Uttarakhand High Court
Preetam Singh --Applicant/ vs State Of Uttarakhand on 15 October, 2025
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE HON'BLE CHIEF JUSTICE MR. G. NARENDAR
AND
THE HON'BLE JUSTICE MR. SUBHASH UPADHYAY
Bail Application (IA No.1/2023)
IN
Criminal Appeal No.746 of 2023
15th October, 2025
Preetam Singh --Applicant/Appellant
Versus
State of Uttarakhand --Respondent
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Presence:-
Ms. Divya Jain and Ms. Shweta Jain, learned counsel for the
applicant/appellant.
Mr. J. S. Virk, learned Deputy Advocate General along with Mr. Rakesh
Joshi, learned Brief Holder for the State.
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G. NARENDAR, C.J.
ORDER
Heard learned counsel for the
applicant/appellant and learned Deputy Advocate
General for the State.
2. Learned Deputy Advocate General would
vehemently oppose the bail application on the ground
that the minor has found to be guilty of commission of
heinous offence but fairly admit the law as laid down by
the Hon'ble Apex Court. However, he relied on the
judgment passed by the Hon'ble Apex Court in the case
of Om Prakash @ Israel @ Raju @ Raju Das Vs. Union
of India and Another reported in (2025) 1 S.C.R.
wherein the Hon'ble Apex Court held as under:
PLEA OF JUVENILITY VIS-A-VIS 'FINAL
DISPOSAL'
21. We place emphasis on the words "even after the
final disposal of the case" in Section 9(2) of the
2015 Act. As stated, this provision being the
heart and soul of the entire Act, must be given its
fullest meaning and interpretation. If the offence
is committed by a child, it cannot be treated
otherwise than as provided under the 2015 Act.
After finding out the truth, necessary
consequences must follow. In a country like ours,
where society is fragmented due to various
reasons including, but not limited to illiteracy and
poverty, the role which is assigned to the Court
assumes great significance. Sufficient
opportunities must be given to the child in
conflict with law to get the benefit of the 2015
Act.
22. Merely because a casual adjudication has taken
place, it does not mean that a plea of juvenility
cannot be raised subsequently. This is for the
simple reason that the plea of juvenility has not
attained finality. So long as the right of a party
subsists, one can never say that finality has been
attained. In a case where a plea has been raised,
but not adjudicated upon, the decision rendered
thereunder would not amount to attaining
finality. Likewise, when such a plea is not treated
as one under Section 9(2) of the 2015 Act in
compliance with the procedural mandate
specified thereunder, an order rejecting such a
plea would not be termed as a final one. To put it
differently. even assuming a plea of juvenility
was raised but not considered appropriately at
the time of disposal of a Special Leave
Petition/Statutory Criminal Appeal, a Review
Petition, or a Curative Petition thereafter, it
would not bar a competent Court from deciding
the said issue by following due procedure. We
make it clear that if an adjudication is based on
due determination, then there may not be any
room for another round of litigation. But, in a
case where the plea was not treated as an
application under Section 9(2) of the 2015 Act
and, the procedure mandated thereunder was not
followed, the principle as aforesaid would
certainly apply as the right of raising the plea of
juvenility has not ceased and, therefore, subsists.
23. Since the need for taking care of a juvenile in
conflict with law is mandated by the Constitution,
the role of the constitutional Courts is significant.
Even after the dismissal of a Special Leave
Petition/Statutory Criminal Appeal followed by
incidental proceedings before this Court, where
the plea of juvenility was not consciously
considered, there would be no bar on the
constitutional Courts to consciously take a deeper
look. Doing so is not an exercise of the powers
conferred under Articles 32, 136 or 226 of the
Constitution, but an act in fulfilment of a
mandated duty enjoined upon the Courts, to give
effect to the laudable objective of a social welfare
legislation...."
3. The charges against the appellant are as
under:
1) On 24.07.2020 at 23:30 p.m., at place
railway track, near Mohkammapur in between
Flyover and Harrawala, P.S. - Nehru Colony,
District Dehradun, you child in conflict with
law had raped the minor victim by abducting
her thus an offence was committed by you,
which his punishable under Section 376 of the
IPC and is triable by this Court.
