1

Section 12,
JJ Act, 2021
BAIL TO CHILDREN IN CONFLICT WITH LAW

Justice Jaishree Thakur

Punjab and Haryana High Court
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Table of Contents

TABLE OF CASES ................................................................................. 3

INTRODUCTION ................................................................................... 4
ISSUES PROPOSED .............................................................................. 5
ISSUES DISCUSSED IN DETAIL ........................................................ 6
1 : Is CCL to apply for anticipatory bail under JJ Act or under the
provisions of Cr. P.C. ?........................................................................... 6
2 : Whether a CCL is to be allowed bail in case he is being tried as an
adult and involved in a heinous crime? What will be the parameter for
consideration by the Board /Children’s Court? ...................................... 7
3 : Juvenile being tried as an adult would file his regular bail
application under section 12 of Act? .................................................... 16
4 : Default Bail in case challan not presented in time .......................... 18
5 : Whether bail is to be allowed to a juvenile in relation to an offence
u/s 37 of the NDPS Act?....................................................................... 19
CONCLUSION ...................................................................................... 21
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TABLE OF CASES

1. Piyush minor through his natural v. State Of Haryana, CRM-M-21406-2021 ............... 6

2. Krishan Kumar through his Mother v. State of Haryana, CRM-M-19907 of 2020 ...... 6

3. Jatin v. State of Haryana, CRM-M-No 17856 of 2020 ............................................... 6

4. Shani v. State of U. P., SLP (Crl.) No. 6132/2021, Date of Order- 26.08.2021 ............... 7

5. Abhishek Kumar Yadav v. State of U. P., CRR NO. 1221 of 2019................................ 7

6. Akash Alias Nirmal Mishra v. State of U. P., CRR NO. 1944 of 2019 .......................... 8

7. Sonu (Minor) v. State of U. P., CRR NO. 2808 of 2019 ............................................. 8

8. Santosh v. State of U. P., CRA NO. 5814 of 2018 ..................................................... 9

9. Monu v. State of U. P., CRR NO. 2036 OF 2017....................................................... 9

10. Radhika v. State of U. P., CRA NO. 4418 OF 2019 ....................................... 10,16,17

11. Sunil (Juvenile) v. State of M. P., CRR NO. 853 OF 2021 ........................................ 11

12. Master Abhishek (minor) v. State, CRR NO. 600 OF 2004, 2005 VI AD Delhi 18 ........ 12
13. Dev Vrat (Minor) v. State (Government of N.C.T. of Delhi), CRR NO. 588 of 2006, 2006
(11) RCR (Criminal) 849..................................................................................... 12

14. Shimil Kumar v. State of Haryana, CRR NO. 303 OF 2013, Date of Order- 29.1.2013 .. 13

15. Master Bholu v. State of Haryana, 2020 (3) RCR (Criminal) 160 .............................. 13

16. Vishvas v. State of Punjab, 2021 (2) R.C.R ( Criminal) 207 ................................. 15,17

17. Vicky v. State Of UT, CRM-M-21388 of 2020 ........................................................ 16

18. CCL ‘A’ v. State (NCT of Delhi), BA 2510/2020 ..................................................... 16

19. Vishwas v. State of Punjab, CRR NO. 53 OF 2021 .................................................. 17

20. Abhishek Kumar Yadav v. State of U. P., CRR NO. 1221 of 2019.............................. 17

21. Union of India through C.B.I. v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav ... 18

22. Gurbaj Singh alias Baja v. State of Haryana, (P&H): Law Finder Doc Id # 129203 ..... 19

23. Harpreet Singh @ Happy v. State Of Punjab, CRM-M-26288-2020 .......................... 19

24. Anamul Haque v. The Union Of India, CRIMINAL APPEAL (SJ) No.84 of 2020 ....... 19

25. Joyal S Johny v. State of Kerala, 2019 SCC online Kerela 3712 ................................ 19

26. Lokesh Chaudhry v. State Of Rajasthan, CRR 354 of 2018....................................... 19

27. Parveen Kumar Maurya v. State of UP, CRR 2992 of 2020 ...................................... 19
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INTRODUCTION

India has a rough population of 472 million children i.e. about 39% of its total population. The
definition of a Child under the JJ Act of 2015 would mean a person who has not completed
eighteen years of age and the same would be applied to term ‘Juvenile’. ‘Child In Conflict With
Law’ and a ‘Juvenile’ are two terms which have been used interchangeably in the JJ Act of 2015.

