denial of bail is an exception and
bail can be denied to juvenile-appellant only on limited grounds,
as provided in proviso to Section 12 of J.J. Act, 2015. But as per
the material on record, no ground is made out to deny bail to the
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
6/29
appellant. The observation of the Court below in the impugned
order is made without any basis. The impugned order is also
based on irrelevant considerations.
10. He further submits that in regard to bail under
Section 12 of the J.J. Act, 2015, there no distinction made
between a juvenile of 16 years of age and a juvenile of age
between 16 to 18 years. As per Section 12 of J.J. Act, even if a
juvenile is between 16 to 18 years of age and he is alleged to
have committed heinous offence, he is entitled to get bail under
Section 12 of the J.J. Act, 2015.
11. He refers to and relies upon Lalu Kumar @ Lal
Babu v. State of Bihar (2019 (6) BLJ 216) passed by a co-
ordinate Bench of this Court. He also refers to and relies upon
Biswajit Kumar Pandey @ Lalu Kumar v. State of Bihar
(2024 SCC OnLine Pat 8499), Nitish Kumar v. State of Bihar
(2025 SCC OnLine Pat 2421), Chandan Kumar Paswan v.
State of Bihar (2025 SCC OnLine Pat 2434) and Rakesh Rai
v. State of Bihar (2025 SCC OnLine Pat 374) passed by this
Court.
12. He also submits that the Appellant is detained in
the Observation Home for about one year and ten months since
08.09.2023
.
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
7/29
13. Hence, in view of the learned counsel for the
appellant, the impugned order is not sustainable in the eye of
law and liable to be set aside, and the appeal deserves to be
allowed, releasing the appellant on bail.
Submissions on behalf of the State and Informant
14. However, learned APP for the State and learned
counsel for the respondent no. 2 (informant) vehemently oppose
the prayer of the appellant for bail, submitting that the appellant
has committed heinous offence against three years old female
child and there is cogent material in support of the allegation.
They further submit that even in her statement as recorded under
Section 164 of the Cr.P.C., the victim child has supported the
prosecution case against the appellant.
15. They further submit that after preliminary
assessment, the appellant has been found to be physically and
mentally mature to understand the consequences of the alleged
offence and he is being tried as adult by children Court.
16. They further submit that the trial is at the stage of
prosecution evidence and victim-child is still to be examined.
17. They also submit that the benefit of Section 12 of
the J.J. Act, 2015 cannot be given to a juvenile who has been
found to be between 16 to 18 years of age and alleged to have
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
8/29
committed heinous offence.
18. They also submit that there is no illegality or
infirmity in the impugned order passed by learned children
Court denying bail to the appellant. The grounds for denial are
well founded. In view of learned A.P.P. and learned counsel for
the Respondent No.2, the appeal is liable to be dismissed.
19. They also refer to and rely upon Child in Conflict
With Law v. State of Madhya Pradesh as decided by Madhya
Pradesh High Court and as reported in 2023 SCC OnLine MP
585, wherein High Court of Madhya Pradesh has observed as
follows:
“……On one hand, all decisions regarding the child
should be based on primary consideration of best interest
of the child, on the other hand, the demands of justice of
the other side cannot be simply shrugged off. In fact,
Society has always been sensitive towards offences
against the women and innocent children. Therefore,
while considering the prayer for bail in cases related to
rape/aggravated penetrative sexual assault upon a minor,
particularly, tender aged girl, the court has to see whether
release would not expose juvenile to the danger of
retribution by the Society. In cases of rape with child, such
a possibility always exists. Where victim is a child, the
court would do well in its limit to refuse to exercise
discretion vested under section 12 of the Act and bail can
also be refused on the ground that release would defeat the
ends of justice.”
20. They also referred to and relied upon Om
Prakash v. State of Rajasthan as reported in (2012) 5 SCC
201, wherein Hon’ble Supreme Court has observed as follows:
“23. Hence, while the courts must be sensitive in
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
9/29dealing with the juvenile who is involved in cases of
serious nature like sexual molestation, rape, gang rape,
murder and host of other offences, the accused cannot be
allowed to abuse the statutory protection by attempting to
prove himself as a minor…………….