2) Secondly, on the above alleged day, time
and place, you child in conflict with law had
raped the minor victim and assaulted her with
penetrative assault thus an offence was
committed by you, which is punishable under
Section 3 and 4 of the POCSO Act and is in the
knowledge of this Court.
4. The case of the prosecution is that a letter
was addressed by the Administrator of the Home, where
the victim aged about 16 years D/o Shahnawaz R/o
Shahangaon, Police Station Amor Baya, Jalalgarh,
District Purnia, Bihar, was lodged, stating that the victim
had escaped from the Government Girls Niketan,
Dehradun on 24.07.2020 at 10:00 a.m. and was later
recovered on 26.07.2020; that after the victim was
handed over to the custody of the Government Girls
Niketan and on questioning, she informed the
authorities at Government Girls Niketan that one boy by
name Preetam had done wrong things with her on the
night of 24.07.2020 at around 11:30 p.m. Upon receipt
of the letter the jurisdictional police commenced
investigation and recorded the statement of the victim
and the victim stated that she ran away from
Government Girls Niketan on 24.07.2020 at 8:30 a.m.
and in the process of evading the authorities she
reached the railway track and reached Dehradun
Railway Station by walking along the tracks; that, she
went to the station to catch a train to Delhi and as there
was no train at Dehradun Station, she proceeded further
on foot and reached Harrawala Railway Station by
walking along the tracks; that, she met a boy there on
the Railway Station, who introduced himself as Preetam
R/o Keshavpuri Basti, Doiwala, Dehradun and that he
asked her to do wrong things but she refused and
thereafter, he persisted by offering money but out of
fear victim ran away towards Dehradun Railway Station;
that, the boy followed her and took her into the jungle
between the Flyover and Harrawala at around 23:30
p.m. and did wrong things with her and gave her ₹200
and stayed with her till morning 4.30 AM and while
leaving he gave her his mobile number and told her to
call him tomorrow; that, thereafter, she came back to
Dehradun and at about 7:30 p.m. of previous day she
called the number from a third person's mobile but the
said Preetam refused to come; that the
appellant/applicant was traced on the basis of the
telephone number and the victim was identified by the
Police and detained by them on 26.07.2020 and after
coming to know about the incident, the victim was sent
to the Doctor and before the Doctor she made the
following statements:
"Statements before Doctor
Pt. alleges that she ran away from Balika Niketan at
8:30 am on 24.07.2020 and went to Dehradun
railway station from there she walked along the
sailway tracks to Harrawala Railway Station. From
there she further proceeded and was followed by a
person named Preetam who had forced sexual
relationship with her in return of Rs. 200/-. They both
then came back to Harrawala Staion and stayed
overnight. She walked back to Dehradun railway
Station via tracks at 4 am. Here at Dehradun railway
station she met a lady who took her to her house near
the railway station. There she took bath, changed
clothes and had food. Again in the evening she went
to the railway station to inquire about train timing to
New Delhi, she went back to the house and stayed
there overnight. At 4:30 am on 26/07/2020 the
couple came to drop her at the railway station. She
was caught by police as she was boarding the train at
around 4:50 am."
5. Thereafter, the victim was taken to the Court
of the First Additional Chief Judicial Magistrate,
Dehradun and the statement under Section 164 Cr.P.C.
was recorded on 30.07.2020. The statement recorded
under Section 164 Cr.P.C. reads as under:-
"Court of First Additional Chief Judicial
Magistrate Dehradun Case Crime No. 254/2020,
Under Section-376 and POCSO Vs.
Preetam
Statements of Victim under section 164 CrPC.
Dated 30-07-2020
Name- Victm, D/o- Shahnawaz Khan, Aged- 16 years,
Business Class 6th Student, R/o- Lane No. 14,
Sahibabad Delhi, Present Address - Nari Niketan,
District Dehradun.
Stated on Oath-
My family is at Sahibabad. I don't have mother.
