Patna High Court
Md. Sohail vs The State Of Bihar on 17 July, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.899 of 2025
In
CRIMINAL REVISION No.872 of 2024
Arising Out of PS. Case No.-1042 Year-2023 Thana- FORBESGANJ District- Araria
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Md. Sohail S/O Md. Tabrez @ Md. Tabrej R/O Village- Dhowabari, Ward No.
14, P.S- Kursakanta, Distt.- Araria represented through and under the
guardianship of father and natural guardian namely, Md. Tabrez @ Md. Tabrej
Gender Male Aged about 49 years, S/O Md. Masleuddin, R/O Ward No. 14,
Dhowabari, P.S- Kursakanta, Distt.- Araria.
... ... Appellant/s
Versus
1. The State of Bihar
2. Fulansar D/O Ammo R/O Village- Dhowabari, Ward No. 1, P.S- Kursakanta,
Distt.- Araria represented through and under the guardianship of father and
natural guardian Ammo.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Kumar Ravish
For the Respondent/s : Mr.Shailendra Kumar
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL JUDGMENT
Date : 17-07-2025
1. The instant appeal under Section 101 (5) of the
Juvenile Justice (Care and Protection of Children) Act, 2015
has been filed, assailing the order of rejection of bail by
Children's Court on the ground that the CICL was charged
with the offence of POCSO Act and he required to be tried
under the said Act.
2. It is urged on behalf of the prosecution that
Section 34 of the POCSO Act lays down the procedure in case
of commission of offence by child and determination of his
age.
3. Section 34 of the POCSO Act runs thus: -
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
"34. Procedure in case of
commission of offence by child and
determination of age by Special Court.
(1) Where any offence under this
Act is committed by a child, such child shall
be dealt with under the provisions of 1[the
Juvenile Justice (Care and Protection of
Children) Act, 2015 (2 of 2016)].
(2) If any question arises in any
proceeding before the Special Court
whether a person is a child or not, such
question shall be determined by the Special
Court after satisfying itself about the age of
such person and it shall record in writing
its reasons for such determination.
(3) No order made by the Special
Court shall be deemed to be invalid merely
by any subsequent proof that the age of a
personas determined by it under sub-
section (2) was not the correct age of that
person."
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
4. Thus, it is submitted on behalf of the prosecution
that if a child under the age of 18 years is an accused under
POCSO Act, the said Court under the POCSO Act is
empowered to adjudicate and decide the age of the accused in
the manner contemplated in the Juvenile Justice (Care and
Protection of Children) Act, 2015 and trial of such offence
shall be held by the said Court under POCSO Act.
5. This issue came up for consideration before the
Hon'ble Supreme Court in Thirumoorty v. State, represented
by the Inspector of Police, reported in 2024 SCC OnLine SC
375. It is held by the Hon'ble Supreme Court in Paragraph 27
of the said judgment: -
"27. Thus, there is no escape from
the conclusion that even before the result of
investigation was filed, the fact regarding
the accused being a CICL was well known
to the Investigating Officer (PW-25), the
prosecution and the trial Court as well."
6. The Hon'ble Apex Court next reproduced the
General principles to be followed in administration of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
As laid down by the Hon'ble Apex Court, Section 3 states
thus: -
"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:-
(i) Principle of presumption of
innocence : Any child shall be presumed to
be an innocent of any mala fide or criminal
intent up to the age of eighteen years.
(ii) Principle of dignity and
worth : All human beings shall be treated
with equal dignity and rights.
(iii) Principle of participation :
Every child shall have a right to be heard
and to participate in all processes and
decisions affecting his interest and the
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
child's views shall be taken into
consideration with due regard to the age
and maturity of the child.
(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.
(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.
(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.
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
(vii) Positive measures : All
resources are to be mobilised 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.
(ix) Principle of non-waiver of
rights : No waiver of any of the right of the
child is permissible or valid, whether
sought by the child or person acting on
behalf of the child, or a Board or a
Committee and any non-exercise of a
fundamental right shall not amount to
waiver.
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
(x) Principle of equality and non-
discrimination : There shall be no
discrimination against a child on any
grounds including sex, caste, ethnicity,
place of birth, disability and equality of
access, opportunity and treatment shall be
provided to every child.
(xi) Principle of right to privacy
and confidentiality : Every child shall have
a right to protection of his privacy and
confidentiality, by all means and
throughout the judicial process.
(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
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
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.
(xiv) Principle of fresh start : All
past records of any child under the Juvenile
Justice system should be erased except in
special circumstances.
(xv) Principle of diversion :
Measures for dealing with children in
conflict with law without resorting to
judicial proceedings shall be promoted
unless it is in the best interest of the child
or the society as a whole.
(xvi) Principles of natural
justice : Basic procedural standards of
fairness shall be adhered to, including the
right to a fair hearing, rule against bias
and the right to review, by all persons or
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
bodies, acting in a judicial capacity under
this Act."