The JJ Act is a composite code for dealing with Children Who Are In Conflict With Law. The
age of criminal responsibility, is the age below which a child is deemed incapable of having
committed a criminal offence. It is also called the defence of infancy. It is interesting to note that
minimum age of criminal responsibility, i.e. MACR varies from country to country.

Australia: The statutory minimum age of criminal responsibility is 10 years, whereas there is a
rebuttal presumption that a child between the age of 10-14 is capable of committing a crime. The
maximum sentence can range from 2-7 years.
England: The statutory minimum age of criminal responsibility is 10 years whereas a person
who is 18 years will be tried as an adult. The maximum sentence is 2 years.
Germany: The statutory minimum age of criminal responsibility is 14 years whereas a person
who is 18 years will be tried as an adult. The maximum sentence is 10 years.
USA: The statutory minimum age of criminal responsibility is 6-12 for 13 states. 37 states have
no set of minimum age. The maximum sentence could be for life.

The vexing questions are:

1. FIRSTLY is he to apply for anticipatory bail under JJ Act or
under the provisions of Cr. P.C?
2. SECONDLY Whether a CCL is to be allowed bail in case he is
being tried as an adult and involved in a heinous crime? What will
be the parameter for consideration by the Board /Children’s
Court
3. THIRDLY is he to apply for regular bail under JJ Act or under
the provisions of Cr. P.C?
4. FOURTHLY is he to be allowed bail under the default section of
167(2) Cr.P.C. if bail rejected under section 12 JJ Act?
5. Lastly is he to be allowed bail in case he is involved Under the
NDPS Act?

Section 12 of the Act itself is a complete answer:

In a nutshell section 12 stipulates that bail shall be allowed to a CCL notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the
time being in force, he is to be released on bail with or without surety [or placed under the
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supervision of a Probation Officer or under the care of any fit institution of fit person]: but he
shall not be so released if there appear 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 the ends of justice.
It can be clarified in simpler terms that bail shall be the normal rule; the courts are not to be
guided by the provisions of Criminal Procedure Code however, the only reasons for denying bail
are:
i. If there appears to be reasonable grounds for believing that the release is likely
to bring him into association with any known criminal.
ii. Expose him to moral, physical or psychological danger.
iii. Defeat the ends of justice.
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ISSUES DISCUSSED IN DETAIL

1 : IS CCL TO APPLY FOR ANTICIPATORY BAIL UNDER JJ ACT OR

UNDER THE PROVISIONS OF CR. P.C?

There are divergent views regarding grant of pre-arrest bail to a CCL especially in view of the
fact that the act itself does not use the term ‘arrest’. The word used is ‘apprehend’.

Our High court in Piyush minor through his natural v. State Of Haryana in CRM-M-21406-
2021 has held that pre-arrest bail was not available to a juvenile under the JJ Act as a child
delinquent, on being apprehended, is immediately produced before a juvenile justice board which
inevitably has to grant bail, unless exceptional circumstances exist in not granting one. The
reasoning is that the Legislature has empowered the police simply to apprehend a child in
conflict with law and immediately, without any delay, cause his production before the Juvenile
Justice Board. The proviso to Section 10 of the Act makes it very clear that in no case a child
alleged to be in conflict with law shall be placed in a police lock-up or lodged in a jail.

Whereas in the matter of (Krishan Kumar through his Mother v. State of Haryana) the High
court has held that just because the Juvenile Justice (Care and Protection of Children) Act, 2015
(JJ Act) was silent on the aspect of pre-arrest bail, it could not be assumed that anticipatory bail
could not be granted to juvenile persons in conflict with law. The Judge further reasoned, "It
could certainly be not the intention of the legislature that such juvenile should be first
apprehended and then produced before Juvenile Justice Board, in the process denying relief to
a juvenile, which is available to the other persons, who are accused of heinous offences."
There have been conflicting views in this regard by various courts. The Rajasthan and Allahabad
High Courts have allowed pleas moved by juveniles, holding that the JJ Act does not bar such a
plea. Conversely, three judgments of the Madhya Pradesh High Court have rejected juvenile
anticipatory bail applications.
The matter now stands referred to a DB in the matter of Jatin vs. State of Haryana CRM-
M-No 17856 of 2020.
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2 : WHETHER A CCL IS TO BE ALLOWED BAIL IN CASE HE IS BEING

TRIED AS AN ADULT AND INVOLVED IN A HEINOUS CRIME? WHAT
WILL BE THE PARAMETER FOR CONSIDERATION BY THE BOARD
/CHILDREN’S COURT?

