Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Indian Penal Code, 1860 (45 of 1860), Section 376 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 -- POCSO – Rape -- Bail to juvenile in conflict with law/ CCL – Right of -- Penetrative sexual assault on minor prosecutrix --  Word “shall”, suggests that normally, prayer, if any, made for grant of bail deserves to be allowed -- No material worth credence was ever adduced on record by the prosecution to suggest that in the event of CCL being enlarged on bail, he may not only come in contact of hardened criminals but may again indulge in such activities – Principle of non-stigmatizing semantics is required to be followed -- Bail allowed with conditions.

(Para 8-18)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – Indian Penal Code, 1860 (45 of 1860), Section 354, 506  -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 9, 10 – POCSO -- Bail to juvenile in conflict with law – Right of -- A juvenile in conflict with law has to be necessarily released on bail unless proviso is applicable -- No finding recorded by JJ Board 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 -- Psychological Assessment Report of the Juvenile records that the juvenile does not belong to high risk category and against the column “worry list of child” it is mentioned that there was “no worry” – Bail allowed.

(Para 6-10)

A. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12, 18(3) – Protection of Children from Sexual Offences Act, 2012 (32 of 2012) Section 5(j)(ii), 6 -- Indian Penal Code, 1860 (45 of 1860), Section 376(3), 506 -- POCSO – Rape -- Child in conflict with law – Bail under juvenile law – Even if a CIL is transferred for trial as an adult under Section 18(3) of the Act, his bail application shall be entertained under Section 12 of the Act -- Bail to a CIL may be denied if there appear reasonable grounds for believing that his release is likely to bring him into association with any known criminal or expose him to any moral, physical or psychological danger, or his release would defeat the ends of justice.

(Para 10, 11)

B. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12, 18(3) – Protection of Children from Sexual Offences Act, 2012 (32 of 2012) Section 5(j)(ii), 6 -- Indian Penal Code, 1860 (45 of 1860), Section 376(3), 506 -- POCSO – Rape -- Child in conflict with law – Bail – Both the CIL and the victim were neighbours -- Both were young, the CIL was 17 years of age, whereas, the victim has stated her age as 15 years -- Victim has already been examined at trial -- After 6 months of pregnancy, the incident could be revealed -- FIR records that 4/5 times, the relationship were established -- Various questions would find deliberation during trial, which includes whether the relationship were consensual? Whether the parties were in relationship? If for the first time the offence was done, why the victim did not raise any alarm? Where the incident took place? etc. -- Social Investigation Report does not reveal anything adverse against the CIL -- The CIL was a student at the relevant time studying in class XII -- His conduct was good with everyone -- Fit case for bail and the CIL deserves to be enlarged on bail – Bail allowed.

(Para 14-16)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 10, 12 -- Anticipatory bail by minor/ juvenile – Maintainability of -- In the absence of any exclusion as such that the provisions of Section 438 Cr.P.C. would not apply, Court do not see any valid reason as to why any restrictive view is to be taken -- Bail is the rule and denial is the exception and for a child to be placed under disadvantage on account of the fact that the word “arrest” has not been mentioned in the Act does not do any justice to the purpose of the Act -- Omission as such has been made and it would not debar the children from the benefit of the provisions of Section 438 of the Act. View taken in CRM-M-19907-2020, Krishan Kumar (minor) through his mother vs. State of Haryana decided on 24.07.2020 = (2020) Law Today Live Doc. Id. 15162 approved.

(Para 39, 49-51)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 10, 12 – Anticipatory bail to Child in conflict with law/ CCIL – Nature and gravity of the accusation, the antecedents of the applicant and the possibility of fleeing from justice etc. are the factors which are to be kept in mind under Section 438 Cr.P.C. in case of a normal accused which would not stand in the way of CICL.

(Para 45)

Constitution of India, Article 21, 226 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 2(12), 94 -- Runaway marriage – Police protection – Minor girl -- School certificate – Birth certificate – Reliance upon -- Birth certificate relied upon by the father of petitioner would reveal that date of birth is 26.05.2007 as recorded in the birth register on 01.06.2007 -- Birth certificate was got issued, when there was no dispute -- Birth certificate relied, in order to form a prima facie opinion that petitioner is a child – No reliance can be placed upon abstract of the school register or a certificate issued by the Head Master of Government Primary School as it is not clarified as to on what basis and when this entry of date of birth was made – Petitioner is directed to be kept in the place of safety till she attains the age of majority, parental family disallowed to accompany her.

 (Para 12)

A. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 14(3), 15 -- Child in conflict with law -- Preliminary assessment – Time limit -- The provision of Section 14(3) of the Act, providing for the period of three months for completion of a preliminary assessment under Section 15 of the Act, is not mandatory -- The same is held to be directory -- The period can be extended, for the reasons to be recorded in writing, by the Chief Judicial Magistrate or, as the case may be, the Chief Metropolitan Magistrate.

(Para 18(i))

B. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 2(20), 19, 101 – Juvenile Justice (Care and Protection of Children) Model Rules, 2016, Rule 10, 10A, 11, 13 – ‘Children’s Court’ -- ‘Court of Sessions’ -- The words ‘Children’s Court’ and ‘Court of Sessions’ in Juvenile Justice (Care and Protection of Children) Act, 2015 and the 2016 Rules shall be read interchangeably -- Primarily jurisdiction vests in the Children’s Court -- However, in the absence of constitution of such Children’s Court in the district, the power to be exercised under the Act is vested with the Court of Sessions.