7. Section 9 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 lays down the procedure to
be followed by a Magistrate who has not been empowered
under this Act. Section 9 runs thus: -
"9. Procedure to be followed by a
Magistrate who has not been empowered
under this Act.-- (1) When a Magistrate,
not empowered to exercise the powers of
the Board under this Act is of the opinion
that the person alleged to have committed
the offence and brought before him is a
child, he shall, without any delay, record
such opinion and forward the child
immediately along with the record of such
proceedings to the Board having
jurisdiction.
(2) In case a person alleged to
have committed an offence claims before a
court other than a Board, that the person is
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
a child or was a child on the date of
commission of the offence, or if the court
itself is of the opinion that the person was a
child on the date of commission of the
offence, the said court shall make an
inquiry, take such evidence as may be
necessary (but not an affidavit) to
determine the age of such person, and shall
record a finding on the matter, stating the
age of the person as nearly as may be:
Provided that such a claim may
be raised before any court and it shall be
recognised at any stage, even after final
disposal of the case, and such a claim shall
be determined in accordance with the
provisions contained in this Act and the
rules made thereunder even if the person
has ceased to be a child on or before the
date of commencement of this Act.
(3) If the court finds that a person
has committed an offence and was a child
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
on the date of commission of such offence,
it shall forward the child to the Board for
passing appropriate orders and the
sentence, if any, passed by the court shall
be deemed to have no effect.
(4) In case a person under this
section is required to be kept in protective
custody, while the person's claim of being a
child is being inquired into, such person
may be placed, in the intervening period in
a place of safety.
(emphasis supplied)
8. Section 15 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 deals with the preliminary
assessment into heinous offences by Board, which runs
hereunder: -
"15. Preliminary assessment into
heinous offences by Board.-- (1) In case
of a heinous offence alleged to have been
committed by a child, who has completed
or is above the age of sixteen years, the
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
Board shall conduct a preliminary
assessment with regard to his mental and
physical capacity to commit such offence,
ability to understand the consequences of
the offence and the circumstances in which
he allegedly committed the offence, and
may pass an order in accordance with the
provisions of subsection (3) of section 18:
Provided that for such an
assessment, the Board may take the
assistance of experienced psychologists or
psycho-social workers or other experts.
Explanation. --For the purposes
of this section, it is clarified that
preliminary assessment is not a trial, but is
to assess the capacity of such child to
commit and understand the consequences
of the alleged offence.
(2) Where the Board is satisfied
on preliminary assessment that the matter
should be disposed of by the Board, then
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
the Board shall follow the procedure, as far
as may be, for trial in summons case under
the Criminal Procedure Code, 1973:
Provided that the order of the
Board to dispose of the matter shall be
appealable under sub-section (2) of section
101:
Provided further that the
assessment under this section shall be
completed within the period specified in
section 14."
9. Section 18 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 speaks about orders
regarding child found to be in conflict with law. Section 18
runs as hereunder: -
"18. Orders regarding child
found to be in conflict with law.--(1)
Where a Board is satisfied on inquiry that a
child irrespective of age has committed a
petty offence, or a serious offence, or a
child below the age of sixteen years has
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
committed a heinous offence, then,
notwithstanding anything contrary
contained in any other law for the time
being in force, and based on the nature of
offence, specific need for supervision or
intervention, circumstances as brought out
in the social investigation report and past
conduct of the child, the Board may, if it so
thinks fit,-
(a) allow the child to go home
after advice or admonition by following
appropriate inquiry and counselling to such
child and to his parents or the guardian;
(b) direct the child to participate
in group counselling and similar activities;
(c) order the child to perform
community service under the supervision of
an organisation or institution, or a
specified person, persons or group of
persons identified by the Board;
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
(d) order the child or parents or
the guardian of the child to pay fine:
Provided that, in case the child is
working, it may be ensured that the
provisions of any labour law for the time
being in force are not violated;
(e) direct the child to be released
on probation of good conduct and placed
under the care of any parent, guardian or
fit person, on such parent, guardian or fit
person executing a bond, with or without
surety, as the Board may require, for the
good behaviour and child's well-being for
any period not exceeding three years;
(f) direct the child to be released
on probation of good conduct and placed
under the care and supervision of any fit
facility for ensuring the good behaviour
and child's well-being for any period not
exceeding three years;
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
(g) direct the child to be sent to a
special home, for such period, not
exceeding three years, as it thinks fit, for
providing reformative services including
education, skill development, counselling,
behaviour modification therapy, and
psychiatric support during the period of
stay in the special home:
Provided that if the conduct and
behaviour of the child has been such that, it
would not be in the child's interest, or in the
interest of other children housed in a
special home, the Board may send such
child to the place of safety.