Judicial Viewpoint-

There are divergent ways of dealing with a child in conflict with law and for a comparative study
– apart from Punjab & Haryana High Court ,we are taking up various judgements of 3 other
High Courts- Allahabad HC, Madhya Pradesh HC & Delhi HC, which are judicially active
as far as dealing with juveniles is concerned.
Supreme Court has recently declined bail to a 16 year old accused of the offense of rape. Stating
that statement of the victim had yet not been recorded in Shani v. State of U. P., SLP (Crl.) No.
6132/2021, Date of Order- 26.08.2021, Coram- Hon’ble CJI NV Ramana and Hon’ble Justice
Surya Kant.

Age of CICL – Above 16 years.

Offence - U/S. 376, 323, 506 I.P.C. and Section 3/4 POCSO.
Facts of the Case – FIR was lodged by Father (Informant) of the victim who had returned home
late at night only to find out accused committing rape on her minor daughter. When the
informant went to make complaint about this to the house of the accused, he and his wife were
beaten up and threat was also given to kill them. The accused is languishing in jail since
06.08.2020. Victim is less than 16 years of age.
Bail –Denied. SLP disposed of.
Reasons- “We are not inclined to grant bail to the petitioner at this stage taking into
consideration the nature and gravity of the allegations. The Petitioner may renew his prayer for
bail before this Court after the Statement of the victim is recorded by the Trial Court.”

ALLAHABAD HIGH COURT

1. Abhishek Kumar Yadav v. State of U. P., CRR NO. 1221 of 2019, Date of Order-
21.9.2020, Hon’ble Justice J. J. Munir.

Age of CICL - 17 Years, 9 months, 19 days

Offence - U/S. 147, 149, 302, 323, 353, 307/34 IPC
Facts of the Case – All accused armed with iron rods and pipes, with a common intention to do
the informant’s brother to death, surrounded the victim on all sides and assaulted him. The
victim was cornered and battered to death by the accused, employing the iron rods and pipes,
while other victims were injured grievously and assaulted badly.
Bail - Rejected. Revision dismissed.
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Reasons –
(i) “Defeat the ends of justice” employed in the proviso to section 12(1) of the Act, is not a
word of art. It is to be associated with the ground realities of dispensing justice in cases where
the offender is a child in conflict with the law, bearing in mind the object of the Act. The statute
is no doubt enacted to safeguard the interests of young offenders, who are yet not adults. Still,
the legislature has been conscious of the fact that the society too has to be protected against the
depredations of juvenile offenders whose misdirected and abounding enthusiasm, replete with
energy, enters a wrong channel or pursuit and threatens society.
(ii) Where the statute disentitles a child in conflict with law to bail on the ground that his
release would lead to ends of justice being defeated, it requires the Court to take into
consideration different factors. One of them is certainly the gravity of the offence. The other is
its impact on society or the locale where it is committed.
(iii) To illustrate, if the juvenile perpetrator of a gruesome rape or murder is allowed to walk
free the day following he commits the offence, the shock it would administer to the society’s
conscience and the feeling of unrequited justice, it would leave behind, lingering in the minds of
the aggrieved or the bereaved family, would certainly lead to ends of justice being defeated.
(iv) That it is a case of a double murder committed brazenly without any fear of the authority
of law and in association with a number of other accused, whose figure is indicted to be eleven,
nominated. The manner of perpetration of the offence is gruesome. The determination of each of
the offenders is so abiding that it has led to two lives being extinguished, one after the other, in
the same transaction of crime. Prima facie the two murders were not the end of it, as the two
surviving victims were also battered and inflicted with grievous injuries. In a crime like this, if
the revisionist were allowed to walk free because he is short by two months and an odd number
of days of his eighteenth birthday, the ends of justice, in the opinion of this Court, would most
certainly be defeated.

2. Akash Alias Nirmal Mishrav.State of U. P., CRR NO. 1944 of 2019

Age of CICL - 14 Years, 3 months, 15 days

Offence - U/S. 376 IPC & S. 3, 4 POCSO
Facts of the Case - Ravished a young prosecutrix aged 6 years.
Bail - Rejected. Revision dismissed.

Reasons - Gravity of charge, manner, circumstances etc. impact society at large. These factors
relevant under last clause of Proviso to S. 12 (1).The Revisionist has put the society on alarm.

3. Sonu (Minor) v. State of U. P., CRR NO. 2808 of 2019

Age of CICL - Above 16 years of age

Offence - U/S. 376 IPC & S. 6 POCSO
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Facts of the Case - Ravished the prosecutrix aged 10 years.