(Para 18(ii))

C. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15, 101 -- Child in conflict with law -- Appeal – Limitation -- Appeal, under Section 101(2) of the Act against an order of the Board passed under Section 15 of the Act, can be filed within a period of 30 days -- The appellate court can entertain the appeal after the expiry of the aforesaid period, provided sufficient cause is shown -- Endeavour has to be made to decide any such appeal filed within a period of 30 days.

(Para 18(iii))

D. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 2(20), 14, 15, 18, 19, 17, 101 – Duties of Courts, Tribunals, Boards and the Quasi-Judicial Authorities -- In all the orders passed by the Courts, Tribunals, Boards and the Quasi-Judicial Authorities the names of the Presiding Officer and/or the Members who sign the orders shall be mentioned -- In case any identification number has been given, the same can also be added -- The Presiding Officers and/or Members while passing the order shall properly record presence of the parties and/or their counsels, the purpose for which the matter is being adjourned and the party on whose behalf the adjournment has been sought and granted.

(Para 18 (vii, viii))

Indian Penal Code, 1860 (45 of 1860), Section 302, 34, 109, 120-B -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12, 101(5) – Murder -- Juvenile in conflict with law – Regular bail -- Except the personal opinion expressed by the Children’s Court, there is nothing to suggest that the petitioner would face wrath and outrage from the members of the society in case he is granted the concession of bail – Petitioner is in custody since 14.07.2022 and none of the 37 prosecution witnesses had been examined so far, therefore, the trial of the present case is not likely to be concluded anytime soon -- Further incarceration of the petitioner is not required – Petition allowed.

(Para 6, 7)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15, 18(3) – Trial of juvenile as adult – J.J. Board ordered to treat accused-juvenile as adult -- No Child Psychologist was consulted and so far as the two members are concerned, one of the member is M.A History and the another member is B.A. M.S. – In view of the report sent by the Principal Magistrate, Juvenile Justice Board that none of the Members or even the Presiding Officer was conversant with the child psychology or child psychiatry etc. – Impugned order set aside, matter remanded back to the Juvenile Justice Board for fresh consideration.

(Para 6-8)

A. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – Indian Penal Code, 1860 (45 of 1860), Section 302, 34 – Murder -- Juvenile in conflict with law – Trial as Adult -- Bail – Applicability of Section 12 of Juvenile Justice Act -- Held, appellant/CCL was directed to be tried like an adult, but still he remains a juvenile in conflict with law and can never be denied the benefit of Section 12 of the “Act”.

(Para 9)

B. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – Constitution of India, Article 21 -- Indian Penal Code, 1860 (45 of 1860), Section 302, 34 – Murder -- Juvenile in conflict with law – Trial as Adult -- Bail – Appellant was arrested on 07.12.2020 and is continuing in custody which may bring him in association with any known criminals and his right to speedy trial under Article 21 of the Constitution of India is also violated – Appeal allowed, the appellant is ordered to be released on bail pending trial.

(Para 10)

            Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000), Section 12 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Juvenile in conflict with law – POCSO Case – Regular bail -- Mere suggestion of vulnerability of the juvenile, in the opinion of a Probation Officer, to physical, psychological or immoral danger, as also opinion of the Clinical Psychologist regarding cognitive development of the juvenile, are alien to the requirements of Section 12 of the Act -- Being professional advice/opinion cannot afford reasonable ground for believing that the juvenile's release from custody is likely to bring him in association with any known criminal or expose him to physical, psychological or immoral danger – Nothing on record, which can even prima facie afford a ground to so believe -- Not the case that the juvenile's release from custody will defeat the ends of justice and does not fall in any of the exceptions carved out under Section 12 of the Act for declining bail -- Petitioner/juvenile in conflict with law is ordered to be released on bail.

(Para 3, 7-9)

Constitution of India, Article 136 -- Indian Penal Code, 1860 (45 of 1860), Section 147, 148, 149, 302, 307, 396, 332, 333, 412, 353, 504, 506, 34, 120-B -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 18 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Unlawful assembly – Murder – Dacoity – Regular bail – Petitioner was a minor, being tried as an adult, she had been married shortly prior to the incident – High Court denied bail, based on the circumstance that as many as eight police officers who had gone to arrest one person were killed in the act of firing by the co-accused -- Charge-sheet submitted, trial has commenced – Held, continued custody of the petitioner at this stage would not sub-serve the ends of justice – Petitioner ordered to be released on bail subject to such terms and conditions.

(Para 1-7)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Child in conflict with law – Bail -- While dealing with the bail petition of the petitioner, the mandate of Section 12 of the Act, is required to be followed -- Objective of Section 12 of the Act, is reformative in nature -- There is no material or circumstance on record to hold that if released on bail, the petitioner would come into contact with the known criminals -- Reasoning of the Board that it would expose the petitioner to the psychological danger does not seem to be emanating from the given circumstances -- FIR was registered on 17.10.2021 and the petitioner has been in protective custody since 19.10.2021 – Petition allowed -- Petitioner ordered to be released on bail.

(Para 9)

A. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 7, 8 -- Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 – POCSO case – Age of victim – Determination of – Stage of case -- Proof or determination of age of the victim in a POCSO case is foundational and for such an important issue, the same can be raised at any stage of the lifetime of the case, even before the appellate forum -- Impugned judgment and sentence set aside and quashed -- Matter remanded to the court of the learned Special Judge (POCSO), to determine the age of the victim and to pass the final order upon appreciation of evidence under the changed circumstances.

(Para 15-21)

B. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 7, 8 -- Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 – Age of the victim – Determination of -- Nothing on record to indicate the actual age of the victim either by medical or documentary evidence -- Special Court directed to take up the exercise of determination of the age of the victim in accordance with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and to allow the parties to produce relevant documents, examine and cross-examine the witnesses and to be heard on the issue and thereafter to decide on the issue.

