Subhash Chand, J
1. Learned counsel for the petitioner and learned counsel for the State are present.
2. This Criminal Revision has been preferred on behalf of the petitioner against the order dated 31.03.2023 passed by the learned Special Judge, POCSO Act, Giridih in M.C.A. No.693 of 2023, Children Case No.02 of 2023, whereby the bail application of the juvenile was rejected.
3. At the very outset, learned counsel for the opposite party No.2 has raised the objection that this Criminal Revision is not maintainable against the impugned order in view of Section 101 (5) of the J.J. Act, 2015, which is reproduced hereinbelow:
“(5) Any person aggrieved by an order of the Children's Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974).”
4. The contention made by the learned counsel for the opposite party No.2 is not found tenable in view of Section 102 of the J.J. Act, 2015, which provides that either on its own motion or on an application received in this behalf, call for the record of any proceeding in which any Committee or Board or Children's Court, or Court has passed an order, for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit. Section 102 of the J.J. Act, 2015 reproduced hereinbelow:
“The High Court may, at any time, either on its own motion or on an application received in this behalf, call for the record of any proceeding in which any Committee or Board or Children's Court, or Court has passed an order, for the purpose of satis-fying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit:
Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.”
5. Taking into consideration the provision of Section 101(5) of the J.J. Act, 2015 also the word ‘may’ means that against the order passed under this Act, appeal may be preferred. It is not mandatory that every order is appealable. Simultaneously, in view of Sections 102 of the J.J. Act, 2015 this Criminal Revision is maintainable.
6. The brief facts leading to this Criminal Revision are that the FIR of Case Crime No.224 of 2022 was lodged by the mother of the victim with these allegations that her daughter 17 years old had told her over the mobile phone that on 01.09.2022 while she was going to Girls High School, Bengabad at 08:30 in the morning, in the market of Bengabad, the accused who was standing there having parked of his motorcycle, asked the daughter of the informant to drop her to the school and made her seated on the motorcycle. Thereafter, he took her to the house of his relative, where he established physical relation forcibly with the daughter of informant and he assured her to marry with her and having reached at Bajrangbali Mandir, solemnized marriage. Subsequently, the family members of the accused and the accused himself refused to marry with her, hence, this FIR was lodged against three named accused persons including the petitioner as shown in the FIR.
7. The bail application of the petitioner has been rejected by the learned Court below on the ground that the offence was heinous in nature.
8. The learned counsel for the opposite party No.2 also raised a plea that the bail application of the petitioner, which was rejected by the learned Court below cannot be governed by the Section 12 of the J.J. Act, 2015 reason being that his age being between 16-18 and it has been declared by the Board that his trial should be conducted as an adult.
9. This contention has been opposed by the learned counsel for the petitioner and contended that even if the trial of the petitioner has been declared to be conducted as an adult under Section 15 still the bail application shall be governed with the provision of Section 12 of the J.J. Act, 2015 and in support of his contention, he has relied upon the judgement passed by the Hon’ble High Court of Judicature at Patna in the case of Lalu Kumar @ Lal Babu @ Lallu Vs. State of Bihar reported in 2019 6 BLJ 216, paragraph No.178 reads as under:
“178. We, thus, sum up the references by holding as under:—
Q. (i). Under which provision of law, a child, who has completed or is above the age of 16 years and is alleged to have committed a ‘heinous offence’ can maintain his application during the pen-dency of preliminary assessment by the Board under Section 15 of the Act of 2015?
A. For the reasons recorded hereinabove, a child, who has com-pleted or is above the age of 16 years and is alleged to have com-mitted a ‘heinous offence’ can maintain his application for release on bail under Section 12 of the Act of 2015 during the pendency of preliminary assessment by the Board under Section 15 of the Act of 2015.
Q. (ii). Under which provision of law, a child, who has completed or is above the age of 16 years and is alleged to have committed a ‘heinous offence’ can maintain his application for release on bail after the transfer of his case to the Children's Court for trial by the Board?
A. For the reasons recorded hereinabove, a child, who has com-pleted or is above the age of 16 years and is alleged to have com-mitted a ‘heinous offence’ can maintain his application for release on bail under Section 12 of the Act of 2015 after the transfer of his case to the Children's Court.
………………….”
10. Section 2(12) of the J.J. Act, 2015 defines ‘child’ means a person, who has not completed the 18 years of age. The ‘child in conflict’ with law is defined under Section 2(13), which means a child who is alleged or found to have committed an offence, who has not completed the age of 18 years on the date of commission of such offence.
11. Since the Act of 2015 is a Special Act, which contains provision for, the same shall prevail over the provisions of Cr.P.C. From the close reading of Section 12 of the J.J. Act, 2015, it is the only provision under this Act which deals with grant of bail to child in conflict with law. It does not debar a child, who has completed or is above 16 years and is alleged to have committed a ‘heinous offence’ from maintaining his application for release on bail during pendency of preliminary assessment by Board under Section 15 of the J.J. Act, 2015 or from maintaining an application for release on bail after transfer of case to Children’s Court for trial.
12. Palpably, the petitioner comes within the definition of ‘child’ and ‘child in conflict with law’. Therefore, the bail application of the petitioner shall be governed by Section 12 of the J.J. Act, 2015.
13. It is settled law that the bail application of a juvenile should ordinarily be allowed, except the circumstances as laid down under the proviso of Section 12 of the J.J. Act, 2015. In view of the Social Investigation Report, none of the ground is shown against the CCL as under the proviso of Section 12 of the J.J. Act, 2015.
14. Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as under:
“12. (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 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 of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under sub-section
(1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.
(4) When a child in conflict with law is unable to 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.”
15. So far as the allegations made in the FIR are concerned, as per the FIR allegations, the occurrence is of 01.09.2022 and the FIR of the same was lodged on 25.09.2022 though the explanation of the same is given in the FIR itself being lodged belated. The allegations are also supported with the statement of victim in view of paragraph No.14 of the case diary; but the same is not corroborated with the medical evidence. In view of paragraph No.69 of the case diary, the victim was medically examined and no definite opinion was given in regard to the same.
16. So far as the Social Investigation Report of the CCL is concerned, from perusal of the same, it is found that there is nothing adverse against the CCL.
17. In view of the submissions made and the materials on record, nothing is on record to show that the release of the petitioner on bail would expose him to physical, psychological or moral danger or defeat the ends of justice. As such, the impugned order passed by the learned Court below, whereby the bail application of the CCL has been rejected on the sole ground of gravity of the offence the same needs interference.
18. Accordingly, the instant Criminal Revision is hereby allowed. The impugned order passed by the learned Court below is set aside.
19. In consequence thereof, the petitioner-CCL is directed to be released on bail on furnishing bail bond of Rs.25,000/-(Rupees Twenty Five Thousand) with two sureties of the like amount on behalf of his guardian (maternal uncle) to the satisfaction of the court concerned. The guardian of the CCL (maternal uncle) would also give undertaking that he would keep his vigil eyes upon him and will restrain him from coming in association of the known criminals.