We are three brother and sister. I am the eldest. I
have a brother who is younger to me and I have a
younger sister. My father deals in clothes. I went with
my father to my maternal aunt mausi's Mohru Nisha's
place to bihar and since three years I am residing
there only. On 12 February 2020, I came to Dehradun
with Massom Khan for sight seeing. I did not tell my
mausi/ maternal aunt before coming. That day mother
of Masoom and two younger brothers who must be 8-
10 years old, with them, we came in train to
Dehradun. Masoom Khan used to visit the house of
my maternal aunt/ mausi. Earlier Masoom Khan used
to reside in Dehradun only. Masoom Khan had a
house in dehradun. The father of Masoom Khan had
passed away many years back. Masoom Khan had
gone to work in Mandi. Masoom Khan is married. His
wife and children live in village Shahangaon District-
Purnima Bihar. The mother of Masoom Khan used to
beat me and also did not give food to me. Mother of
Masoom Khan lad thrown me out of house on dated
27.06.2020. Then I slept in the house of one didi who
used to live on rent in that house only. When I went
to police station with one uncle and aunty, then I was
sent to Nari Nikatan from there on 24.07.2020 fled
from Nari Niketan then I went straight away to the
Railway Station Dehradun. I reached on foot to
Harrawala Station. There I met a boy then he caught
me and forcefully did 'wrong act'/ 'galat kaam' with
me and he gave me rupees 200/- to keep. I refused.
He told his name to be Preetam. He stayed with me
till 4 O' clock in morning and then he went. I stayed in
the house of a cleaner employee woman. Preetam
gave his phone number to me. On 25.07.2020 I called
from someone's phone. That uncle only called up the
police men. When I saw the police men, I myself told
the policemen that I have come from Nari Niketan and
since that day I am in Nari Niketan." (Underlining by
this Court)
6. The appellant/applicant was detained by the
Police on 27.07.2020 and produced before the Juvenile
Justice Board (JJ Board) as the Police found the
appellant/applicant to be minor aged about 16 years
and the Juvenile Justice Board took cognizance and
forwarded Child in Conflict with Law (CICL) to a
Correctional Home.
7. The minor status of the appellant /convict was
affirmed based on a progress report issued by the
Government Primary School, Keshavpuri, Doiwala,
Dehradun which reflected the date of birth as
08.03.2004. In that view he was sent to the
Government Observation Home. Thereafter, the Juvenile
Justice Board carried out a Preliminary Assessment in
terms of Section 15 of the Juvenile Justice Act on
28.10.2020. In response to the 5th question - Do you
obey by your parents? He has answered as - Yes, I obey
by my mother. My father has passed away. The next
question is - How is your parents behaviour towards
you? The 10th question is - Does your father drink
alcohol or gamble with his friends at home? The boy
having categorically stated that his father has passed
away and that he lives with his mother, we are unable to
comprehend in what context such a question was
framed.
8. That apart, a reading of the question, prima
facie, would reflect that questions appeared to be a set
of premeditated questions addressed in general or
otherwise multiple questions relating to behavioural
activities of the father would not have been posed after
the CICL had informed that his father was no more and
had passed away.
9. Based on the questions and the Social
Investigation Report, the Juvenile Justice Board deemed
it fit to refer the CICL to be tried as an adult under Sub-
section (3) of Section 18 of the Juvenile Justice Act. On
receipt of the same, the Juvenile Court passed an order
on 06.01.2021 as under:-
"06.01.2021
File was presented. The juvenile in conflict with law is
present. The case file has been received under section
18(3) of Juvenile Justice (Care and Protection of
Children) Act.
The Juvenile in conflict with law is present before the
court. The Juvenile Court, in accordance with Section
19(1), engaged in a dialogue with the juvenile in
conflict with law and endeavoured to ascertain his
mental capacity and understand the consequences of
the offence committed. Certain questions were put to
the juvenile. Upon conducting the interaction with the
juvenile in conflict with law, who is present before the
court was found to possess adequate cognitive
abilities and to be capable of comprehending the
consequences of his actions. In such circumstances,
the juvenile is tried as an adult under Section 19(1) of
the Criminal Procedure Code. Accordingly, the juvenile
in conflict with law is tried as an adult and tried of the
charges specified herein.