(Para 16-19)

A. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15 -- Child in conflict with law – Preliminary assessment -- Obligation of the Board in making the preliminary assessment on the four counts largely dependent upon the wisdom of the Board without there being any guidelines as to how the Board would conduct such preliminary assessment -- In the absence of any such framework or guidelines, the Board has to use its discretion in taking into consideration whatever material it deems fit for assessing the four attributes.

(a) mental capacity to commit the offence.

(b) physical capacity to commit the nature of the alleged assault.

(c) maturity and ability to understand the consequences of his action.

(d) circumstances in which the offence was committed.

(Para 62)

B. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15 -- Child in conflict with law – Preliminary assessment -- Mental Capacity to commit offence -- Ability to understand the consequences of offence – Both are different.

(Para 67)

C. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15 -- Child in conflict with law – Preliminary assessment -- Consequences of offence – Language used in section 15 is “the ability to understand the consequences of the offence” -- Expression used is in plurality i.e., “consequences” of the offence and, therefore, would not just be confined to the immediate consequence of the offence or that the occurrence of the offence would only have its consequence upon the victim but it would also take within its ambit the consequences which may fall upon not only the victim as a result of the assault, but also on the family of the victim, on the child, his family, and that too not only immediate consequences but also the far-reaching consequences in future -- Consequences could be in material/physical form but also affecting the mind and the psychology of the child for all times to come.

(Para 68)

D. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15 (1) -- Child in conflict with law – Preliminary assessment – Mental capacity -- Consequences of offence – Evaluation of -- Children may be geared towards more instant gratification and may not be able to deeply understand the long term consequences of their actions -- They are also more likely to be influenced by emotion rather than reason -- While they do consider risks cognitively (by weighing up the potential risks and rewards of a particular act), their decisions / actions may be more heavily influenced by social (e.g. peer influences) and/or emotional (e.g. impulsive) tendencies -- Lack of experience coupled with the child’s limited ability to deeply understand the long term consequences of their actions can lead to impulsive / reckless decision making -- Individualised assessment of adolescent mental capacity and ability to understand the consequences of the offence is one of the most crucial determinants of the preliminary assessment -- This evaluation of ‘mental capacity and ability to understand the consequences’ of the child in conflict with law can, in no way, be relegated to the status of a perfunctory and a routine task -- Process of taking a decision on which the fate of the child in conflict with law precariously rests, should not be taken without conducting a meticulous psychological evaluation.

(Para 71-75)

E. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15(1) – Child in conflict with law – Preliminary assessment -- Child psychologist/ psychiatrist/ expert – Expression “May” – Interpretation as mandatory -- Where the Board is not comprising of a practicing professional with a degree in child psychology or child psychiatry, the expression “may” in the proviso to section 15(1) would operate in mandatory form and the Board would be obliged to take assistance of experienced psychologists or psychosocial workers or other experts -- However, in case the Board comprises of at least one such member, who has been a practicing professional with a degree in child psychology or child psychiatry, the Board may take such assistance as may be considered proper by it; and in case the Board chooses not to take such assistance, it would be required of the Board to state specific reasons therefor.

(Para 76)

F. Interpretation of Statute – Expression “May” as Mandatory -- It is a well settled principle of interpretation that the word ‘may’ when used in a legislation by itself does not connote a directory meaning -- If in a particular case, in the interests of equity and justice it appears to the court that the intent of the legislature is to convey a statutory duty, then the use of the word “may” will not prevent the Court from giving it a mandatory colour.

(Para 77)

G. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15 – Child in conflict with law -- Preliminary assessment -- Task of preliminary assessment u/s 15 of the Act, 2015 is a delicate task with requirement of expertise and has its own implications as regards trial of the case -- It appears expedient that appropriate and specific guidelines in this regard are put in place -- Without much elaboration, Court left it open for the Central Government and the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights to consider issuing guidelines or directions in this regard which may assist and facilitate the Board in making the preliminary assessment under section 15 of the Act, 2015.

(Para 87)

Indian Penal Code, 1860 (45 of 1860), Sections 302, 323, 341, 506, 148, 149 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – Murder case -- Bail to juvenile -- General rule is bail and bail is to be denied only in cases falling under exceptions provided in the Section 12 – Considering that the petitioner is in custody since 2nd November, 2018, he is entitled to benefit of Section 12 of J.J. Act – No material to bring the case within the ambit of exceptions -- Criminal revision allowed, petitioner ordered to be released on bail.

(Para 7)

Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000), Section 4, 7A, 15 -- Indian Penal Code, 1860 (45 of 1860), Section 302 – Murder case – Life sentence – Application in Supreme Court to declare juvenile -- JJ Board was directed to conduct enquiry – Age of appellant comes to 17 years 07 months and 23 days – Held, when the offence was committed, the provisions of the Juvenile Justice (Care and Protection) Act, 2000 were in force – U/s 7A of the 2000 Act, an accused was entitled to raise a claim of juvenility before any Court, even after the final disposal of the case – Sub-section (2) of Section 7A provided that if after holding an inquiry, the Court found the accused to be juvenile on the date of commission of the offence, the Court was under a mandate to forward the juvenile to the Juvenile Justice Board for passing appropriate orders – U/s 15 of the 2000 Act, the most stringent action which could have been taken against the applicant, was of sending the applicant to a special home for a period of three years – Applicant has undergone the sentence for 17 years and 03 days -- Therefore, now it will be unjust to send the applicant to the Juvenile Justice Board -- Application allowed, direction given that applicant shall be forthwith set at liberty provided he is not required to be detained under any other order of the competent Court.

