# Vishal Kannaujiya(Juvenile) Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-02
- **Case number:** Criminal Revision No. 31 of 2021
- **Bench:** Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-kannaujiya-juvenile-revisionist-v-state-of-u-p-anr-46522
- **Pages:** 30

## Headnote

(A) Criminal Law - The Juvenile Justice (Care
and Protection of Children) Act, 2015 - Section
102 - Revision - Section 12 - bail to a person
who is apparently a child alleged to be in
conflict with law - reasons - circumstances -
Indian Penal Code, 1860 - Sections 82,83,84 &
376 , The Code of criminal procedure, 1973 -
Sections 29(B),161,399 & 562 - The Prevention
of Child from Sexual Offence Act, 2012 -
Section 5/6 .

(B) Criminal Law - The Juvenile Justice (Care
and Protection of Children) Act, 2015 - proviso
to Section 12(1) - a juvenile shall not be
released, if there appears to be reasonable
ground for believing that the release is likely to
bring that child in association with any known
criminal or expose the said person to mental,
physical or psychological danger or the release
would defeat the ends of justice, and thus, the
Board shall record (reasons) "for denying the
bail", and "circumstances that led to such a
decision. (Para -35)

Juvenile along with minor - wandering in suspicious
condition - intercepted - victim as well as juvenile
apprised the police personnel - not willing to go to
their respective houses - wanted to live together -
FIR lodged by complainant - allegation - UPT report
of victim found positive - pregnant - Statement under
Section 161 & 164 CrPC - love with revisionist for past
three months - willing to marry revisionist - orders
passed by both courts below - without application of
mind - orders rejecting the bail / release application
of revisionist - hence revision . (Para - 40)

HELD:-Observation made by District Probation
Officer is too far to be a ground to reject the bail/
release application. Report submitted by the
District Probation Officer is to be considered in the
light of the Statutory Provision under Section 12 of
the Juvenile justice Act, 2015 . Nothing on record
to show that there is any criminal antecedents
either of the juvenile or his family . There is
nothing adverse, but presumptions have been
drawn that in case, he is released, then the same
would defeat the ends of justice. Impugned
judgment and order passed by the courts below
refusing the bail to the revisionist are hereby set
aside and reversed.(Para - 60,63)

Criminal Revision allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,752 of 110,767. This is a partial read: ask again with offset=39752 for what follows._

11 All. Kunwar Pal Vs. State
115

17. The appeal sans merit and is dismissed.
However, with the aforesaid observations to the
State.

18. Record for proceedings be consigned to
the trial court.

19. The High Court Legal Services
Committee will pay the requisite fees to the
learned counsel who is amenably assisted this
Court.
----------
(2021)12ILR A115
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Criminal Revision No. 31 of 2021

Vishal Kannaujiya(Juvenile) ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rajnish Shukla

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Juvenile Justice (Care
and Protection of Children) Act, 2015 - Section
102 - Revision - Section 12 - bail to a person
who is apparently a child alleged to be in
conflict with law - reasons - circumstances -
Indian Penal Code, 1860 - Sections 82,83,84 &
376 , The Code of criminal procedure, 1973 -
Sections 29(B),161,399 & 562 - The Prevention
of Child from Sexual Offence Act, 2012 -
Section 5/6 .

(B) Criminal Law - The Juvenile Justice (Care
and Protection of Children) Act, 2015 - proviso
to Section 12(1) - a juvenile shall not be
released, if there appears to be reasonable
ground for believing that the release is likely to
bring that child in association with any known
criminal or expose the said person to mental,
physical or psychological danger or the release
would defeat the ends of justice, and thus, the
Board shall record (reasons) "for denying the
bail", and "circumstances that led to such a
decision. (Para -35)

Juvenile along with minor - wandering in suspicious
condition - intercepted - victim as well as juvenile
apprised the police personnel - not willing to go to
their respective houses - wanted to live together -
FIR lodged by complainant - allegation - UPT report
of victim found positive - pregnant - Statement under
Section 161 & 164 CrPC - love with revisionist for past
three months - willing to marry revisionist - orders
passed by both courts below - without application of
mind - orders rejecting the bail / release application
of revisionist - hence revision . (Para - 40)

HELD:-Observation made by District Probation
Officer is too far to be a ground to reject the bail/
release application. Report submitted by the
District Probation Officer is to be considered in the
light of the Statutory Provision under Section 12 of
the Juvenile justice Act, 2015 . Nothing on record
to show that there is any criminal antecedents
either of the juvenile or his family . There is
nothing adverse, but presumptions have been
drawn that in case, he is released, then the same
would defeat the ends of justice. Impugned
judgment and order passed by the courts below
refusing the bail to the revisionist are hereby set
aside and reversed.(Para - 60,63)