(Meena Deopa)"
10. Learned counsel for the appellant/applicant
would draw the attention of the Court to Section 15 of
the Juvenile Justice Act, which reads as under:-
"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 sub-section (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 the Board shall follow the procedure,
as far as may be, for trial in summons case under
the Code of Criminal Procedure, 1973 (2 of 1974):
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."
11. She would take the Court to Section 18 of the
Juvenile Justice Act, which reads as under:-
"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 committed a heinous
offence, 1[or a child above the age of sixteen years
has committed a heinous offence and the Board has,
after preliminary assessment under Section 15,
disposed of the matter] 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 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 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."
12. Elaborating further she would take the Court
through Section 19 of the Juvenile Justice Act. Section
19(1)(i) of the Juvenile Justice Act mandates that the
Children's Court on receipt of the Preliminary
Assessment Report from the Board under Section 15 of
the Juvenile Justice Act is required to decide that there
is a need for trial of a child as an adult or in the
alternative to decide not to hold a trial and conduct an
inquiry as a Board and pass appropriate order in
accordance with provisions of Section 18 of the Juvenile
Justice Act.
13. The learned counsel for the appellant
elaborating further would contend that the Act casts a
duty on the Children's Court to arrive at a conclusion as
to whether the CICL is required to be tried as an adult
by the Court or in the alternative conduct an inquiry as
a Board and award punishment. Elaborating further the
learned counsel would submit that the duty cast upon
the Court is not discretionary but is a mandatory
exercise that the court ought to carry out and that the
Court has woefully failed in discharging the duties cast
upon it under Section 19(1). In this regard, she places
reliance on the ruling of Hon'ble Apex Supreme Court
rendered in the case of Trimurti vs. State reported in
2024 (12) SCC 307
14. The Hon'ble Apex Court has discussed the
entire gamut of Section 15, 18 and 19 and has been
pleased to observe and hold in paragraph nos. 25-40 as
under:-
"25. At the outset, we may note that the fact
regarding the appellant-accused being juvenile and
thus a CICL on the date of commission of the incident
was known to the investigating officer (PW 25) right
at inception of the proceedings. The investigating
officer (PW 25) categorically stated in his deposition
that after completing the investigation and preparing
the final report against the "juvenile in conflict with
law", he took opinion from the Salem TTP, prepared a
model charge-sheet and filed the same in the trial
court.
26. The trial court was also cognizant of this
important aspect as can be clearly discerned from the
opening lines of para 2 of the judgment of the trial
court wherein it is mentioned that "Thirumoorthy, a
17-year-old juvenile in conflict with law, lives with his
mother in Telanganaur". It has also been recorded by
the trial court that on the date of passing of the
judgment i.e. 18-2-2019, the accused was 19 years
and 2 months old and accordingly, he was required to
be sent to a place of safety as per Section 20 of the JJ
Act. The judgment passed by the Sessions Court also
records the fact that during the course of the trial, the
accused was kept in a child protection home. Further
at para 32 of the judgment, the trial court also noted
that the Public Prosecutor himself argued that
Thirumoorthy was a CICL who committed the offence
upon the child victim.
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.
28. Before dealing with the rival contentions, we
would now refer to some of the relevant provisions of
the JJ Act which are required to be followed in a case
involving prosecution of a CICL:
"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 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.
(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.
(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 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.
***
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:
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.
***
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 sub-section (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 the Board shall follow the
procedure, as far as may be, for trial in summons
case under the Code of Criminal Procedure, 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.
***
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
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 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 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.
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 Code of
Criminal Procedure, 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."
(emphasis supplied)
29. The provisions contained in Section 9(1)
stipulate that when a Magistrate not empowered to
exercise the power of the Board under the 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.
30. Sections 9(2) and 9(3) cast a burden that
where the Court itself is of the opinion that the person
was a child on the date of commission of the offence,
it shall conduct an inquiry so as to determine the age
of such person and upon finding that the person
alleged to have committed the offence was a child on
date of commission of such offence, forward such
person to the Board for passing appropriate orders
and sentence, if any, passed by the Court shall be
deemed to have no effect.
