Patna High Court
Nitish Kumar vs The State Of Bihar on 16 April, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.233 of 2021
Arising Out of PS. Case No.-195 Year-2018 Thana- KONCH District- Gaya
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Nitish Kumar, S/o Ramswarup Paswan, R/o Village-Kamaldah, P.S.-Paraiya,
District-Gaya, Under The Guardianship of his Mother Namely Sugi Devi,
W/o Ramswarup Paswan, R/o Village-Kamaldah, P.S.-Paraiya, District-Gaya.
... ... Petitioner
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Petitioner : Mr. Manish Kumar No.2, Advocate
Mr. Ram Kumar, Advocate
Mr. Rohit Priyadarshi, Advocate
For the State : Ms. Sangeeta Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 16-04-2025
The present Revision Petition has been preferred by
the petitioner against the judgment dated 16.12.2020 passed by
learned Special Judge (Children Court), Gaya in Criminal
Appeal (Juvenile) No. 32 of 2019 (C.I.S) whereby learned
Appellate Court has refused to enlarge the petitioner on bail.
2. The factual background of the case is that on the
fardbeyan of one Gopal Sao dated 14.06.2018, Konch P.S. Case
No. 195/2018 was registered on 14.06.2018 for the offences
punishable under Sections 395, 376D, 397, 376(3) and 376(DA)
of the Indian Penal Code and Section 6 of the POCSO Act, 2012
against ten unknown persons.
3. After investigation, charge-sheet bearing no. 192
Patna High Court CR. REV. No.233 of 2021 dt.16-04-2025
of 2018 dated 06.09.2018 was filed under Section 395, 376D,
397, 376(3) and 376(DA) of the Indian Penal Code and Section
6 of the POCSO Act, 2012 against twelve accused persons
including the appellant in the POCSO Court. On an application
of the appellant herein, the POCSO Court sent the record of the
Appellant vide order dated 15.12.2018 to the J.J. Board, Gaya
for declaring him juvenile along with the xerox copy of the
School Leaving Certificate filed by the Appellant.
4. Subsequently, learned J.J. Board, Gaya declared
the appellant as juvenile on the basis of admission register
wherein his date of birth was mentioned as 17.08.2001, whereas
the date of the alleged occurrence is 13.06.2018 and hence,
finding the appellant 16 years 9 months and 26 days old, the
appellant was declared juvenile and subsequently, vide order
dated 28.01.2020, cognizance of offence punishable under
Sections 395, 376D, 397, 376(3) and 376(DA) of the Indian
Penal Code and Section 6 of the POCSO Act, 2012 was taken
against the appellant and the matter was fixed for preliminary
assessment of the appellant in view of his age and the nature of
the alleged offence. Vide order dated 22.02.2020, preliminary
assessment of the appellant was made, as per which the
appellant was found to be capable to committ the alleged
Patna High Court CR. REV. No.233 of 2021 dt.16-04-2025
offence and able to understand the consequences and nature of
the offence allegedly committed by him. Hence, the matter was
transferred to the Children Court, Gaya for his trial as adult.
Subsequently charge was framed and trial is going on, which is
at the stage of prosecution evidence.
5. In regard to the bail application, it transpires that
by the order dated 28.03.2019, learned J.J. Board has rejected
the application of the appellant for releasing him on bail holding
as follows:
" A perusal of the record shows that this case has
been instituted U/S 395, 376 (d) 376 (3), 376 (DA), 397
IPC & 6 POSCO Act. 2012 against unknown person &
after completion of enquiry the IO has found the
indulgence of 12 accused including CICL Nitish Kumar
submitted Charge-Sheet against CICL u/s 395, 397,
376(d), 376(3), 376(DA), 412, 120(b) IPC & 4/6 POCSO
Act. The informant & victim girl in her statement u/s 164
Cr.PC, has supported not only the allegation aforesaid
section but also the allegation of group rape against the
unknown accused persons. Witness Rambilash Paswan,
Sita Devi & Vicky Paswan accept the name of CICL
Nitish Kumar & other accused persons in the Case-diary.