(Para 3-7)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 401 -- Child in conflict with law -- Rejection of bail -- Revision against -- Bail is the general rule and only in cases covered by exceptions provided in the proviso to Section 12(1) of the Act, bail can be denied -- Impugned order stated that there is an apprehension that life of CCL would be in danger -- State is not in the position to substantiate the basis for the reasons recorded -- Impugned order set aside -- Matter remitted back to Principal Magistrate, Juvenile Justice Board to consider the matter afresh.

(Para 1-7)

Indian Penal Code, 1860 (45 of 1860), Section 392 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Robbery case -- Bail to juvenile in conflict with law -- JJ Board and Appellate Court depended, upon the proviso to Section 12 of Act in concluding that upon facility of bail, there being every likelihood of his being brought in association with hardened criminals, and, that there is being every likelihood of his hence being exposed to moral, physical and psychological danger – However, both the ld. Courts proceeded to, without any tangible and concrete evidence with respect to the afore factum existing on record rather made the above conclusion prima-facie imaginative, and, also surmisal – Statutory leverage in the Courts below with an alternate being placed under the supervision of a Probation Officer, and/or, under the care of any fit person neither been explored, nor has been thought fit to be worked vis-à-vis the juvenile in conflict with law – Consequently, the impugned orders quashed, and, set aside, with a direction, that the juvenile in conflict with law shall be released, and, shall be upon his release, become placed by the District Collector concerned, under, the supervision of the Child Welfare Officer.

(Para 8-12)

Indian Penal Code, 1860 (45 of 1860), Section 376-AB – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- POCSO matter -- Bail to juvenile -- Rape with minor – Victim was just 01 year and 09 months old -- 11 prosecution witnesses remain to be examined -- Prima facie, there are very serious allegations levelled against the petitioner, for which the Court is not inclined to extend the concession of bail to the petitioner -- However, since the petitioner has been in custody since 09th August, 2019, the Juvenile Board/trial Court concerned is directed to expedite the trial and conclude the same expeditiously, preferably, on or before 30th November, 2021.

(Para 2-4)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12, 115 -- Indian Penal Code, 1860 (45 of 1860), Sections 376, 376AB -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – POCSO matter -- Rape with minor – Bail to juvenile -- Petitioner was declined bail on the ground that release of the petitioner on bail would defeat the ends of justice – Held, 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 – J.J. Act is a beneficial legislation and gravity or seriousness of the offence would not be a ground to decline concession of bail to the juvenile – No purpose will be served in keeping the petitioner in custody -- Impugned orders are not sustainable in the eyes of law and as such, are liable to be set aside -- Petition allowed, petitioner is directed to be released on bail.

(Para 5-10)

Indian Penal Code, 1860 (45 of 1860), Sections 323, 427, 379, 148 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Anticipatory bail to juvenile – Petitioner is aged about 17 years and is a juvenile and he is alleged to be armed with the baseball bat but no injury is attributed to him – On interim bail petitioner appeared before the SHO/Investigating Officer and has joined the investigation and is no more required for any further investigation -- Petition allowed and the interim bail granted to the petitioner, made absolute.

(Para 2-5)

Code of Criminal Procedure, 1973 (2 of 1974), Section 438 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 8 – Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – Anticipatory bail by juvenile – Maintainability of -- Petition u/s 438 Cr.P.C. on behalf of the juvenile is not maintainable.

(Para 9)

A. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – Bail to juvenile -- Grant of bail to a child in conflict with law is a rule and rejection of the same is an exception.

(Para 8)

B. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12, 18(1)(f) – Bail to juvenile -- Respondent-State could neither show nor refer to any material to explain as to how, in case the petitioner is enlarged on bail, would he be exposed to moral, physical or psychological danger or would come in contact of known criminals -- Mere apprehension of the prosecution without there being any material on record would not be sufficient to decline the prayer for grant of bail -- It may also be noticed that in case a juvenile is found guilty and convicted, the maximum period that he can be ordered to spend in a Special Home under Section 18 (1) (f) of the Act is three years -- Petitioner has spent more than one year in incarceration, therefore, no purpose would be served in detaining the petitioner any further – Petitioner is ordered to be released on bail.

(Para 9-11)

A. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Indian Penal Code, 1860 (45 of 1860), Sections 302, 397, 201 – Murder case -- Bail to juvenile – Ld. Addl. Sessions Judge not at all considered entitlement of the Petitioner for bail in terms of Section 12 of the JJ Act, which could not have been overlooked even in the situation that he was sent up to face trial by the JJB in the Children’s Court – Grounds for denying bail to him could be within the proviso to Section 12(1) of the JJ Act.

(Para 9)

B. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Indian Penal Code, 1860 (45 of 1860), Sections 302, 397, 201 – Murder case -- Bail to juvenile – Petitioner  allegedly became a member of a gang along with co-accused crossed the age of majority at the relevant time who are already in custody – So there is little chance of the Petitioner being exposed to their association if released on bail – Petitioner remained in detention for almost an year – Petitioner released on bail.

(Para 9, 10)

Indian Penal Code, 1860 (45 of 1860), Sections 376, 363, 366-A, 506 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Sections 3, 4 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – POCSO case – Bail to juvenile -- No reasonable explanation or finding given as to how the petitioner, if released on bail, would come into association with any known criminals -- Petitioner who is a juvenile, is in judicial custody since 14.10.2019 -- Both the Courts below have not referred to any social investigation report prepared by the respondent-State, as to the background of the petitioner or with whom he associates with -- To reject the appeal on a presumption that he would come into association with any criminal is wholly unjustified – Impugned orders are not sustainable in the eyes of law and as such, are liable to be set aside -- Revision petition allowed, petitioner directed to be released on bail.