Bail - Rejected. Reference made to the SC Judgment in Om Prakash v. State of Rajasthan.

Revision dismissed.

Reasons - The gravity and the heinous nature of the offence become relevant while judging
the entitlement of a Juvenile to bail under the last of 3 disentitling categories of S. 12 (1) Proviso.

4. Santosh v. State of U. P., CRA NO. 5814 of 2018

Age of CICL - More than 16 years of age

Offence - U/S. 302, 307, 452 r. w. 34 IPC
Facts of the Case - All accused persons of same family were implicated including the Juvenile,
who was assigned with ‘lathi’ and it was inferred that any injury must have been caused by
‘lathi’.
Bail - Granted. Appeal allowed.

Reasons - The order of Children Court rejected the bail only on the basis that offence was very
serious and the juvenile was in association with his father and uncle in the commission like
murder. The said view cannot be ground for refusing bail to a juvenile.

5. Monu v. State of U. P., CRR NO. 2036 OF 2017

Age of CICL - About 16 years of age

Offence - U/S. 363, 323, 376 IPC & S. 5, 6 POCSO
Facts of the Case - Two accused applicants Monu &Vikas kidnapped a minor girl, taken away
on a motor cycle by force towards the jungle, where Revisionist committed rape on her.
Bail - Rejected. Revision dismissed.

Reasons –
(i) Merely by a declaration of being juvenile does not entitle a juvenile to be released on
bail as a matter of right.
(ii) Statutory protection of JJ Act is meant for minors who are innocent law breakers and
not accused of matured mind who use the plea of minority as a ploy of shield to protect himself
from the sentence.
(iii) Juvenile being about 16 years old was conscious of his criminal activity and it cannot
be treated as an act which can be dubbed as a child’s mistake committed during youth.
(iv) It is not in the interest of justice to release him on bail.
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6. a. Radhika v. State of U. P., CRA NO. 4418 OF 2019

Age of CICL – Above 16 years of age.

Offence – U/S. 498A, 304 IPC.
Facts of the Case – Bride Burning (Dowry Death)
b. Appeal No. 4420 of 2019- Himanshu @ Dabbu
Age of CICL – 17 years, 9 months, 16 days
Offence – U/S. 394, 411 IPC
Facts of the Case – Robbery
c. Appeal No. 4467 of 2019 – Raju @ Raj Kumar
Age of CICL – 17 years, 7 months, 8 days
Offence – U/S. 147, 302, 201, 34 IPC
Facts of the Case – Murder
d. Appeal No. 2702 of 2019 – Aqil
Age of CICL – 16 years, 3 months, 8 days
Offence – U/S. 376D IPC & S. 5, 6 POCSO
Facts of the Case – Gang Rape
e. Appeal No. 4518 of 2019 – Aman
Age of CICL – 16 years, 10 months, 4 days
Offence – U/S. 377, 506 IPC
Facts of the Case – Sodomy committed on a victim of 10 years of age.
f. CRM BA No. 38818 of 2018 – Prince @ AdityaTiwari
Age of CICL – 17 years, 2 months, 19 days
Offence – U/S. 147, 148, 302, 354, 506 IPC
Facts of the Case – Murdering a young girl in a fit of infatuation with the deceased girl

In all the above mentioned appeals/petitions, bail was not granted. The following question
was raised for consideration –
Q: While deciding the application of a juvenile between 16-18 years of age, whether the
seriousness, gravity of the offence and their respective role in the commission of crime, would
also be a determinable factor while releasing them on the proceedings opted by them?
Held :
(i) The object of the legislation and Para 4 of the Statement of Object and reasons clearly
mandates that the JJ Act, 2000 was ill-equipped to tackle child offenders between 16-18 years of
age involved in heinous offences and to resolve this impasse, the court holds that for the purpose
of bail to the adolescent offender between 16-18 years, involved in the heinous offences like
murder, gang rape, bride burning, etc., the beneficial legislation for the purpose of bail under S.
12 of the Act shall not apply in its present shape and format.
(ii) It would be no more as a matter of right to such delinquent minor, who is involved
in heinous offences.
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(iii) While deciding bail of such delinquent offender ranging between 16-18 years would
be discretionary upon the court, which shall also take into account with regard to his
mental, physical capacity, ability to understand the gravity of the heinous offence.
(iv) All these factors are determinative factors while adjudicating the bail applications of
juveniles of 16-18 years. Else it would be mockery of legislation.