A perusal of the SIR shows that there is lack of proper
control by the Guardian over the CICL due to which the
CICL is in the company of wrong people & is in habit of
taking his own decision without proper guidance. It has
also been found that the CICL actively extended support
to his friend. If the CICL is released on bail he would be
exposed to Physical & Psychological danger due to such
hatred.
After considering the material collected after inquiry, the
SIR this Board is of the opinion that the if CICL Nitish
Kumar be released on bail there are chances of exposing
him to physical mental & Psychological danger hence his
bail petition is hereby Rejected"
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6. Against the rejection order, the appellant
preferred Criminal Appeal (Juvenile) No. 32 of 2019 in the
Court of Special Judge (Children Court), Gaya, but even the
Children Court by the impugned order dated 16.12.2020
refused to enlarge the appellant on bail, holding as follows:
"7. From perusal of the case record and case diary, it
appears that the gist of allegation against the appellant is
that he intercepted the informant along with the co-
accused on the way when he was going to his village
along with his wife and daughter on motorcycle and
threatened the informant of dire consequences and
committed rape upon his daughter and wife and also
robbed two thousand rupees and ornaments of his wife of
the Informant.
It is settle principle of law that in granting bail to the
juvenile the prime consideration is the reasonable
estimation of threat perception, especially physical and
psychological, to which the juvenile may be exposed
when released on bail and in this regard the antecedent,
activities, behaviour and company of the juvenile is to be
considered primarily. In the instant case, the para 117 of
the case dairy reveals that during course of investigation,
police recovered are country made pistol from home of the
appellant with two live cartridges. All the other accused
persons of the case are well known to the appellant and
material available on the record clearly indicates that
appellant/C.I.C.L. has been actively participating in their
illegal activities. The brutality and professionalism shown
by the accused person including this appellant in
committing the occurrence, clearly indicates that they are
habitual offender and the appellant/C.I.C.L. have bad
company of such offender. Co-accused Hirday Paswan,
Nawlesh Paswan, Prakash Paswan and other co-accused
persons specifically stated about the involvement of the
appellant in the occurrence. Other co-accused of the case
have criminal antecedent and they are involved in so many
occurrences of serious nature. From the perusal of the
social investigation report, it appears that father of the
appellant has criminal antecedent and he had also gone to
jail. Appellant has left his education. He belongs to
uneducated family. He is a man of negative thinking and
have bad company. He takes decision at his own and have
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no proper guardianship Thus, in view of the above
discussed facts circumstances, it appears that the appellant
has bad company of habitual criminals and in order to
insure a healthy future of the appellant, I do not find it
proper to enlarge him on bail at this stage of trial and
allowing this appeal would defeat the ends of justice and
the purpose of reform in the appellant would not take
place and his release would also be against the interest of
the C.I.C.L./appellant and there is also chance of moral,
physical and psychological danger to the
C.I.C.L./appellant. So, I do not find any illegality in the
order dated 28.03.2019 of the J.J.B., Gaya passed in
Konch P.S. Case No. 195/2018."
7. Being aggrieved by the Appellate order, the
appellant has preferred the present revision petition.
8. I heard learned counsel for the appellant and
learned APP for the State.
9. Learned counsel for the petitioner submits that
the impugned judgment is not sustainable in the eye of law.
Learned Appellate Court below has erroneously dismissed the
appeal on irrelevant consideration. He further submits that the
impugned judgment is also based on surmises and conjecture.
10. However, learned A.P.P. for the State defends the
impugned judgment submitting that there is no illegality or
infirmity in the same and the present petition is, accordingly,
liable to be dismissed.
11. Before I consider the rival submissions of the
parties, I deem it proper to refer to Section 12 of the Juvenile
Justice (Care and Protection of Children) Act, 2015, which deals
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with bail to juveniles. Section 12 of the Act reads as follows:
"12. Bail to a person who is apparently a child
alleged to be in conflict with law.-(1) When any person,
who is apparently a child and is alleged to have committed
a bailable or non-bailable offence, is apprehended or
detained by the police or appears or brought before a
Board, such person shall, notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of
1974) or in any other law for the time being in force, be
released on bail with or without surety or placed under the
supervision of a probation officer or under the care of any
fit person:
Provided that such person shall not be so released if
there appears reasonable grounds for believing that the
release is likely to bring that person into association with
any known criminal or expose the said person to moral,
physical or psychological danger or the person's release
would defeat the ends of justice, and the Board shall
record the reasons for denying the bail and circumstances
that led to such a decision.