(2) If an order is passed under
clauses (a) to (g) of sub-section (1), the
Board may, in addition pass orders to-
(i) attend school; or
(ii) attend a vocational training
centre; or
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
(iii) attend a therapeutic centre;
or
(iv) prohibit the child from
visiting, frequenting or appearing at a
specified place; or
(v) undergo a de-addiction
programme.
(3) Where the Board after
preliminary assessment under section 15
pass an order that there is a need for trial
of the said child as an adult, then the Board
may order transfer of the trial of the case to
the Children's Court having jurisdiction to
try such offences."
10. Section 19 deals with the powers of the
Children's Court, which runs as hereunder: -
"19. Powers of Children's Court.
--(1) After the receipt of preliminary
assessment from the Board under Section
15, the Children's Court may decide that-
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
(i) there is a need for trial of the
child as an adult as per the provisions of
the Criminal Procedure Code, 1973 (2 of
1974) and pass appropriate orders after
trial subject to the provisions of this section
and Section 21, considering the special
needs of the child, the tenets of fair trial
and maintaining a child friendly
atmosphere;
(ii) there is no need for trial of the
child as an adult and may conduct an
inquiry as a Board and pass appropriate
orders in accordance with the provisions of
Section 18.
(2)-(5).........."
11. Thus it is held by the Hon'ble Supreme Court in
Thirumoorthy (supra) that trial of a CICL shall be conducted
under the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2015 and not under the POCSO
Act.
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
12. In view of aforesaid decision passed by the
Hon'ble Supreme Court, this Court has no other alternative
but to hold that a CICL involved in a case under the POCSO
Act shall be dealt with either by the Juvenile Justice Board or
by the Children's Court as per the provision of the Juvenile
Justice (Care and Protection of Children) Act, 2015.
13. In view of the above decision, this Court takes
up the instant appeal for determination.
14. Both the appellant and the victim are admittedly
juveniles, while the victim was about 13 years and a few
months old on the date of the commission of the offence. It
appears from the order passed by the Juvenile Justice Board,
as well as the Children's Court, that there was some love affair
between the appellant and the victim.
15. This Court, primarily fails to ascertain as to
whether there would be love affair of a 17/18 years girl with a
boy who is younger by 4/5 years than the girl. Be that as it
may, the FIR disclosed a story of penetrative sexual assault
against the appellant which took place in the house of the
grandmother of the victim. From the third paragraph of the
order passed in Forbesganj P.S. Case No. 1042 of 2023/ JJB
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
No. 17 of 2024, it is found that the friends of the CICL could
not state anything about the incident, as the alleged incident
took place about 12 km away from the place of residence of
the appellant. However, the friends of the appellant stated that
there was a love relationship between the parties. The Juvenile
Justice Board held that if the appellant is released on bail at
this stage, there may be chances of re-occurrence of such
incidents because both the appellant and the victim are of
immature mental state. There was no rule of discipline in the
house of the appellant. The appellant suffers from a lack of
education, morality, and responsibility.
16. The Children's Court, practically, rejected the
prayer for bail only relying on the proviso to Section 12 of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
If the appellant has lack of education, it is due to the lack of
academic facilities which the State is required to provide even
in the remotest corner of the village. If the appellant suffers
from lack of discipline, it is the act of the parents who failed
to take care of the appellant.
17. The appellant cannot be blamed for this,
specially when the allegation against the appellant was having
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
a consensual sex with a girl who is about 5/5 years older than
him. This Court is absolutely aware that physical relationship
by minors cannot be defended on the ground of consensual
sex but this is a circumstance which the Court must take into
consideration at the time of adjudication of the application for
bail. It appears from the record that even a local settlement
was attempted for solemnization of marriage between the
appellant and the victim but, it failed. The Social Investigation
Report does not disclose that the appellant mixes up with
known criminals of the locality.
18. For the reasons stated above, I am inclined to
release the above-named appellant on bail, on furnishing bail
bonds of Rs. 25,000/- (twenty-five thousand) with two
sureties of the like amount each, to the satisfaction of the
learned Additional District and Sessions Judge 1st-cum-
Special Judge, Children's Court at Araria, in Juvenile Justice
Board Case No. 17 of 2024, arising out of Forbesganj P.S.
Case No. 1042 of 2023, with the condition that one of the
bailors must be either of the parents of the appellant. It is
further directed that, if released on bail, the appellant shall
remain under the care and protection of his parents and under
Patna High Court CR. APP (SJ) No.899 of 2025 dt.17-07-2025
the supervision of the Probation Officer. The Probation
Officer is directed to file a quarterly report before the
concerned Children's Court regarding the antecedents of the
appellant. If any adverse report is filed, the order of bail shall
be cancelled without further reference to the Bench.
19. With the aforesaid direction, the instant appeal
stands disposed of.
(Bibek Chaudhuri, J)
Suraj Dubey/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 18.07.2025
Transmission Date 18.07.2025