MADHYA PRADESH HIGH COURT

1. Sunil ( Juvenile) v. State of M. P., CRR NO. 853 OF 2021, Date of Order – 25.6.2021,
Hon’ble Justice Subodh Abhyankar

Age of CICL - About 15 years of age

Offence - U/S. 342, 376 (2) (n), 506, 376 (a) (b) IPC & S. 5, 6 POCSO
Facts of the Case - Committed a rape of minor girl aged around 10-11 years whereby she was
left bleeding for a prolonged period of time.
Bail - No Bail. Petition dismissed.

Reasons –
(i) The Court does not find it to be a fit case to exercise its discretion to release the petitioner
on bail. The petitioner, though aged 15 years only, has committed a heinous offence of rape on a
minor girl aged around 10 years and 4 months, which left her bleeding so profusely that her
blood transfusion was also required and as per her statement, the petitioner also committed the
same act around 3 days ago as well.
(ii) The conduct of the petitioner clearly reveals that he committed the aforesaid offence
with full consciousness and it cannot be said that it was committed in ignorance. This Court
is unable to agree with the observation made by the Probationary Officer that an offence of rape
can be committed due to ignorance. An offence of rape, being carnal in nature, cannot be
committed unless a person has the specific knowledge of the same.
(iii) In the considered opinion of this Court, if the petitioner is again left to the care of his
parents, considering their earlier negligence to harness him, it cannot be said that the girls of
tender age around him would be safe and secure especially when he is enjoying the protection of
Juvenile Justice Act. Thus, his release, in the considered opinion of this court, would defeat the
ends of justice.
(iv) As a result, the petitions being devoid of merits are hereby dismissed.

The Hon’ble Court made the following observation in para 14 of this judgment-

“14. As a parting note, this Court is also at pains to observe that the Legislature
has still not learnt any lesson from the case of Nirbhaya which is reported as
(2017) 6 SCC 1 (Mukesh v. State NCT of Delhi) as the age of a child is still kept
below 16 years in heinous offences under s.15 of the Act of 2015 giving a free
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hand to the delinquents under the age of 16 years to commit heinous offences.
Thus, apparently, despite committing a heinous offence, the petitioner would be
tried as a juvenile only, because he is less than 16 years old as provided under
Section 15 Act of 2015. Apparently, the present law to deal with such cases is
totally inadequate and ill equipped and this Court really wonders as to how
many more Nirbhayas’ sacrifice would be required to shake the conscious of
the lawmakers of this Country.”

DELHI HIGH COURT

Delhi High court has been taking a lenient view in dealing with Juveniles who are in conflict
with law. The reasoning is that it is a beneficial legislature .In this regard the rational is that the
term ends of justice have to be construed within the context of the JJ ACT. The purpose of the
Act is to meet the need and care and protection of children and to cater to their development.

1. Master Abhishek (minor) v. State, CRR NO. 600 OF 2004, 2005 VI AD Delhi 18.
Age of CICL – Juvenile

Offence - U/S. 323, 302, 34 IPC

Facts of the Case - The Juvenile Justice Board rejected the application for bail on the
observation that the juvenile was of impulsive nature. Further, it was observed that the manner in
which the juvenile committed the crime shows his aggressive behaviour as well as tendencies to
harm others and that the fact that the person assaulted only with his fist and arms died shows his
brutal mental make-up. The Juvenile Justice Board observed that in these circumstances it would
not be in the interest of justice to admit the juvenile to bail.
HC allowed Bail

Reasons - What can be said to be the factors to determine what will defeat the ends of justice
have to be located in the context of the purpose of the Act. The purpose of the Act is to meet the
need of care and protection of children and to cater to their development needs. This can be
done by adopting a child friendly approach in the adjudication and disposition of matters in the
best interest of children and for their ultimate rehabilitation. Therefore if there is a factor which
requires the Court to keep the child in custody for meeting the developmental needs of the child
or for his rehabilitation, or for his care and protection then only it can be said that his release
would defeat the ends of justice.

2. Dev Vrat (Minor) v. State (Government of N.C.T. of Delhi), CRR NO. 588 of 2006,
2006 (11) RCR (Criminal) 849

Age of CICL - Declared Juvenile.

Offence - Heinous in nature, the age of victim 2 years only.
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Facts of the Case – JJB declined the petitioner’s application for bail. The Additional Sessions
Judge also dismissed the bail observing that the offence is quite heinous in nature; the age of
victim is quite tender being 2 years only. That it would not be in the interest of justice to release
the delinquent on bail.
Bail – Granted.