(Para 4-6)

Indian Penal Code, 1860 (45 of 1860), Section 302, 323, 34 – Conviction in Murder – Juvenile (17 years 1 month) at the time of incident – Sentence of more than two years undergone -- Appellant being juvenile, conviction order passed by the Trial Court and the impugned judgment passed by the High Court affirming such conviction deserve to be set aside -- Since the appellant has already been in custody for more than two years, no reason to send the matter back to the Juvenile Justice Board – Appeal allowed.

(Para 5-11)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – Bail to juvenile – Three other accused persons identified as accused out of which two are already arrested -- None of the other culprits is a Juvenile -- Following arrest of the other culprits, there is very little chance of the petitioner now coming into association with any criminal or being exposed to moral, physical or psychological danger – Petitioner in custody for more than four months -- Considering the long period of detention undergone by him as also the Social Investigation Report, petitioner released on bail.

(Para 6-8)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), 21, 61 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – NDPS case – Bail to juvenile – Right of -- Recovery of 100 gram of charas -- U/s 12 JJ Act, 2015 and rules framed thereunder, the gravity of offence is immaterial -- Complicity of the petitioner would be debatable -- Only consideration at this stage is to reach at a prima facie conclusion that whether by enlarging the juvenile in conflict with law on bail, ends of justice would be defeated or not -- Bail can be rejected only in three eventualities i.e. where reasonable ground exists for believing that the release of juvenile in conflict with law is likely to bring him in association with known criminal(s), the release would expose him morally, physically and psychologically and the release would defeat the ends of justice -- At this stage, no such firm opinion can be made -- Petitioner ordered to release on regular bail.

(Para 9-11)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Constitution of India, Article 14 – Anticipatory bail by juvenile – Maintainability of -- Simply because there are special provisions made for grant of bail to a juvenile, would not dilute his right to approach a Court u/s 438 Cr.P.C. so as to seek protection against his arrest -- There cannot be any discrimination against juvenile in the matter of consideration for grant of anticipatory bail because that would be denial of his fundamental right under Article 14 of the Constitution of India – Held, juvenile is as much entitled to avail the benefits u/s 438 of Cr.P.C. as any other citizen is entitled.

(Para 7)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A (420, 465, 468, 471, 120-B added later) – Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Wrong affidavit in court – Bail to juvenile -- Petition showed date of birth to be 20.08.2000 on affidavit instead of real date of birth as 20.08.2002 – High Court ordered for registration of criminal case for attempt to mislead and hoodwink the Court -- Resultantly, offence u/s 420, 465, 468, 471, 120-B IPC added – Challan has been presented – Considering the totality of facts and circumstances of the case and keeping in view the custody of the petitioner since 29.08.2020, Court deemed it appropriate to enlarge her on regular bail.

(Para 3-6)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Petitioner is originally a resident of U.P., and presently was residing with his father in New Delhi, which falls in a different State from where the trial is taking place, i.e. Gurugram in Haryana – JJ Board declined bail by saying the petitioner may have to face revulsion and outrage from members of the society on surmises and conjectures -- Ld. ASJ upheld the decision by saying release would associate him with known criminals and it would expose him to moral, physical or psychological danger, whereas JJ Board never speculated upon such possibility – Held, petitioner who is a juvenile and has already remained in detention for a period of one year, one month and twenty days by now, should be released on bail – Revision allowed.

(Para 5-8)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Sections 4, 6 – Indian Penal Code, 1860 (45 of 1860), Sections 376(2)(f), 376(3) – Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Rape with minor cousin sister – Prosecutrix was residing in house of petitioner being brought up by his mother -- Juvenile’s bail – Prosecutrix entire statement recorded – Petitioner was aged about 15 years when the FIR was lodged still continues to be a juvenile -- By now, he has already remained in Safe Custody for more than one year and one and a half months –  His further detention there would not appear to be in his overall interest due to the fact that there are likely to be more juveniles in conflict with law, housed in the same premises -- Prosecutrix has already been shifted from the parental house of the petitioner -- No reason to deny petitioner the opportunity of coming back to the custody of his parents -- Trial is likely to take its own substantial time, particularly on account of the ongoing Covid-19 pandemic -- Revision petition allowed -- Petitioner is directed to be released on bail.

(Para 4-8)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12, 94 – Code of Criminal Procedure, 1973 (2 of 1974), Section 57, 167, 438 -- Indian Penal Code, 1860 (45 of 1860), Sections 302, 341, 120-B, 148, 149 -- Arms Act, 1959 (54 of 1959), Sections 25, 27, 29 – Murder case -- Anticipatory bail – Interim bail -- Juvenile-petitioner’s reliance upon birth certificate and matriculation certificate -- Without commenting anything as regards the genuineness of the documents, petition disposed of with the directions:

(i) The petitioner to surrender before the Juvenile Justice Board within 10 days and upon the petitioner so surrendering, the Juvenile Justice Board shall release the petitioner on interim bail subject to his furnishing requisite bail bonds to the satisfaction of the Board.

(ii) The Board shall conduct an inquiry as regards the juvenility of the petitioner. If the petitioner is found to be juvenile, the Board shall consider his release under Section 12 of the Act and pass an appropriate order.

(iii) The petitioner to be present before the Board on the day his bail application is to be heard and on the day when the order on his bail application is to be pronounced or on any other day as directed by Board.

(iv) If the Board, upon inquiry regarding age comes to conclusion that the petitioner is not a juvenile, he shall be produced before Illaqa Magistrate who shall proceed further in accordance with law. The petitioner shall appear before the Board on all the dates unless specifically exempted.