(2) When such person having been apprehended is
not released on bail under subsection (1) by the officer-in-
charge of the police station, such officer shall cause the
person to be kept only in an observation home ¹[or a place
of safety, as the case may be,] in such manner as may be
prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under
sub-section (1) by the Board, it shall make an order
sending him to an observation home or a place of safety,
as the case may be, for such period during the pendency of
the inquiry regarding the person, as may be specified in
the order.
(4) When a child in conflict with law is unable to
fulfil the conditions of bail order within seven days of the
bail order, such child shall be produced before the Board
for modification of the conditions of bail."
(Emphasis Supplied)
12. From perusal of Section 12 of the J.J. Act, 2015, it
clearly emerges that Section 12 of the Act overrides the bail
provisions as contained in the Criminal Procedure Act, 1973 or
any other law for time being in force. It further emerges that as
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per Section 12 of the Act, bail to the Juvenile is a rule and
refusal of the same is an exception and Juvenile can be denied
bail only on the following three grounds: (i) if there appears
reasonable grounds for believing that the release is likely to
bring that person into association with any known criminal, or,
(ii) expose the said person to moral, physical or psychological
danger, or, (iii) the person's release would defeat the ends of
justice.
13. It also emerges that seriousness of the alleged
offence or the age of the juvenile are also no relevant
considerations for denial of bail under Section 12 of the J.J. Act.
Even the child who is 16 years or above 16 years of age and is
alleged to have committed a heinous offence is also entitled to
get bail under Section 12 of the Act, 2015. There is no
classification, whatsoever, provided in Section 12 of the Act,
2015 in regard to grant of bail. Section 12 is applicable to all
juveniles in conflict with law without any discrimination of any
nature. (Also refer to Lalu Kumar @ Lal Babu Vs. State of
Bihar, 2019 (6) BLJ 2016).
14. Here, it would be also pertinent to point out that
the ends of justice as used in the proviso to Section 12(1) of the
J.J. Act is drastically different to one as used in the context of
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penal statutes. The ends of justice in the context of any Act is
ascertained on the basis of the purpose and object of that Act
and the objective of the J.J. Act is to reform and rehabilitate the
juveniles and not to punish them, as emerges from the preamble
to the J.J. Act, which reads as follows:
"An Act to consolidate and amend the law
relating to children alleged and found to be in conflict
with law and children in need of care and protection by
catering to their basic needs through proper care,
protection, development, treatment, social reintegration,
by adopting a child-friendly approach in the adjudication
and disposal of matters in the best interest of children and
for their rehabilitation through processes provided, and
institutions and bodies established, hereinunder and for
matters connected therewith or incidental thereto."
(Emphasis Supplied)
15. The purpose and object of the J.J. Act manifests
in Section 3 also of the J.J. Act, providing for general principles
to be followed in the administration of the Act. Section 3 of the
Act reads as follows:
"3. General principles to be followed in administration
of Act. The Central Government, the State Governments,
the Board, and other agencies, as the case may be, while
implementing the provisions of this Act shall be guided by
the following fundamental principles, namely:--
..................................................................
(iv) Principle of best interest: All decisions regarding the
child shall be based on the primary consideration that they
are in the best interest of the child and to help the child to
develop full potential.
.....................................................................
(vi) Principle of safety: All measures shall be taken to
ensure that the child is safe and is not subjected to any
harm, abuse or maltreatment while in contact with the care
and protection system, and thereafter.
(vii) Positive measures: All resources are to be mobilised
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including those of family and community, for promoting
the well-being, facilitating development of identity and
providing an inclusive and enabling environment, to
reduce vulnerabilities of children and the need for
intervention under this Act.
(viii) Principle of non-stigmatising semantics: Adversarial
or accusatory words are not to be used in the processes
pertaining to a child."
(Emphasis supplied)
16. The J.J. Act is based on the belief that children are
the future of the society and in case they go into conflict with
law under some circumstances, they should be reformed and
rehabilitated and not punished. No society can afford to punish
its children. Punitive approach towards children in conflict with
law would be self-destructive for the society.