Criminal Revision allowed. (E-7)

List of Cases cited:-

1. Om Prakash Vs St. of Raj. , 2012(5) SCC201

2. Sanjay Chaurasiya Vs St. of U.P, 2006 CrLJ 2957

3. Prakash Vs St. of Raj., 2006 CrLJ 1373

4. Shiv Kumar @ Sadhu Vs St. of U.P, 2010 (1) ACC
616

5. Rahul Patel Vs St. of U.P. , 2018 (1)JIC357

6. Mangesh Rajbhar Vs St. of U.P., 2018(6) ADJ

7. Sumit Kumar Vs St. of U.P. , Criminal Revision No.
915 of 2017
116 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Deepesh Bhati Vs St. of U.P. , Criminal Revision no.
177 of 2018

9. Sahil Vs St. of U.P. , Criminal Revision No. 1328 of
2020

10. Data Ram Singh Vs St. of U.P. & anr., 2018(3)
SCC 22

(Delivered by Hon'ble Vikas Budhwar, J.)

1. This is a revision under Section 102 of
the Juvenile Justice (Care and Protection of
Children) Act, 2015 (in short the J.J. Act, 2015),
instituted against the order dated 26.8.2020
passed by the Principal Magistrate, Juvenile
Justice Board, Gorakhpur in Case Crime no. 09
of 2020 (State Vs. Vishal Kannaujiya), under
Section 376 IPC read with Section 5/6 of the
Prevention of Child from Sexual Offence Act,
2012, hereinafter referred to as the ''POCSO
Act', P.S. Khajani, District Gorakhpur as well as
the order dated 27.11.2020 passed by learned
Addl. Sessions Judge/ Special Judge (POCSO
Act), Court No.1, Gorakhpur, in Criminal
Appeal No. 62 of 2020, Vishal Kannaujiya Vs.
State of U.P. and others refusing the bail to the
revisionist.

2. Brief facts of the case setforth by the
revisionist are that the prosecution has alleged
that the victim Miss Neeraj Kannaujiya,
daughter of Ram Laut Kannaujiya is 17 years
old, as whereas revisionist-juvenile being Master
Vishal Kannaujiya son of Rajesh Kannaujiya
was aged about 16 years, they were found
wandering in a suspicious condition in Kasba
Khajani on the unlucky day, i.e, 28.12.2019. On
interception, the juvenile as well as the victim
Neeraj Kannaujiya apprised the police personnel
that they were not willing to go to their
respective houses as they wanted to live
together. Faced with these circumstances, one
Sri Rudra Pratap Singh, Sub-Inspector, P.S.
Khajani,
District
Gorakhpur
made
a
communication to the designated official of
Child Welfare Committee, District Gorakhpur
clearly narrating the fact that the juvenile and
the victim both of them were not agreeable to go
to their respective houses and further despite the
fact that information was provided to the parents
of the juvenile and the victim, none of them
approached them to take custody of the juvenile
or the victim and thus request was being sought
to be made to them that the victim as well as the
revisionist be taken into the custody of the Child
Welfare Committee, District Gorakhpur for their
upkeep, care and betterment.

3. It appears that on the same day, i.e, on
28.12.2019, G.D. entry was also made narrating
the facts, which had been communicated on
28.12.2019 by the Sub-Inspector, P.S. Khajani,
Gorakhpur to the Child Welfare Committee,
Gorakhpur. Thereafter, FIR was lodged by one
Sri Krishna Sinha being the member of the Child
Welfare Committee, Gorakhpur before the
police
station
Khajani,
Gorakhpur
dated
16.1.2020 registered as Case Crime no. 0009 of
2020 with an allegation that on 28.12.2019 itself
the police officials found the revisionist and the
victim together in suspicious condition and
further on medical examination, it revealed that
UPT was positive depicting that she was
pregnant. It was also alleged that the father of
the victim had not lodged the FIR because the
victim was a minor and that will create negative
impact upon the character of the victim.
Statement of the complainant being Sri Krishna
Sinha, Chairman / Member, Child Welfare
Committee, District Gorakhpur was recorded on
17.1.2020 under Section 161 CrPC, wherein the
same facts were reiterated, which already found
place in the FIR. It has also come on record that
despite being request administered to the parents
of the victim, as well as the victim for getting
her medically examined, she refused for the
same. The statement of the victim was also
recorded under Section 164 CrPC, a certified
copy of the same is at page 70 of the paper book,
wherein the victim has deposed that she is of 17
11 All. Kunwar Pal Vs. State
117
years of age and she is in love with the
revisionist for the past three months and she
according to her sweet will has married with the
revisionist. Consequent to the initiation of the
proceedings emanating from the FIR, the
revisionist is in observation home since
22.7.2020, and the proceeding has been
registered as Case Crime no. 9 of 2020, under
Section 376 IPC read with Section 5/6 of
POCSO Act.