Reasons - The phrase “would defeat the ends of justice” cannot be stretched to bring into its
ambit the gravity of the offence or the interest of the victim. The finding recorded in the
impugned order is based on the nature of the offence as well as the release of the petitioner not
being in the interest of justice. There is a difference between the expressions in the ‘interest of
justice’ and ‘defeat of the ends of justice’. The factors determining as to what amounts to defeat
of ends of justice must be construed in the context of purpose of the Act. (Referred: Master
Abhishek (minor) v. State)

HIGH COURT OF PUNJAB AND HARYANA

1. Our own High Court in the matter of Shimil Kumar v. State of Haryana, CRR NO. 303
OF 2013, Date of Order- 29.1.2013 has held that the CIL can be released after the Juvenile
Justice Board and the court concerned have addressed the afore-expressed concern which can be
achieved by involving a professional psychologist/psychiatrist and sociologists, the Board can
then proceed to determine the second aspect as to whether to release a juvenile on bail which
would now be dependent upon the first question because if a person is found capable of
comprehending what is right and wrong, and is enabled to understand sufficiently his actions,
then as an automatic corollary it should follow that release of such a person on bail would defeat
the ends of justice and the remaining aspects of the likelihood of a child coming into contact with
any known criminal or exposing him to moral, physical or psychological danger, would be
questions dependent solely on factors and inferences which such facts may throw up.

2. Master Bholu v. State of Haryana, 2020 (3) RCR (Criminal) 160

Age of CICL - Above 16 years of age

Offence –Murder of a 7 year old child.
Facts of the Case –
(i) Two cuts were given to the deceased with the aid of sharp edged weapon which was the
only and ultimate cause of death of a 7 year old. Moreover, the applicant and deceased were
otherwise known to each other on account of attending music classes together as such; it was
easier for applicant to take deceased to the boys-toilet.
(ii) That the applicant did not intent to appear in the exams; he was carrying knife in his bag
on alleged day of incident and convinced the deceased to accompany him to bathroom as they
were known to each other which in turn sufficiently show that the applicant had come prepared
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from the home carrying a sharp edged weapon with a plan to murder which was finally executed
by committing a murder of seven years child.
(iii) That on many several previous occasions, the applicant had discussed the thought of
giving poison to children of the school so as to postpone/defer the exams and/or parent teachers
meeting.
Bail - Not granted. Bail application dismissed.

Reasons –
(i) The investigation conducted by CBI revealed that Bholu made internet searches about
poisoning, various poisons, their effects and their sources. He also searched various sites on
internet on 19.09.2017 for “How to wipe out fingerprints from the scene of crime.”
(ii) The aforesaid search/access of internet, before and after the commission of murder for the
above mentioned purpose throws light on Bholu's conduct before the commission of Crime, his
intention to commit the crime and his conduct after the commission of crime, to escape from the
clutches of law.

Reasons for not granting bail mentioned in Para 33 of the Judgment-

(a) Though it is well settled principle of law that an application for bail filed
by a person who is above of 16 years of age and is alleged to have committed a
heinous crime as per Section 2(33) of the Act, pending preliminary assessment by
the Board, can be allowed however, this Court is not inclined to grant any relief
to the petitioner, in view of the order dated 28.02.2019 passed by the Hon'ble
Supreme Court, directing that for deciding the bail application, the petitioner be
treated as an "Adult", therefore, there is little scope for this Court to find out
whether the petitioner can be granted the relief under Section 12 of the Act.
(b) The Board and the Appellate Court have passed a detailed order declining
the concession of bail to the petitioner in view of the proviso to Section 12(1) of
the Act and this Court find no reason to form a different opinion.
(c) The arguments raised by learned senior counsel for the petitioner that the
petitioner is not kept in a congenial atmosphere at Children's Home and is facing
medical problem, are not proved from the two reports of the Medical Board
stating that the petitioner is not facing any serious problem/illness and rather it is
noticed that the petitioner is gaining weight.
(d) The delay in disposal of the trial on account of the pendency of
bail/revision/SLP before the Higher Courts, wherein status quo has been ordered
on 19.11.2018, cannot be taken as a ground to grant the concession of bail to the
petitioner.
(e) The prosecution has cited certain witnesses, who are minors including the
sister of the deceased and therefore, possibility of tampering the evidence, cannot
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be ruled out, at this stage in view of the totality of circumstances and the affidavit
filed by the CBI.