31. In the present case, the situation is very stark
inasmuch as, even when the charge-sheet was filed,
the investigating officer had clearly recorded that the
date of birth of the accused was 30-5-2000, and
hence, even assuming that Sessions Court at Salem
had been designated as a Children's Court, there was
no option for the said Court but to forward the child to
the Board concerned for further directions.
32. There is no dispute on the aspect that the
offences of which the appellant-accused was charged
with, fall within the category of "heinous offences" as
defined under Section 2(33) of the JJ Act. Section
15(1) provides that in case where a heinous
offence(s) are 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 committed the offence. The
Board, after conducting such assessment, may pass
an order in accordance with the provisions of sub-
section (3) of Section 18 of the JJ Act. Section 15(2)
provides that 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 of summons
case under CrPC. Under first proviso to this sub-
section, the order passed by the Board is appealable
under Section 101(2) of the JJ Act.
33. Section 18(3) provides that where the Board
after preliminary assessment under Section 15 opines
that there is a need for the said child to be tried 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.
34. By virtue of Section 19(1), the Children's
Court, upon receiving such report of preliminary
assessment undertaken by the Board under Section
15 may further decide as to whether there is a need
for trial of the child as an adult or not.
35. The procedure provided under Sections 15 and
19 has been held to be mandatory by this Court
in Ajeet Gurjar v. State of M.P. [Ajeet Gurjar v. State
of M.P., (2023) 15 SCC 678] In the said case, this
Court considered the import of Section 19(1) of the JJ
Act and held that the word "may" used in the said
provision be read as "shall". It was also held that
holding of an inquiry under Section 19(1)(i) is not an
empty formality. Section 19(1)(ii) provides that after
examining the matter, if the Children's Court comes to
the conclusion that there is no need for trial of the
child as an adult, instead of sending back the matter
to the Board, the Court itself is empowered to conduct
an inquiry and pass appropriate orders in accordance
with provisions of Section 18 of the JJ Act. The trial of
a child as an adult and his trial as a juvenile by the
Children's Court have different consequences.
36. It was further held that the Children's Court
cannot brush aside the requirement of holding an
inquiry under Section 19(1)(i) of the JJ Act. Thus, all
actions provided under Section 19 are mandatorily
required to be undertaken by the Children's Court.
37. As can be seen from the facts of the present
case, there has been a flagrant violation of the
mandatory requirements of Sections 15 and 19 of the
JJ Act. Neither was the charge-sheet against the
appellant-accused filed before the Board nor was any
preliminary assessment conducted under Section 15,
so as to find out whether the appellant-accused was
required to be tried as an adult.
38. In absence of a preliminary assessment being
conducted by the Board under Section 15, and
without an order being passed by the Board under
Section 15(1) read with Section 18(3), it was
impermissible for the trial court to have accepted the
charge-sheet and to have proceeded with the trial of
the accused.
39. Thus, it is evident that the procedure adopted
by the Sessions Court in conducting the trial of the
appellant-accused is dehors the mandatory
requirements of the JJ Act.
40. Thus, on the face of the record, the
proceedings undertaken by the Sessions Court in
conducting trial of the CICL, convicting and sentencing
him as above are in gross violation of the mandate of
the Act and thus, the entire proceedings stand
vitiated." (Underlining & emphasis by this Court)
15. On this short ground alone, as held by
the Hon'ble Apex Court, the trial itself stands vitiated,
thereby entitling the Applicant for relief. This Court,
having gone through the details of the complaint, finds
it difficult to even believe the prosecution's version. The
facts narrated by the prosecution causes disbelief for the
singular reason that the date 24.07.2020 was a date
when the second wave of Corona Virus of COVID-19 was
at its peak. It is common knowledge and a fact, of which
this Court can take judicial notice, that the Disaster
Management Authority had issued notifications
prohibiting the movement of persons. Residents were
prohibited from leaving their houses and they were
required to obtain passes to move from one place to
another. Despite this prohibition and ban which was
enforced strictly, a strange story is woven by the
prosecution that the girl escaped from the home at
08:30 a.m. on 24.07.2020 and was wandering alone
and entered not one but two railway stations and yet
nobody noticed a young girl roaming about in the open.