4. The Court of Addl. Sessions Judge/
Special Judge (POCSO Act), Court No.1,
Gorakhpur in the proceedings in Misc. Case No.
260 of 2020, CNR No. UPGK01-003610-2020
(State of U.P. Vs. Vishal Kannaujiya) by virtue
of the order dated 21.7.2020 declared the
revisionist to be juvenile, while determining his
date of birth to be 1.4.2003 holding that he was
16 years 9 months and 15 days of age, i.e. below
the age of 18 on the date of occurrence of
incident. It has also come on record that District
Probation Officer submitted report to the Board
on 6.8.2020, according to which there was no
good ground entitling the revisionist to be bailed
out in terms of the provisions contained under
Section 12 of the J.J. Act, 2015. A police report
dated 25.8.2020 was also submitted, which also
does not find favour with the revisionist.

5. The bail/ release application so preferred
for releasing the revisionist on bail was at the
first instance rejected by the Court of Principal
Magistrate, Juvenile Justice Board, Gorakhpur in
Case Crime no.9 of 2020, State vs. Vishal
Kannaujiya, which was carried before learned
Addl. Sessions Judge/ Special Judge (POCSO
Act), Court No.1, Gorakhpur, being Criminal
Appeal No. 62 of 2020, Vishal Kannaujiya vs.
State of U.P. and others, which also met the
same fate and the same was laid to rest by virtue
of order dated 27.11.2020.

6. Challenging both the orders, the
revisionist is before this Court in the present
revision, which purports to be under Section 102
of the Juvenile Justice (Care and Protection of
Children) Act, 2015.

7. Before proceeding further, while
deciding the controversy in question it would be
profitable to give a brief outline of the
philosophy behind the introduction of Juvenile
Justice system since inception.

8. The basic idea behind the formulation of
the juvenile justice system is to reform,
rehabilitate and re-integrate a child in conflict
with law and the child in need of care and
protection. Obviously, the philosophy in dealing
with children committing offence is remarkably
different from an adult committing an offence as
in that case, different criteria and yardsticks
have to be adopted. The first doctrine dealing
with children of both the categories is the
doctrine parens patriae in a juvenile justice legal
system parens patriae, the doctrine that allows
the State to step in and serve as a guardian for
children, the mentally ill, the incompetent, the
illiterate or disable persons, who are unable to
take care of themselves.

9. Needless to point out that it refers to
public policy power of State to intervene against
absurd and inequitable parents, legal guardians
or informal care taker and to act as a parent of
any child or individual, who is in the need of
protection. Normally, the natural parents and
family are expected to take care of their child,
but when they fail, then the State has to take
steps and it has to step into the shoes of the
parents and family to provide the same care and
protection, as their own parents and family
should have been provided for them.

10. With passage of time, the principle of
parens patriae shifted to the right approach,
which respects the constitutional and procedural
rights of a juvenile. A child in conflict with law
should be treated in a manner consistent with the
118 INDIAN LAW REPORTS ALLAHABAD SERIES
promotion of the child's sense of dignity and
worth, which reinforces the child's respect for
the human rights and fundamental freedoms of
others and, which takes into account the child's
age and the desirability of promoting the child's
reintegration and the child's assuming a
constructive role in the society.

11. In the Pre-Independence era, first
legislation enacted for the children in distress is
the Apprentice Act, 1850. It applies to children
above the age of 10 and under the age of 18
found to have committed petty offence and
vagabonds. Under the Act, the children in
distress were to be trained for trade and
commerce. "The Preamble of the Apprentice
Act, 1850", which explains the idea behind the
enactment is quoted hereinunder:

"For better enabling children, and
especially orphans and poor children brought
up in public charity, to learn trades, crafts and
employments, by which, when they came to full
age, may gain a livelihood."

12. Thereafter, came into existence the
widely
known
code
by
the
name
and
nomenclature Indian Penal Code, 1860 enacting
various provisions relating to child, which are as
under:-

"82. Act of a child under seven years
of age.--Nothing is an offence which is done by
a child under seven years of age.