……………………………………………..
38. The Juvenile Justice Act which is certainly meant
to treat a child accused with care and sensitivity offering
him a chance to reform and settle into the mainstream of
society, the same cannot be allowed to be used as a ploy to
dupe the course of justice while conducting the trial and
treatment of heinous offences. This would clearly be
treated as an effort to weaken the justice dispensation
system and hence cannot be encouraged.”
Legal Provisions regarding Bail to Juveniles
under the J.J. Act, 2015.
21. Before I consider the rival submission of the
parties, it would be pertinent to refer to Section 12 of the
Juvenile Justice (Care and Protection) Act, 2015, which deals
with bail to the Juvenile. Section 12 of the Act reads as
follows:-
“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 person’s 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 subsection (1) by the officer-in-charge
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
10/29of 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.”
(Emphasis Supplied)
22. From perusal of Section 12 of the J.J. Act, 2015, it
clearly emerges that Section 12 of the Act overrides the bail
provisions as contained in the Criminal Procedure Act, 1973 or
any other law for time being in force. It further emerges that as
per Section 12 of the Act, bail to the Juvenile is a rule and
refusal of the same is an exception and Juvenile can be denied
bail only on the following three grounds: (i) if there appears
reasonable grounds for believing that the release is likely to
bring that person into association with any known criminal, or,
(ii) expose the said person to moral, physical or psychological
danger, or, (iii) the person’s release would defeat the ends of
justice.
23. It also emerges that seriousness of the alleged
offence or the age of the juvenile are also no relevant
considerations for denial of bail under Section 12 of the J.J. Act.
Even the child who is 16 years or above 16 years of age and is
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
11/29
alleged to have committed a heinous offence is also entitled to
get bail under Section 12 of the Act, 2015. There is no
classification, whatsoever, provided in Section 12 of the Act,
2015 in regard to grant of bail. Section 12 is applicable to all
juveniles in conflict with law without any discrimination of any
nature. (Also refer to Lalu Kumar @ Lal Babu Vs. State of
Bihar, 2019 (6) BLJ 2016).
24. Here, it would be also pertinent to point out that
the ends of justice as used in the proviso to Section 12(1) of the
J.J. Act is drastically different to one as used in the context of
penal statutes. The ends of justice in the context of any Act is
ascertained on the basis of the purpose and object of that Act
and the objective of the J.J. Act is to reform and rehabilitate the
juveniles and not to punish them, as emerges from the preamble
to the J.J. Act, which reads as follows:
“An Act to consolidate and amend the law
relating to children alleged and found to be in conflict
with law and children in need of care and protection by
catering to their basic needs through proper care,
protection, development, treatment, social reintegration,
by adopting a child-friendly approach in the adjudication
and disposal of matters in the best interest of children and
for their rehabilitation through processes provided, and
institutions and bodies established, hereinunder and for
matters connected therewith or incidental thereto.”
(Emphasis Supplied)
25. The purpose and object of the J.J. Act manifests
in Section 3 also of the J.J. Act, providing for general principles
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
12/29
to be followed in the administration of the Act. Section 3 of the
Act reads as follows:
“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:–
…………………………………………………………
(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.
……………………………………………………………
(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.”
(Emphasis supplied)
26. The J.J. Act is based on the belief that children are
the future of the society and in case they go into conflict with
law under some circumstances, they should be reformed and
rehabilitated and not punished. No society can afford to punish
its children. Punitive approach towards children in conflict with
law would be self-destructive for the society.
27. As such, if the keeping of the child in custody is
helpful in his development and rehabilitation or protection, only
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
13/29
then it could be said that release of the child would defeat the
ends of justice. (Also refer to Abhishek Vs. State, 205 CriLJ
(NOC) 115 (Delhi) and Manoj Vs. State (NCT of Delhi, 2006
CriLJ 4759).