Even according to the prosecution, the child ran away
from the home, went to Dehradun Railway Station and
from there she walked to Harrawala Railway Station
which is about 10 kms from Dehradun Railway Station in
broad day light and despite the absence of vehicular
traffic and the absence of citizens in public places the
Court has believed that nobody has observed the lone
child.
16. That apart, as is usual neither the medical
report nor the FSL investigation place any material to
demonstrate the charge of allegations of penetrative
sexual assault. What makes the prosecution version
even more unbelievable is the allegation that she was
dragged into the nearby forest and she was forcibly
assaulted. The said statement, prima facie, has to be
disbelieved for the short reason that the medical
examination does not reveal any injuries on the body.
Not even an abrasion is recorded in the medical
certificate. In fact, the medical report records the
absence of both external and internal injuries. If the act
of penetrative sexual assault was committed after
making her lying on the ground, it would have definitely
at least caused an abrasion or two and it is even more
shocking that the offender, who even according to the
JJB Board and the Children's court is aware of the
consequences of committing such a heinous offence,
would share his number with the victim.
17. Be that as it may. These aspects regarding
the efficacy of the evidence requires to the gone into at
the time of hearing. One other aspect that we are
constrained to note is the improvements in the
statements made by the victim before the police, before
the doctor and before the Magistrate u/s 164 Cr.P.C.
According to her, in the statement before the police, she
was walking from Harrawala station to Dehradun station
on foot when the appellant is said to have accosted her
at around 11:30 p.m. and forced himself upon her. In
the statement before the doctor, she has said that she
ran away from the Balika Niketan at 8:30 a.m. on
24.07.2020 and states that she was walking from
Dehradun to Harrawala Railway Station and from there
she proceeded further and was followed by a person
named Preetam who forced her into sexual relationship
and that after the assault both of them came back to
the Harrawala Railway station and thereafter she
proceeded to Dehradun Railway Station at 4 a.m. in the
morning; that at Dehradun railway station she met a
lady who took her to her house; that it can be inferred
that it is on 25.07.2025; that, the couple brought her
back to the station at 04:30 a.m. on 26.07.2020 and
she was caught by the police while boarding a train at
4:50 a.m. The timing of the registration of the FIR
would show that the FIR is lodged at 4:57 p.m. on
26.07.2020.
18. The entire narration, if appreciated in the
backdrop of the constant improvement of case by the
victim, it casts a shadow of doubt about the truthfulness
of her statment. Though the case of the prosecution is
that the child was recovered from the station while
boarding a train, there is no detail as to which train the
child was boarding; whether the child possessed a
ticket; whether the child had complied with the
stipulations under the notification issued by the Ministry
of Railways dated 20.05.2020. Copy of the press note
issued by the Ministry of Railways dated 20.05.2020 is
placed before this Court. On page 3, Para No.viii (1) it
is stated that only passengers with confirmed tickets
shall be allowed to enter the railway station.
19. If that be the pre-condition to even enter the
railway station, the absence of any railway ticket creates
a doubt. That apart, the annexure consisting of a list of
100 pairs of trains Mail and Express trains which were
permitted to run from 01.06.2020 is also annexed with
the Notification. The only outward bound train from
Dehradun station is detailed at S.No.82 i.e. 02091/92
from Dehradun to Kathgodam and the only incoming
train into Dehradun station is detailed at S.No.85 i.e.
02055/56 New Delhi (Train No.1520) to Dehradun. This
also casts a doubt regarding the truthfulness of the
prosecution version.
20. In that view of the matter, we are of the
opinion that the applicant has made out a case for grant
of relief.
21. In that view, the bail application (IA/1/2023)
is allowed. Accordingly, the sentence imposed under the
judgment and order dated 29/30.09.2023 in Special
Session Trial No.87 of 2020 by the Court of Special
Judge (POCSO Act)/ Additional Sessions Judge,
Dehradun hereby stands suspended. The
appellant/applicant is directed to be enlarged on bail
forthwith, if not required in any other case, subject to
appellant executing a bond for a sum of ₹10,000/- to
the satisfaction of the concerned Magistrate.
22. List for hearing in due course.
(G. NARENDAR, C.J.)
(SUBHASH UPADHYAY, J.)
Dated: 15.10.2025
KK/SS