(v) The interim bail shall come to an end if petitioner is not found to be juvenile or in case his application is dismissed under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

(Para 4)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Bail to juvenile -- Prosecutrix minor/ 14 years old – Petitioner in protective custody for the last one year -- Petitioner was found to have fathered the child with the minor prosecutrix – Nothing produced on record to show that the petitioner ever indulged in any activity violating the law except for the action, for which, he is being tried now -- Nothing to prima facie show that after the release, the petitioner will mingle with the other criminals or will suffer psychologically & physically – Petition allowed, petitioner is directed to be released on bail.

(Para 3-7)

A. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 --  Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000), Section 15 -- Life sentence affirmed by High Court – Juvenile in conflict with law – Declaration of – Stage of -- Supreme court at this stage can decide and determine the question of juvenility of appellant, notwithstanding the fact that appellant was not entitled to the benefit of being a juvenile on the date of the offence, under the 1986 Act, and had turned an adult when the 2000 Act was enforced – Appellant was less than 18 years of age on the date of commission of offence on 11.12.1981, he is entitled to be treated as a juvenile and be given benefit as per the 2000 Act -- Appellant has undergone incarceration for more than 2 years – Sentence of life imprisonment set aside, matter remitted to the jurisdiction of the Board for passing appropriate order/directions u/s Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and the compensation to be awarded to the family of the deceased.

(Para 17-22)

B. Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000), Section 15 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 25 -- General Clauses Act, 1897 (10 of 1897), Section 6 -- Juvenile in conflict with law – An accused cannot be denied his right to be treated as a juvenile when he was less than eighteen years of age at the time of commission of the offence, a right which he acquired and has fructified under the 2000 Act, even if the offence was committed prior to enforcement of the 2000 Act on 01.04.2001 -- In terms of Section 25 of the 2015 Act, 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced.

(Para 18)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – Indian Penal Code, 1860 (45 of 1860), Sections 376, 34 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 8 -- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), Sections 3, 4 – Crime against child – Rape case – Regular bail -- Exception has been carved out for declining the bail to the juvenile who is in conflict with law i.e. he or she is likely to come in association with any known criminal or upon release on bail would expose such juvenile to moral, physical or psychological danger or that release of the juvenile would defeat the ends of justice -- For invoking such exception, there has to be some material before the competent authority -- Impugned orders completely bereft of any such reasoning -- No such material/evidence has been adverted to in the order – Revision petition allowed, impugned orders of both the Courts below set aside -- Petitioner is held entitled to grant of bail under Section 12 of the Act.

(Para 10-14)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – Indian Penal Code, 1860 (45 of 1860), Sections 307, 452, 427, 148, 149 IPC -- Arms Act, 1959 (54 1959), Section 25, 27 -- Juvenile tried as major under Cr.P.C. -- Juvenile is entitled to bail as a matter of right unless the conditions prescribed for refusal of bail u/s 12 of J.J. Act exist – Held, none of these conditions exist in the case -- Petitioner is entitled to grant of regular bail.

(Para 2, 6)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 1, 2(12)(13)(20)(35), 8, 12, 15, 18, 19, 102 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Child in conflict with law – Regular bail – Maintainability of -- Whether a child in conflict with law, who is being tried as an adult for the purpose of trial u/s 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 u/s 439 Cr.P.C. before the Children’s Court and the High Court – Held, an application for grant of bail to a Child apprehended or detained by the police will be entertained by the J.J. Board u/s 12 of the J.J. Act and an application u/s 439 Cr.P.C. before the Children’s Court will not be maintainable.

(Para 9-18)

Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 10,12 -- Anticipatory bail by minor/ juvenile – Maintainability of -- An inference cannot drawn that the legislature intended to debar a juvenile from seeking relief of pre-arrest bail -- Children below age of 18 years coming within definition of juvenile be treated with kindness and compassion even if they are found in conflict with law – Could not be the  intention of the legislature that such juvenile should be first apprehended and then produce before Juvenile Justice Board -- Petition is found to be maintainable.

(Para 1,7,8)

Constitution of India, Article 226 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 2(iv), 41 -- Writ of habeas corpus – Foster care order by Child Welfare Committee with incomplete coram on gazetted holiday – Colourable exercise of powers –Order passed by the Child Welfare Committee is totally silent about the factum of petitioner and his family being unfit or incapacitated for taking care and for protection and well-being of the child -- Counselling report would show that the Counsellor interacted with the minor and found that the minor was living happily with her father and also wanted to reside with him – Since the order passed by the Child Welfare Committee is found to be the result of colourable exercise of powers, therefore, Court deemed it appropriate to restore the custody of the minor in favour of the petitioner -- In the event of filing any petition under the relevant statute for custody of minor in regular proceedings, the same shall be decided in accordance with law -- Custody of the child ordered to be handed over to the petitioner.

(Para 19-23)

A. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 8, 12 -- Juvenile/ Child in conflict with law – Right of Bail –Duty of Juvenile Justice Board:--

-- Very constitution of a Juvenile Justice Board, headed by a Metropolitan Magistrate with at least three years’ experience, is with the intention that such an experienced judicial officer, assisted by two social workers, would be conscious of their pious duty to ensure protection of the rights of juveniles.

-- Manifest in no uncertain terms the duty cast upon the Juvenile Justice Board to implement the letter of the law in true spirit, keeping in mind the ultimate interests of the child.

Section 12 of the Act of 2015 makes it clear that grant of bail to the child in conflict with the law should be the norm and the proviso thereto requires denial of such bail only if release of the child is likely to bring him or her into association with known criminals or expose him/her to moral, physical or psychological danger or defeat the ends of justice.

