X vs State Of Uttarakhand And Another

Ravindra Maithani, J

The challenge in this revision is made to the the following:-

(i) The order dated 18.11.2022, passed by the Juvenile Justice Board, Nainital, in State Vs. A, by which the bail application of ‘X’, a child in conflict with law (“CIL”), who is the revisionist, in FIR No. 358 of 2022, under Sections 363, 366, 376, 376(3) IPC and Section ¾ of the Protection of Children from Sexual Offences Act, 2012 (“the case”), has been rejected. And;

(ii) Judgment and order dated 28.01.2023, passed in Criminal Appeal No.03 of 2023, ‘X’ Vs. State, by the Special Court POCSO/Additional District Judge/FTC, Haldwani, District Nainital. By it, the order dated 18.11.2022, passed in the case, has been upheld.

Heard learned counsel for the parties and perused the record.

According to the FIR, the victim, a minor girl, had left her house on 25.10.2022, at 8:30 in the evening. She did not return. It was revealed that it is the CIL, who took her along with him. She was recovered with the CIL.

Learned counsel for the CIL would submit that the victim has not supported the prosecution case in her cross examination; the CIL is in custody since 02.11.2022; the provisions of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2012 (“the Act”) has not been considered in the impugned order.

Learned State Counsel has today tendered the social investigation report of the CIL. It does not reveal anything adverse against the CIL. She admits that the victim has not supported the prosecution case in her cross-examination. According to her, the CIL is being tried as an adult, but the bail would still be governed under the provisions of the Act.

In fact, this Court has, on 11.06.2024, in BA1 No.273 of 2024, X Vs. State of Uttarakhand, has held that 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.

For a CIL, every offence is bailable. The law commands that CIL shall be released on bail. Section 12 of the Act makes provision in this regard. According to it, bail may be denied to a CIL if there are reasonable grounds for believing that the 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. Not only this, it commands the Court to record the reasons for denying bail and the circumstances that led to such a decision.

This Court is of the view that it is a case in which riders, as given in the proviso to Section 12(1) of the Act are not attracted. Therefore, while setting aside the impugned order, the CIL may be given into the custody of his father.

Both the impugned orders are set aside.

Let the CIL be given in the custody of his father, subject to production of two reliable sureties. The father of the CIL shall also give an undertaking that he shall take care of the CIL and shall not allow him to contact any of the witnesses or their family members. The father of the CIL shall also undertake that he shall also not contact either the witnesses or any of any of their family members.

The revision is allowed, accordingly.

Let a certified copy of this judgment be supplied to the learned counsel for the parties, today itself, on payment of usual charges.