28. It also emerges from Section 3 of the Act that
Reformatory or Observation Home is only one of the measures
contemplated by our legislature for reforming and rehabilitating
the delinquent children. However, the family of the child in
conflict with law has been considered by the legislature as the
best and first desirable institution to achieve the object of the
Act. Hence, the primary responsibility of care and protection of
the child has been given to the biological family or adoptive or
foster parents of the child and it has been contemplated that
every child in conflict with law has right to be reunited with his
family at the earliest. Institutionalization of a juvenile in conflict
with law has been contemplated as the last resort. Such
principles manifest in clauses v, xii and xiii of Section 3 of the
Act which read as follows:
“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:–
…………………………………………………………
(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
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
14/29parents, as the case may be.
………………………………………………………….
(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 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.”
(Emphasis Supplied)
29. Hence, under the J.J. Act, 2015, a child in conflict
with law is not expected to be treated as an adult offender. J.J.
Boards/Courts are required to adopt fundamentally a different
approach while dealing with juveniles in conflict with law. They
are expected to deal with such juveniles with all sensibility and
responsibility, keeping in mind the purpose and object of the J.J.
Act to reform and rehabilitate the child, so as to make him a
responsible and productive member of the society. The society
would get ruined if such children are dealt with punitive
approach.
30. Similar view has been taken by this Court in
Biswajit Kumar Pandey @ Lalu Kumar Case (supra), Nitish
Kumar Case (supra), Chandan Kumar Paswan Case (supra)
and Rakesh Rai Case (supra).
31. In Re-Exploitation of Children in Orphanages
in the State of T.N. Vs. Union of Indian and Ors. as reported
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
15/29
in (2020) 14 SCC 327, Hon’ble Supreme Court has held that
bail to a juvenile can be denied only on three grounds as
provided in the Proviso to Section 12(1) of the J.J. Act, 2015.
The relevant part of the judgment reads as follows:
“7. Sub-section (1) makes it absolutely clear that a
child alleged to be in conflict with law should 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. The only embargo created is that in
case the release of the child is likely to bring him into
association with known criminals or expose the child
to moral, physical or psychological danger or where
the release of the child would defeat the ends of
justice, then bail can be denied for reasons to be
recorded in writing. Even if bail is not granted, the
child cannot be kept in jail or police lock-up and has to
be kept in an observation home or place of safety.”
(Emphasis supplied)
32. Hon’ble Apex Court in Juvenile in Conflict
with Law Vs. State of Rajasthan, as reported in 2024 SCC
OnLine SC 5297 also has held that juvenile in conflict with law
has to be necessarily released on bail unless the proviso is
applicable and there must be clear finding regarding the
applicability of the proviso. The relevant part of judgment reads
as follows:
“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
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
16/29JJ 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.
…………………………………………………………………………….
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.
11.We direct that the juvenile in conflict with law shall
be released on bail without surety. However, the
jurisdictional Juvenile Justice Board shall issue
appropriate directions to the jurisdictional Probation
Officer to keep the juvenile under supervision and to
submit periodical reports to the Board about the
conduct of the Juvenile.”
(Emphasis supplied)
33. Karnataka High Court in XXX (accused
before the J.J. Board) Vs. State and Others as reported in
MANU/KA/3957/2024 has also held that Section 12 of the J.J.
Act, 2015 is applicable even to a juvenile who is being tried as
adult by Children Court and bail to him can be denied only on
the grounds as provided in the Proviso to Section 12(1) of the
J.J. Act, 2015. The relevant part of judgment reads as follows:
“9. Section 12(1) of the Act provides that
notwithstanding anything contained in the Code of
Criminal Procedure, 1973, or any other law for the
time being in force, a child, who is produced before the
Board, shall be released on bail subject to proviso to
Section 12(1) of the Act of 2015. Therefore, it is very
clear that even if the child is ordered to be tried as a
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
17/29adult, as provided under Section 18(3) of the Act of
2015, for the purpose of his bail application, Section
12 of the Act of 2015 would be applicable and his bail
application cannot be considered under the provisions
of Code of Criminal Procedure. As is evident from
Section 12 of the Act of 2015, the only embargo in not
releasing a child on bail is that there appears a
reasonable ground that his release is likely to bring him
into any association with any known criminal or
expose him to moral, physical or psychological danger
or that release of such a person would defeat the ends
of justice. The three disentitlement categories
contemplated in the proviso to Section 12(1) of the Act
of 2015, would not come in the way of the petitioner’s
application being considered under Section 12 of the
Act of 2015 for the following reasons:-
(a) The nature of crime committed by the petitioner is
not likely to bring him into association with any known
criminal or expose him to moral, physical or
psychological danger; (b) There is no such report
available on record which suggests that the petitioner is
likely to be exposed to moral, physical and
psychological danger; (c) The victim girl and her
parents do not apprehend any danger from the
petitioner and they have appeared before the Special
Court and stated that they have no objection for
enlarging the petitioner on bail.”