(Para 5)

B. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 8, 12 -- Juvenile/ Child in conflict with law – Right of Bail –Duty of Juvenile Justice Board – Juvenile Justice Board declined the bail lackadaisically recorded that there were reasonable grounds to believe that if the petitioner was released on bail, it was likely to bring him into association with a known criminal or expose him to moral, physical or psychological danger – Ld. Principal Magistrate further recorded that his release would defeat the ends of justice -- This mechanical reproduction of the legal provision was mere lip service by the learned Principal Magistrate to the legal requirement but is of no avail -- This is not the level of care or the approach expected of a Magistrate heading a Juvenile Justice Board -- Very purpose of constituting such Boards would be defeated by such uncaring and inept discharge of functions by judicial officers entrusted with the duty of giving effect to this welfare legislation -- Revision allowed, petitioner ordered to be released on bail forthwith without sureties.

(Para 6-8)

Constitution of India, Article 21, 226 -- Hindu Marriage Act, 1955 (25 of 1955), Section 5(iii), 11 -- Run-away couple not of marriageable age – Marriage solemnised – Life and liberty – Protection of – Right of -- Section 11 of the Hindu Marriage Act precludes a marriage solemnized in contravention of Sub Section (iii) of Section 5 from the purview of being regarded as void or invalid -- Constitutional Fundamental Right under Article 21 of Constitution of India stands on a much higher pedestal – Being sacrosanct under the Constitutional Scheme it must be protected, regardless of the solemnization of an invalid or void marriage or even the absence of any marriage between the parties, regardless of a citizen being minor or a major -- Directions given to D.S.P to provide necessary protection qua their life and liberty, if deemed fit.

(Para 13-18)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 22, 37 – NDPS matter – Accused was minor -- Regular bail -- Petitioner was a minor on the date of the alleged offence though have been treated as a major -- Petitioner and the other co-accused were apprehended in possession of 850 tablets of Clovidol-100, however, no specific overt act is attributed to the petitioner -- A juvenile who is accused of a bailable or non-bailable offence would ordinarily be entitled to be released on bail if the Court is convinced that such release would not be likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or defeat the ends of justice – No other case against him under the Act of 1985 -- No evidence of Section 37 of the Act of 1985 being attracted to the case on hand – Furthermore, no basis for the opinion formed by both the Courts below that the release of the petitioner would be likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger -- Continued incarceration of the petitioner is neither required nor desirable – Petitioner shall be released on regular bail.

(Para 1-5)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Indian Penal Code, 1860 (45 of 1860), 302, 307, 34 – Arms Act, 1959 (54 1959), Section 25 – Allegation of Murder – Regular bail to Juvenile – Right of – Intention of the legislature is to grant bail to the juvenile irrespective of the nature or gravity of the offence -- Held, a juvenile can be denied the concession of bail, if any of the three contingencies specified under Section 12(1) of the Act is available -- Court below has not satisfied the requirement of provisions of Section 12(1) of the Act and without having any material on record, the bail application of the petitioner has been declined -- Accordingly, petitioner is directed to be released on regular bail.

(Para 1, 8-13)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 -- Indian Penal Code, 1860 (45 of 1860), Section 377, 34 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Unnatural offence – Regular bail -- Record or the circumstances of the case do not show that there is any reasonable ground for believing that the petitioner is likely to bring himself into association with known criminals if released on bail; or that he will expose himself to some moral, physical or psychological danger – Policy and provision of the Juvenile Justice Act is in favour of grant of bail to the juvenile -- Since the circumstances or the grounds justifying denial of the bail are not discernible in the case, therefore, the petitioner deserve to be allowed concession of bail.

(Para 1, 5-7)

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – Indian Penal Code, 1860 (45 of 1860), Section 302, 323, 325, 506, 34 --  Child conflict with law – Regular bail – Right of -- Petitioner is less than 16 years of age on the date of occurrence – Grant of bail to a juvenile is the rule -- Bail to a juvenile can be declined only in case his release is likely to bring him in association with known-criminals or expose him to moral, physical or physiological danger or where his release would defeat the ends of justice -- Gravity or nature of the offence is not a relevant consideration -- Furthermore, u/s 3(i) of the Act, a presumption of innocence of any malafide or criminal intent arises in favour of the juvenile – Petitioner has spent more than 07 months in incarceration – Detention of the petitioner would mar his future education and prospects in life -- Petitioner ordered to be released on bail, grandfather of the petitioner shall regularly monitor the movement of the petitioner and ensure that the petitioner does not come in association with any known-criminals and does not indulge in any other offence.

(Para 7-10)

Indian Penal Code, 1860 (45 of 1860), Sections 364, 506 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 12 – Bail to juvenile – Right of -- 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 the same can be declined only in case where reasonable grounds are there for believing that the release :

--       is likely to bring him into the association of any known criminal or

--       expose him to moral, physical or psychological danger or

--       that his release would defeat the ends of justice.

Juvenile is entitled to bail as a matter of right unless the case falls in the exceptions carved out in the provision itself but nothing was available on record to show that any of the three exceptions specified under Section 12(1) of the Act was existing -- Both the Courts below have not satisfied the requirement of provisions of Section 12(1) of the Act and without having any material on record, the bail application of the petitioner has been declined -- Impugned orders are not sustainable in the eyes of law and as such, are liable to be set aside -- Petitioner is directed to be released on bail.

(Para 10-13)

A. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 8(3), 14,15, 18(3) – Juvenile Justice (Care and Protection of Children) Model Rules, 2016, Rule 10, 10A – Juvenility of accused – Heinous offence – Trial as Adult or not -- Preliminary Assessment -- Section 15 is required to be strictly followed and determined so as to arrive at a conclusion as to whether the child is to be tried as an adult or not -- That exercise is called as `PRELIMINARY ASSESSMENT' -- Said parameters are as under :-

(i)  mental and physical capacity to commit such offence;

(ii) ability to understand the consequences of the offence;

(iii)            the circumstances in which he allegedly committed the offence.