17. As such, if the keeping of the child in custody is
helpful in his development and rehabilitation or protection, only
then it could be said that release of the child would defeat the
ends of justice. (Also refer to Abhishek Vs. State, 205 CriLJ
(NOC) 115 (Delhi) and Manoj Vs. State (NCT of Delhi, 2006
CriLJ 4759).
18. It also emerges from Section 3 of the Act that
Reformatory or Observation Home is only one of the measures
contemplated by our legislature for reforming and rehabilitating
the delinquent children. However, the family of the child in
conflict with law has been considered by the legislature as the
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best and first desirable institution to achieve the object of the
Act. Hence, the primary responsibility of care and protection of
the child has been given to the biological family or adoptive or
foster parents of the child and it has been contemplated that
every child in conflict with law has right to be reunited with his
family at the earliest. Institutionalization of a juvenile in conflict
with law has been contemplated as the last resort. Such
principles manifest in clauses v, xii and xiii of Section 3 of the
Act which read as follows:
"3. General principles to be followed in administration
of Act. The Central Government, the State Governments,
the Board, and other agencies, as the case may be, while
implementing the provisions of this Act shall be guided by
the following fundamental principles, namely:--
..................................................................
(v) Principle of family responsibility: The primary
responsibility of care, nurture and protection of the child
shall be that of the biological family or adoptive or foster
parents, as the case may be.
...................................................................
(xii) Principle of institutionalisation as a measure of last
resort: A child shall be placed in institutional care as a step
of last resort after making a reasonable inquiry.
(xiii) Principle of repatriation and restoration: Every child
in the juvenile justice system shall have the right to be re-
united with his family at the earliest and to be restored to
the same socio-economic and cultural status that he was
in, before coming under the purview of this Act, unless
such restoration and repatriation is not in his best
interest."
(Emphasis Supplied)
19. As such, Section 12 of the J.J. Act is in
consonance with the purpose and object of the Act, providing
for mandatory bail to a juvenile in conflict with law unless the
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grounds as provided in the proviso to Section 12(1) of the Act
is/are present, so that the child is re-united with his family at the
earliest opportunity and the protection, development,
reformation and rehabilitation of the child is ensured.
20. Hence, under the J.J. Act, 2015, a child in conflict
with law is not expected to be treated as an adult offender. J.J.
Boards/Courts are required to adopt fundamentally a different
approach while dealing with juveniles in conflict with law. They
are expected to deal with such juveniles with all sensibility and
responsibility, keeping in mind the purpose and object of the J.J.
Act to reform and rehabilitate the child, so as to make him a
responsible and productive member of the society. The society
would get ruined if such children are dealt with punitive
approach.
21. Coming to the case on hand, I find that learned J.J.
Board has dismissed the application of the appellant for bail on
the ground that his guardian has no control over him and is in
habit of taking his own decision without proper guidance and he
is in the company of wrong people. It has been also observed by
learned J.J. Board that if the appellant is released on bail, he
would be exposed to physical and psychological danger due to
hatred prevailing in the society.
Patna High Court CR. REV. No.233 of 2021 dt.16-04-2025
22. I further find that learned Children Court has also
refused to enlarge the appellant on bail, observing that during
investigation, one country made pistol and two live cartridges
were recovered from his house and he has been actively
participating in illegal activities. He has also taken into
consideration the "brutality and professionalism shown by the
accused persons and the appellant in committing the offence." It
has been also observed that the accused persons including the
appellant is a habitual offender and they are also in the bad
company of offenders. The father of the appellant has criminal
antecedents and he is in jail. The appellant belongs to an
uneducated family and he has also stopped pursuing studies.
23. However, I find that the observation made by
learned J.J. Board as well as learned Children Court are not in
consonance with the Social Investigation Report and the
statement of the mother of the appellant as made during inquiry
proceeding for determination of the age of the appellant. In her
statement, the mother of the appellant, Sugi Devi, has stated that
she has three children and the appellant is the eldest one and he
dropped out from school after passing out from Class-V and
started helping her in cultivation.