(Emphasis supplied)
34. Allahabad High Court in Radhika (Juvenile)
Vs. State of U.P., as reported in 2019 SCC OnLine All 4911
has also held that under Section 12 of the J.J. Act, 2015, nature
and character of the alleged crime is not a relevant consideration
and bail can be denied to a juvenile only on the grounds as
provided in the Proviso to Section 12 of the J.J. Act, 2015. The
relevant part of judgment reads as follows:
“27.It is explicit from the plain reading of Section 12
of the Act that irrespective of nature and character of
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
18/29the crime, if a ‘child’ brought by the police or appears
before the Board, such child shall, notwithstanding
anything contained in Code of Criminal Procedure,
1973 or any other law enforced in time, “shall’ be
released on bail with or without surety under the
supervision of Probation Officer or under the care of
any fit person. The word “fit person’ is defined under
section 2(28) of the Act, means any person prepared to
owe responsibility of a child for a specific purpose and
after making due enquiry in this behalf, the Board may
give the custody of child in the hand of “fit person’.
Thus, it is clear that the child delinquent has got a right
to be released on bail with or without surety and the
gravity, nature and depth of the offence shall not come
into the way.
28. However, in the proviso of Section 12(1) of the
Act, there are three embargoes/riders; namely; (a) if
there appears reasonable ground for believing that the
release is likely to bring that person into association
with any known criminal or; (b) expose that person as
moral, physical or psychological danger or; (c) the
person’s release would defeat the ends of justice, the
Board shall record the reasons for denying the bail and
circumstances lead to such a decision.
29. From the plain reading of the above proviso, it has
been clearly borne out that (1) the juvenile delinquent
has got unqualified right to seek bail irrespective of the
gravity, depth and seriousness of the offence; (2) his
bail could be denied strictly on the three grounds, as
mentioned under the proviso of Section 12 of the Act
by the Board”.
(Emphasis supplied)
35. Punjab and Haryana High Court has also
held in Vishvas vs. State of Punjab as reported in
MANU/PH/0067/2021 that under Section 12 of J.J. Act, 2015,
the nature and gravity of the alleged offence is not relevant
while considering bail application to a juvenile. Bail can be
denied to a juvenile under Section 12 of the J.J. Act, 2015 only
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
19/29
on the grounds as provided in the proviso to Section 12(1) of the
J.J. Act and there must be material on record in support of the
grounds. It has also held that ‘ends of justice being defeated’
has to be considered in the context of the welfare of the
juvenile. The relevant part of judgment reads as follows:
“7. From a bare reading of the provisions of Section 12
of the J.J. Act, it appears that the intention of the
legislature is to grant bail to the juvenile irrespective of
the nature or gravity of the offence alleged to have
been committed by him, and bail can be declined only
in such cases where reasonable grounds are there for
believing that the release is likely to bring the juvenile
into association of any known criminal or expose him
to moral, physical or psychological danger, or that his
release would defeat the ends of justice. Meaning
thereby, as per aforesaid provision, a juvenile can be
denied the concession of bail, if any of the three
contingencies specified under Section 12(1) of the J.J.
Act is available. Similar view was observed in cases
Manoj Singh vs. State of Rajasthan 2004(2) RCC 995,
Lal Chand v. State of Rajasthan MANU/RH/1042/2005
: 2006(1) RCC 167, Prakash v. State of Rajasthan
MANU/RH/0549/2005 : 2006(2) RCR (Criminal) 530
and Udaibhan Singh alias Bablu Singh v. State of
Rajasthan MANU/RH/1038/2005 : 2005(4) Crimes
649.
