Patna High Court
Arvind Ram @ Chhotak Ram vs The State Of Bihar on 17 July, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2942 of 2024
Arising Out of PS. Case No.-1 Year-2021 Thana- MAHILA PS District- Buxar
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Arvind Ram @ Chhotak Ram S/o Budhan Ram R/o vill - Chakani, P.S. -
Simri, Distt. - Buxar
... ... Appellant/s
Versus
1. The State of Bihar
2. Khushbu Kumari D/O Sriniwas Ram R/O Vill.- Chakani, P.s.- Simri, Dist.-
Buxar.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Anand Kumar Ojha
For the Respondent/s : Ms. Anita Kumari Singh
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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: -
"34. Procedure in case of
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
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."
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
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
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. As laid down by the Hon'ble Apex Court, Section 3
states thus: -
"3. General principles to be
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
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
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
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
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.
(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
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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.
(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
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
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.
(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 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
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
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 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:
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
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 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
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
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 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.
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
(2) Where the Board is satisfied
on preliminary assessment that the matter
should be disposed of by the Board, then
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.2942 of 2024 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;
(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
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
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;
(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
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
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
(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: -
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
"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-
(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.2942 of 2024 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. The appellant was arrested in connection with
Buxar (Mahila) P.S. Case No. 01 of 2021, dated 9 th of
January, 2021, instituted for the offences, punishable under
Section 376 of the Indian Penal Code and Section 4/6 of the
POCSO Act.
15. The appellant claimed that on the date of
occurrence, he was aged about 15 years, 5 months and 15
days as per the transfer certificate issued by the school. In
the transfer certificate, the name of the appellant was stated
as Chhotak Ram but in the memorandum of appeal, his
name was recorded as Arvind Ram & Chhotak Ram.
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
16. The appellant previously filed an appeal,
bearing Cr. Appeal (SJ) No. 1247 of 2023, which was
disposed of by a Co-ordinate Bench on 1st of February,
2024. While disposing of the appeal, the Co-ordinate Bench
held that instead of determining the questions whether the
appellant is child or not in view of Section 34 of the
POCSO Act, the learned Trial Court prima facie decided the
identification of the appellant. Moreover, the ossification
test report was also ignored. Therefore, the order, dated 3 rd
of December, 2022 passed by the leaned ADJ-VI-cum-
Special Judge POCSO Act, Buxar in POCSO Case No. 01
of 2021 was quashed and set aside. The Trial Court was
directed to come to a finding as to the age of the appellant.
17. The ossification test report of the appellant
was done and the medical report suggests that the age of the
appellant appears to be around 18 and 19 years.
18. In view of the ossification test report, this
Court finds that there is clear discrepancies between the
transfer certificate of the school and the ossification test
report in respect of the age of the victim and under such
circumstances, the transfer certificate issued by the school
Patna High Court CR. APP (SJ) No.2942 of 2024 dt.17-07-2025
authority cannot be relied upon. The appellant is held to be
more than 18 years of age and not a child within the
definition of Section 2(12) of the Juvenile Justice (Care and
Protection of Children) Act, 2015.
19. Therefore, the instant appeal is not
maintainable and the same is dismissed.
20. It is directed that the petitioner be tried before
the POCSO Act.
(Bibek Chaudhuri, J)
skm/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 18.7.2025
Transmission Date 18.7.2025