24. From the perusal of the Social Investigation
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Report, it also transpires that the appellant belongs to a poor and
uneducated family belonging to a Scheduled Caste community
and on account of poverty of his family, he was constrained to
drop out from the school after passing out class-V so as to help
his family in cultivation for sustenance. He is unmarried and the
eldest son of his parents. He has no criminal antecedents. The
observation of the Court below that he was involved in illegal
activities is based on conjecture and surmises without any basis.
25. The observation of the Court below that the
Appellant is in bad company is also unfounded. No specific
information has been provided in the Social Investigation
Report in support of such observation. From the statement of the
mother of the appellant, it transpires that his family is very poor,
struggling for its sustenance and the Appellant was helping his
mother to maintain the family.
26. I further find that the appellant was not named in
the FIR and the FIR was lodged against unknown persons and
no specific allegation is made against the appellant. The whole
case is based on suspicion without any cogent evidence to show
the involvement of the appellant in the alleged offence.
27. There is also nothing on record to show that if the
Appellant is released on bail, he will be exposed to moral,
Patna High Court CR. REV. No.233 of 2021 dt.16-04-2025
physical and psychological danger. There is also no material on
record to suggest that he was a member of criminal gang and his
release would bring him in association with such criminals.
28. On the contrary, I find that the Appellant was
acting as a responsible member of his family. He, despite being
a minor, was helping his mother to maintain the family. He has
dropped out from school only on account of financial difficulty
of the family and to help his mother in cultivation so that her
mother could maintain the family.
29. Though it has come on record that the father of the
appellant has criminal antecedent and he is in jail, there is no
such criminal antecedents of his mother, who is a housewife and
doing cultivation for sustaining her family and the appellant was
helping her in her effort to maintain the family.
30. As such, I find that no ground is made out to deny
bail to the Appellant. In fact, I find that release of the Appellant
on bail would be in the best interest of the child if he is provided
with education and District Administration helps his family as
per the State Welfare Schemes to tide over his financial
hardship.
31. Hence, the impugned judgment dated 16.12.2020
passed by learned Special Judge (Children Court), Gaya and the
Patna High Court CR. REV. No.233 of 2021 dt.16-04-2025
Order dated.28.03.2019 passed by learned J.J. Board are not
sustainable in the eye of law.
32. The appeal is, accordingly, allowed, directing
release of the Appellant on bail, subject to furnishing a bail bond
of Rs. 10,000/- by his mother and undertaking by her by way of
an affidavit that the appellant would not come into contact with
any criminal and he would restart his education through open
school or otherwise and his developmental needs would be
taken care of, and he would attend the J.J. Board and courts as
and when required or directed.
33. The District Magistrate, Gaya is also directed to
ensure that the family of the Appellant has ration card and
Aadhar card and it gets supply of food grains at subsidized rate
from the Public Distribution System as per the government
schemes. The District Magistrate is also directed to ensure that
if the family of the Appellant fulfills the conditions for getting
financial assistance for construction of house or loan for animal
husbandry, it gets such financial assistance and loan.
34. Secretary, Gaya District Legal Services Authority
is also directed to provide needful assistance to the Appellant in
getting Ration Card, Aadhar card and financial assistance for
house and animal husbandry, in collaboration with the District
Patna High Court CR. REV. No.233 of 2021 dt.16-04-2025
Magistrate. Secretary, DLSA, Gaya is also directed to provide
assistance to the Appellant in getting admission in open school
or other educational institutions, so that the Appellant could
restart his education. A copy of this judgment/order be sent to
the Court below, the District Magistrate, Gaya and Secretary
DLSA, Gaya for their information and needful.
35. A copy of this judgment/order be also circulated
amongst the Presiding Officers of the J.J. Boards and Children
Courts of the State of Bihar. A copy of this judgment/order be
also sent to the Bihar Judicial Academy for discussion in the
training programmes for the Presiding Officers of the J.J.
Boards and Children Courts.
36. Lower Court Records be sent back to the Courts
concerned.
(Jitendra Kumar, J.)
Chandan/
Ravishankar
AFR/NAFR A.F.R
CAV DATE 07.04.2025
Uploading Date 16.04.2025
Transmission Date 16.04.2025