8. Learned counsel for the respondent-State has also
not pointed out any material available on record to
show that there are reasonable grounds for believing
that the petitioner is likely to come into the association
of any known criminal if released on bail, or his
release will expose him to moral, physical or
psychological danger. The order passed is mechanical
and without adhering to the provisions of Section 12(1)
of the J.J. Act, which specifies that ‘the Board shall
record the reasons for denying the bail and
circumstances that led to such a decision.’
…………………………………………………………
12. The Supreme Court and various High Courts, time
and again have reiterated the well settled position of
law, that gravity of offence is immaterial in deciding
the bail application. Bail of a child in conflict with law
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
20/29cannot be rejected in a routine manner and if the bail is
declined, a reasoned order has to be given by the
Board. A juvenile has to be released on bail
mandatorily unless and until the exceptions carved out
in proviso to Section 12(1) of the J.J. Act, 2015 itself
are made out. The exceptions are noted being:-
a) a reasonable ground for believing that the release is
likely to bring the juvenile into association with any
known criminal;
b) his release is likely to expose him to any moral,
physical or psychological danger; and
c) his release would defeat the ends of justice.
…………………………………………………………………………….
…………………………………………..
14. The third exception namely ‘ends of justice being
defeated’ has to be considered in the context of the
welfare of the juvenile, as has been held by the Delhi
High Court in Master Abhishek (Minor) Vs. State
(Delhi) MANU/DE/0445/2005 : 2005 VI AD Delhi 18.
(Emphasis supplied)
36. Similar view has been taken by Rajasthan
High Court in Gau v. State of Rajasthan, 2025 as reported in
SCC OnLine Raj 2526. The relevant part of the judgment reads
as follows :
“7.The language of Section 12 of the Act of 2015
conveys the intention of the Legislature to grant bail to
the juvenile, irrespective of nature or gravity of the
offence, alleged to have been committed by him and
bail can be denied only in the case where there appears
reasonable grounds for believing that the release 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
ends of justice.
(Emphasis supplied)
37. High Court of Uttaranchal in X (Juvenile in
conflict with law) Vs. State of Uttarakhand, as reported in
2025 SCC OnLine Utt 157 has also held that the Juvenile
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
21/29
Justice Act is child friendly and all decisions regarding the child
under the Act should be based on primary consideration of the
best interest of the child. It has been also held that any juvenile
in conflict with law is entitled to get released on bail
irrespective of nature of the offence. Bail could be denied to him
only on the grounds as provided in the proviso to Section 12 (1)
of the J.J. Act., 2015. The relevant part of judgment reads as
follows:
8. For a child in conflict with law, every offence is
bailable. The CIL is entitled to be released on bail as
per Section 12 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (“the Act”),
irrespective of the offence having been classified
bailable or non bailable. The only rider is the proviso
to Section 12 of the Juvenile Justice Act. The child
may not be released on bail, if there are grounds to
believe 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 release of the person would defeat the ends of
justice.
9. The JJ Act is, in fact, child friendly. The central
theme is that the child interest is supreme. Section 3 of
the JJ Act incorporates the general principles to be
followed in the administration of the Act. According to
which, “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. In fact, Section 3 sub section (v) speaks
of primary responsibility. According to it, “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”.
…………………………………………………………………………….
12.Nothing has been shown that if released the CIL
would come into contact with any known criminal or
expose him to moral, physical or psychological danger
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
22/29or his release would defeat the ends of justice.
(Emphasis supplied)
38. The High Court of Bombay in XYZ v. State
of Maharashtra, as reported in 2023 SCC OnLine Bom 2790
has held that grounds for denial of bail must be based on
material. The relevant part of judgment reads as follows:
“6.The mandate of the aforesaid provisions requires
that the CCL alleged to have committed a bailable or
non bailable offence and apprehended, shall be release
on bail with or without surety. The proviso to Section
12(1) puts an exception, where there are reasonable
grounds to believe that the release of CCL is likely to
bring him into the association with any known criminal
or exposed him to moral, physical or sociological
danger or his release would defeat the ends of justice.