Judgements rendered in two other cases one of which is Vishvas v. State of Punjab 2021 (2)
R.C.R (Criminal) 207 have been more lenient in allowing bail. The reasoning to allow bail was
keeping in mind that the intent of the legislature which was beneficial with an intention to ensure
that a child in conflict with law could be rehabilitated. This view was also taken keeping in mind
that the SIR itself did not mention anything about whether if released he would either go back to
the same society, be exposed to any moral danger or even physical danger. Well worth to
mention that Denial of bail by the JJ BOARDS and the Children’s Court are being passed in a
mechanical manner.
1. Sandeep @ Sipi v. State of Punjab (P&H): 2016 (3) R.C.R (Criminal) 776.
2. Amritpal Singh @ Nikku v. State of Punjab: 2020 (4) R.C.R ( Criminal) 854.
3. Sahil v. State of Haryana: 2021 (3) R.C.R ( Criminal)156.
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3 : JUVENILE BEING TRIED AS AN ADULT WOULD FILE HIS

REGULAR BAIL APPLICATION UNDER SECTION 12 OF ACT?

1. Vicky v. State Of UT: CRM-M-21388 of 2020

The Punjab and Haryana High Court dealt with the issue whether a child in Conflict With Law,
who is being tried as an adult for the purpose of trial under Section 18(3) of the J.J. Act, could
maintain an application for grant of regular bail under Section 12 of the J.J. Act or under Section
439 Cr.P.C. before the Children’s Court;
After dealing with the various provisions of the Act and noting that the provisions of
Cr.P.C. would not be applicable in dealing with a Child in Conflict with Law, who has
been apprehended or detained for having committed an offence by virtue of Section 1(4)
of the J.J. Act. It was held that an application for grant of bail to a Child apprehended or
detained by the police will be entertained by the J.J. Board under Section 12 of the J.J.
Act and an application under Section 439 Cr.P.C. before the Children’s Court will not be
maintainable.

2. Radhika v. State Of UP: Allahabad High Court

In the instant appeals, after getting their respective bail applications rejected by Special Judge
(POCSO Act), the appellants straightway approached the High Court under section 101(5) of the
Act. It was held:
“Thus, the scheme of the Act of 2015 for consideration of bail application of
delinquent juvenile clearly lays down a particular procedure and there cannot be
any justification for its deviation. In all the appeals before consideration, after
being declared juvenile, by the Board, the delinquent offenders applied for
regular bail before Special Judge(POCSO Act) acting as Children Court, who
rejected their respective bail applications and after that all, the appellants moved
the appeals before this Court U/s 101(5) of the Act, which is clearly violates the
scheme of the Act and cannot be sustained.”

All accused were directed to approach the JJ Board.

3. CCL ‘A’ v. State (NCT of Delhi), BA 2510/2020

CCL aged 17 years

Offense u/s 302.
Q: Does a child sent up for trial as an adult de jure become an adult?
Q: Bail to juvenile vis-à-vis S. 482 Cr.P.C.?
Q: Whether an application for grant of bail under S. 437, 439 Cr.P.C. would be maintainable in
case of a juvenile?
 17

Answer:
i) even when a child is sent-up for trial as an adult before a Children's Court, the child
does not become an adult or 'major', but is only to be treated differently considering the heinous
nature of the offence alleged and consequent need for a stricter treatment of the offender, though
still as a juvenile in conflict with law.
ii) Section 482 Cr.P.C. has no application to the matter of grant or denial of bail to a
juvenile, since there are specific provisions contained in section 12 of the JJ Act, the powers
under which section are also available to the High Court;
iii) Section 439 Cr.P.C. has no application to the issue of grant or denial of bail to a juvenile
since, again, a juvenile is to be dealt with by a special statute, namely the JJ Act, which contains
a specific provision for bail, namely section 12 of the JJ Act;
iv) If a juvenile has been denied bail by the JJB and/or the Children's Court, it is available
for the juvenile to file an application before the High Court under section 12 of the JJ Act
seeking bail;
v) A bail plea filed on behalf of a juvenile must always and only be considered on the
criteria and parameters set-out in section 12 of the JJ Act, and the general principles for grant
or denial of bail under section 437 or section 439 Cr.P.C. have no application in such a case.