Parameters (i) and (ii) are inter-related as the ability to understand the consequences of the offence would only be there in case the child has the mental capacity to do so -- For assessing the mental capacity, the Board has been given the liberty to take the assistance of experienced psychologists or psycho-social workers or other experts -- Preliminary assessment is not a trial;

--     Child has to be presumed to be innocent and bereft of any criminal intent upto the age of 18 years and would have the right to be heard and participate in all procedures and decisions effecting his best interest with due regard to his age and maturity;

--     No list of witnesses and documents were supplied to the petitioner or his parents or guardian, which itself shows that the Board as well as the Appellate Court have decided the case without any application of mind and contrary to the provisions of the Act and the Rules framed thereunder.

(Para 8-17)

B. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 8(3), 14,15, 18(3) – Juvenile Justice (Care and Protection of Children) Model Rules, 2016, Rule 10, 10A – Juvenility of accused – Heinous offence – Trial as Adult or not -- Preliminary Assessment – Assessment based on inappropriate tests, namely, coloured Progressive Matrices (CPM) and Malin's Intelligence Scale for India Children (MISIC) meant for children between the ages of 5-11½ and 5-15 whereas child is 16½ years – Petitioner wanted to cross examine the psychologist regarding the same but his request was declined – Copies of the tests, in question, were not provided to the petitioner/parents/guardian but were shown just prior to the hearing of arguments -- Since the petitioner was 16.75 years old, when these tests were conducted on him, which were not correct tests and have resulted in wrong results -- Said expert himself stated in his report that it would be appropriate that further assessment be made by a higher authority – Orders set aside, case remanded back to the Board for afresh consideration after assessing the intelligency, maturity, physical fitness as to how the juvenile in conflict with law was in a position to know the consequences of the offence.

(Para 18-25)

C. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 8(3), 14,15, 18(3) – Juvenile Justice (Care and Protection of Children) Model Rules, 2016, Rule 10, 10A – Juvenility of accused – Heinous offence – Trial as Adult or not -- Preliminary Assessment – IQ test of the petitioner was conducted when he was more than 16 years and 9 months of age -- An IQ of 95 at the age 16.75 would necessarily translate to 15.67 years, going by the formula for determining the mental age of any child, which is mental age/Biological Age x 100 -- This means that the petitioner-child has been determined to have a mental age of less than 16 years as per the report of socalled expert -- Even as per said report, the petitioner had to be necessarily treated to be below 16 years.

(Para 18)

D. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 8(3),14,15 – Juvenile Justice (Care and Protection of Children) Model Rules, 2016, Rule 10, 10A – Juvenility of accused – Heinous offence – Trial as Adult or not -- Preliminary Assessment -- Non giving of any statement of witnesses or documents etc. to the petitioner/guardian/parent, is absolutely in contradiction with the provisions of Rule 10(5) read with Sections 3(iii) and (xvi) read with Section 8(3) of the Act -- Plea of confidentiality is actually for the protection of the child from third party by considering the privacy of the child -- It cannot be interpreted that a delinquent child would not get a fair hearing, whereas, it is the requirement of Section 8(3) of the Act that the participation of the child and the parent or guardian is to be at every step of the process.

(Para 20-22)

E. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15, 102 – Revisional power -- As per provisions of Section 102 of the Act, in case, there is any illegality and perversity or there is non-compliance of mandatory provisions, High Court has a power to exercise the revisional jurisdiction.

(Para 24)

A. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Constitution of India, Article 15(3) -- Marital rape with girl child -- Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? – Held, Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not -- Exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved -- Artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child -- Artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions -- Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

 (Para 1, 105)

B. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 2(12, 2(14) -- Prohibition of Child Marriage Act, 2006 (6 of 2007), Section 3 -- Marital rape/ Sexual inter-course with wife aged 15 to 18 years – Harmonious and purposive interpretation -- Entire issue of the interpretation of the JJ Act, the POCSO Act, the PCMA and Exception 2 to Section 375 of the IPC can be looked at from the perspective of purposive and harmonious construction of statutes relating to the same subject matter – There seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age -- Exception 2 to Section 375 of the IPC is to be read in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child -- To harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

(Para 99, 103, 105,108)

C. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 –Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Constitution of India, Article 14, 15, 21 -- Sexual inter-course with wife aged 15 to 18 years – Marital rape with girl child below 18 years -- Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:–

(i)      it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;

(ii)     it is discriminatory and violative of Article 14 of the Constitution of India and;

(iii)    it is inconsistent with the provisions of POCSO, which must prevail.

Therefore, Exception 2 to Section 375 IPC is read down as follows:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.

This judgment will have prospective effect.

(Para 195)

D. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 198(6) -- Sexual inter-course with wife aged 15 to 18 years – Martial rape with wives below 18 years – Cognizance of -- Section 198(6) of the Code will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.

(Para 196)

Punjab Civil and Criminal Courts, Preparation and Supply of Copies of Records Rules, 1965, Rule 3 – Right to get documents from pending Juvenile Trial -- Documents produced before Juvenile justice board – Application for supply of documents by other co-accused – Petitioner is not a stranger to the proceedings -- Documents in original are before the JJB having being exhibited and no prejudice would be caused to the prosecutrix, who is common to both trials, in case the documents are supplied to the petitioner -- However denial of the same to the petitioner will definitely hamper his defence.

(Para 2, 6-10)