It is therefore, evident that the denial of bail to the CCL
shall be for specific reasons akin to above proviso.
…………………………………………………………
9. There is nothing on record to indicate that the CCL
is likely to come in association with the known
criminals or get exposed to moral, physical or
sociological danger or his release would defeat the
ends of justice. In the wake of aforesaid circumstances
the case is made out to allow this Revision Application
and to release the CCL on bail by setting aside the
impugned order passed by the Sessions Judge, Beed.
Hence following order:”
(Emphasis supplied)
39. Hence, it is clearly found that notwithstanding
anything contained in the code of criminal procedure or any
other law for time being in force, bail to a juvenile in conflict
with law is governed by Section 12 of the J.J. Act, 2015. This
Section is equally applicable to all juveniles in conflict with law
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
23/29
without any discrimination of any nature. Even bail to a juvenile
in conflict with law of the age between 16 to 18 years, being
accused of heinous offence, is governed by Section 12 of the J.J.
Act. Moreover, under Section 12 of the J.J. Act, 2015, bail to a
juvenile is a rule and the refusal of the same is an exception and
it can be denied only on three grounds as provided in the
proviso to Section 12(1) of the J.J. Act, 2015. It is also found
that nature and seriousness of the alleged offence is not relevant
for consideration of bail under Section 12 of the J.J. Act. “The
ends of justice” as used in the proviso to Section 12(1) of the
J.J. Act is drastically different to one as used in general criminal
jurisprudence. If the detention of the juvenile at Observation
Home or other institutions as contemplated under the J.J. Act is
helpful in protection, development and rehabilitation of the
juvenile, only then it can be said that release of the child would
defeat the ends of justice. It is also found that the denial of bail
must be reasoned. The grounds of denial must be based on
relevant facts and circumstances, as emerging from the material
on record. Social Investigation Report is one of the most
important such material. Perusal of such report is mandatory as
per Section 15 (2) of the J.J. Act, 2015. The Board/Court is
required to know not only about the offence committed by the
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
24/29
juvenile but even about the socio-economic
conditions/circumstances under which the offence was
committed, so that appropriate order in regard to the juvenile in
conflict with law could be passed with intent to reform and
rehabilitate the juvenile and reintegrate him with the mainstream
of the society.
40. Now coming to the judgment Child in Conflict
with Law Vs. State of Madhya Pradesh, 2023 SCC OnLine
MP 585 as referred to and relied upon by the learned counsel for
the informant and APP for the State is not against the aforesaid
finding of law by this Court. Madhya Pradesh High Court in this
judgment has clearly held that all decisions regarding the child
should be based on primary consideration of best interest of the
child. It has also held that seriousness of the offence can not be
a basis for denial of bail to a juvenile. It only says that
aggravated sexual assault against a girl of tender age may
expose juvenile to the danger of retribution by the society and,
hence, may expose the juvenile to the physical danger. So, I
have no dispute with such opinion of Madhya Pradesh High
Court. However, such possibility of exposure to physical danger
must be based on concrete finding as per Social Investigation
Report and otherwise and it cannot be based only on surmises
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
25/29
and conjecture. If there is concrete material in the Social
Investigation Report to show that the Juvenile may face
backless of the society, if he is released on bail, bail could be
denied to him for his protection.
41. So far as Om Prakash Case (supra) as referred
to and relied upon by learned counsel for the informant and APP
for the State is concerned, I find that this judgment has been
delivered by Hon’ble Apex Court in different context and on
distinguished facts and circumstances. This judgment was
pronounced by Hon’ble Supreme Court in the year 2012 when
an adult offender was taking plea of juvenility to get statutory
protection of J.J. Act. Hence, Hon’ble Apex Court had cautioned
by making the observations as referred to above. But Hon’ble
Apex Court has reiterated the broad objective of Juvenile Justice
Act to treat a child in conflict with law with care and sensibility
offering him a chance to reform and settle into the mainstream
of society, though it has cautioned that the J.J. Act should not
be allowed to be used as a ploy to dupe the course of justice.