Social Investigation Report is a must while considered bail of a CICL-

1. Vishwas v. State of Punjab, CRR NO. 53 OF 2021, Date of Decision- 8.2.2021, Hon’ble
Justice Jaishree Thakur.
Age of CICL - 15 years of age
Offence - U/S. 307, 376, 457, 511 IPC
Bail – Granted. Revision Petition allowed.
Reasons –
(i) Order declining bail was passed by JJB in a mechanical manner, wholly influenced with
the gravity of the offence.
(ii) NO Material on record to satisfy the conditions of Proviso to S. 12 is necessary.
(iii) Social Investigation Report is vital.
There can be no mechanical denial of bail by citing that the juvenile would be a threat to society,
and hence would “defeat the ends of justice”. Social Investigation Report is a must while dealing
with a bail application of a CICL.
2. In this regard, we have Allahabad High Court’s Judgment in Abhishek Kumar Yadav v.
State of U. P., CRR NO. 1221 of 2019.
Where the Para 14 of the Judgment talks about examination of a SIR –
“A reading of Social Investigation Report also leaves an impression on the court’s mind that the
revisionist maybe dis-entitled on the two grounds, as well. The learned Additional Sessions has
examined that Report and concluded against the revisionist. This court is inclined to agree with
the learned Additional Sessions Judge.”
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4 : DEFAULT BAIL IN CASE CHALLAN NOT PRESENTED IN TIME

Matter came up for consideration in the matter of Master Bholu and it was held that the Juvenile
would have a right to default bail. This view is consistent with the various rulings of the Supreme
Court that it is a fundamental right enshrined under Article 21 of the Constitution of India for an
accused to be allowed default bail in case the prosecution has not filed a Challan within the
specified period (Union of India through C.B.I. v. NiralaYadav @ Raja Ram Yadav @
Deepak Yadav).
 19

5 : WHETHER BAIL IS TO BE ALLOWED TO A JUVENILE IN

RELATION TO AN OFFENCE UNDER SECTION 37 OF THE NDPS ACT?

37. Offences to be cognizable and non-bailable.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
1974)—
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences under section 19 or section
24 or section 27A and also for offences involving commercial quantity] shall be released
on bail or on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application
for such release, and
(ii) Where the Public Prosecutor opposes the application, the court is satisfied that
there are reasonable grounds for believing that he is not guilty of such offence and
that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in
addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force, on granting of bail.

Gurbaj Singh alias Baja v. State of Haryana, (P&H): Law Finder Doc Id # 129203

Harpreet Singh @ Happy v. State Of Punjab, CRM-M-26288-2020 allowed bail to a juvenile

held under the NDPS Act. Primarily on the fact that the rigors of Section 37(1)(b) of the NDPS
Act are not applicable qua the petitioner as Section 12 of the JJ Act overrides the same. Similar
view has been taken by the High Court at Patna in Anamul Haque vs. The Union Of India:
CRIMINAL APPEAL (SJ) No.84 of 2020.

Joyal S Johny v. State of Kerala, 2019 SCC online Kerela 3712 has allowed default bail under
section 167(2) Cr.P.C. but with stringent provisions and giving liberty for the State to apply for
cancellation incase he is found indulging in similar activities.
Lokesh Chaudhry v. State Of Rajasthan, CRR 354 of 2018 has allowed bail in the case of a
Juvenile involved in an NDPS matter. Reliance has been place on a judgment of Parveen Kumar
Maurya v. State of UP CRR 2992 of 2020.

Juvenile Justice Act, 2015 and NDPS Act, 1985 are Central legislations and both have been
enacted by the Parliament as Special Laws dealing with particular objects. The NDPS Act, is a
penal statute enacted for prohibition, control and regulation of Narcotic Drugs and Psychotropic
Substances whereas, the Juvenile Justice Act, inter alia deals with those children alleged and
found to be in conflict with law. The Juvenile Justice Act lays down the procedure as to how the
children who are in conflict with law shall be dealt with: in the matter of apprehension,
detention, prosecution etc. Section 12 of the Juvenile Justice Act, deals with the provisions for
 20

grant of bail regarding the child in conflict with law. The non-obstante clause contained in
Section 12 not only confers a special status over the Code of Criminal Procedure, 1973, but also
over any other law for the time being in force. It is also well settled that when there is a conflict
between two enactments the latter will prevail.
 21

CONCLUSION

Our research at the moment has not come forth with any precedent which categorically states
that a CICL charged with offences under S. 302/376 IPC is compulsorily not to be given bail.
Merely because a child is involved in a heinous crime, surrounding factors have to be taken into
account as well, before deciding the bail application of a CCL, apart from those 3 conditions
specified in Proviso to S. 12 (1) of the Act. Such factors could be well seen in a Social
Investigation Report. Otherwise, mechanical approach in this regard would render S. 12
totally otiose.