Present Case
42. Coming to the case on hand, I find that the
Appellant has been found to be 17 years and 17 days old on the
date of alleged occurrence and he has been also referred to
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
26/29
Children Court for trial under Section 18 (3) of the J.J. Act,
2015 after preliminary assessment.
43. However, the Children Court has denied bail to
the Appellant stating that on account of association with bad
elements, the Appellant has committed the offence and, hence,
the atmosphere at his home would not be conducive and there
would be possibility of the Appellant coming into association
with criminals and committing another offence. He has denied
bail to the Appellant also on the basis of the heinous nature of
the alleged offence. In view of the learned Children Court, the
release of the Appellant is also likely to expose the Appellant to
moral, physical and psychological danger and defeat the ends of
justice.
44. However, after perusal of the Social
Investigation Report and the case diary, I do not find any basis
for such findings by learned Children Court in his order denying
bail to the Appellant. As a matter of fact, the findings of learned
Children Court are contrary to the Social Investigation Report. It
appears that learned Children Court has not taken pain to peruse
the Social Investigation Report before passing the impugned
order.
45. As per the Social Investigation Report, I find
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
27/29
that the Appellant belongs to a educated joint family and the
behaviour of the Appellant towards his family members is
cordial. He is also religious, having no bad habits, like,
smoking, drinking, gambling etc. He plays cricket and likes
reading books and religious activities. He is obedient to his
parents and he is a student of Ist Year of Graduation. He wants
to pursue his studies. He has also taken computer training. His
attitude towards his friends is positive and even as per the
neighbours, his conduct is good. His behaviour with them is
cordial and he has never misbehaved with them. As per the
Social Investigation Report, the Appellant has been implicated
in this case falsely on account of previous enmity and land
dispute between his family and that of the informant.
46. Hence, the findings of the Children Court
regarding grounds of denial are contrary to the material on
record. No one can say that atmosphere of the Appellant at his
home is not conducive for his development and rehabilitation.
47. There is also no proof that after release, the
appellant may go into association of criminals. Only conjecture
and surmises regarding possibility of the Appellant to go into
association of criminals would not do. The finding regarding the
criminals in whose association the juvenile may go, is required
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
28/29
to be recorded as per statutory provisions which talk about
association of known criminals. But there is no such finding, nor
is any material on record in this regard.
48. There is also no material on record to support
the finding of the Children Court that release of the Appellant to
bail would expose him to moral, physical and psychological
danger.
49. The finding of the Children Court that release
of the Appellant would defeat the ends of justice is also
misconceived. In fact, by detaining the Appellant in Observation
Home, the Children Court has disrupted the studies of the
Appellant, hampering his development and rehabilitation.
50. As such, I find that no ground is made out to
deny bail to the Appellant.
51. Even as per merit of the case, I find that the
F.I.R. has been lodged after three days of the alleged occurrence
and medico legal examination of the alleged victim does not
support the prosecution case. Though the alleged victim has
supported the prosecution case in her statement under Section
164 Cr.PC, how far the statement of the child of tender age
would be reliable, would be a big question for the Court to
consider at the stage of appreciation of evidence. Possibility of
Patna High Court CR. APP (SJ) No.2609 of 2024 dt.07-08-2025
29/29
tutoring the child would be a serious impediment in reliability of
the child witness.
52. Accordingly, the impugned order is not
sustainable in the eye of law. Hence, the appeal is allowed,
setting aside the impugned order and directing the Appellant to
be released on bail, subject to furnishing bail bond of
Rs.10,000/- by his father, who is also directed to give
undertaking by way of an affidavit that the Appellant would not
come into contact with any criminal and he will continue his
further studies. Father of the Appellant would also give
undertaking that the educational and developmental needs of the
Appellant would be taken care of by him and the Appellant
would attend the Court as and when required and directed.
(Jitendra Kumar, J.)
Shoaib/Ravi
Shankar/Chandan
AFR/NAFR AFR
CAV DATE 04.08.2025
Uploading Date 07.08.2025
Transmission Date 07.08.2025