83. Act of a child above seven and
under twelve of immature understanding.--
Nothing is an offence which is done by a child
above seven years of age and under twelve, who
has
not
attained
sufficient
maturity
of
understanding to judge of the nature and
consequences of his conduct on that occasion.

84. Act of a person of unsound mind.-
-Nothing is an offence which is done by a person
who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing
the nature of the act, or that he is doing what is
either wrong or contrary to law."

13. Section 82 of the Indian Penal Code
itself provides that nothing is an offence, which
is done by a child under 7 years of age. Further
classification
has
been
made,
while
differentiating from a child, who is below the
age of 7, while incorporating Section 83 in the
Indian Penal Code, 1860 providing that nothing
is an offence, which is done by a child above 7
years of age and under 12, who has not attained
sufficient maturity of understanding to judge
nature and consequences of his conduct on that
occasion. Similarly, Section 84 has also been
inserted, which itself provides that nothing is an
offence, which is done by a person, who at the
time of committing it by the reason of
unsoundness of mind, is incapable of knowing
the nature of the act or what he is doing is either
wrong or contrary to law.

14. Then comes the stage wherein whereat
a new legislation by the name and nomenclature
of "Reformatory Schools Act, 1876" and its
amendments made in 1897 was brought into
existence according to which the Government
was enjoined to establish reformatory schools
for juvenile delinquents. Under the said Act,
provision was made to keep juveniles in custody
in reformatory school for a time period of 2 to 7
years, but after the attainment of 18 years, they
were not to be kept in the Reformatory Schools.
In the year 1898, another important legislation
for children was brought into existence being
Code of Criminal Procedure, 1898, wherein
Section 29(B) was inserted, which reads as

"29B. Jurisdiction in the case of
juveniles. - Any offence, other than one
punishable with death or [imprisonment] for
life, committed, by any person who at the date
when he appears or is brought before the Court
is under the age of fifteen years, may be tried by
a District Magistrate or a Chief Presidency
11 All. Kunwar Pal Vs. State
119
Magistrate, or by any Magistrate specially
empowered by the [State Government] to
exercise the powers conferred by Section 8, subsection (1), of the Reformatory Schools Act,
1897, or in any area, in which the said Act has
been wholly or in part repealed by any other law
providing for the custody, trial or punishment of
youthful
offenders,
by
any
Magistrate
empowered by or under such law to exercise all
or any of the powers conferred thereby.

State Amendments

Uttar Pradesh

In its application to the State of Uttar
Pradesh, Section 29B of the Code of Criminal
Procedure, 1898, ceases to apply to any area in
which Chapters I and III to Act I of 1952, S.
76(1)."

15. Further Section 399 of the "Code of
Criminal Procedure, 1898" reads as under:

"399.(1) When any person under the
age of fifteen years is sentenced by any Criminal
Court to imprisonment for any offence, the
Court may direct that such person, instead of
being imprisoned in a criminal jail, shall be
confined in any reformatory established by the
Government as a fit place for confinement, in
which there are means of suitable discipline and
of training in some branch of useful industry or
which is kept by a person willing to obey such
rules as the Government prescribes with regard
to the discipline and training of persons
confined therein.

(2) All persons confined under this
section shall be subject to the rules so
prescribed.

(3). This section shall not apply to any
place in which the Reformatory Schools Act,
1897, is for the time being in force."

State Amendments

Uttar Pradesh

- U.P. Act I of 1952, S. 76.

(2)(a) The Reformatory Schools Act,
1897 (VIII of 1897), which extends to whole of
India except State of Jammu and Kashmir, has
been extended to States merged in the State of (I)
Bombay - See Bom. Act V of 1950, S.S; (2)
Madhya Pradesh - See M.P. Act XII of 1950,
S.S; (3) Punjab - See Punj. Acts V of 1950, S. 3
and XVIII of 1958, S.4; and (4) Orissa - See Ori.
Act, IV of 1950, S. 4. The Act has been extended
to the Union Territory of Goa, Daman and Diu -
See Reg. XI of 1963."

16. Section 562 of the said Code conferred
power upon the Court to release on probation of
good conduct youthful offenders under 21 years
of age under certain conditions instead of
sentencing them to prison. Section 562 of CrPC,
1898 reads as under: -

"562. Power of Court to release
certain convicted offenders on probation of good
conduct instead of sentencing to punishment. -
(1) When any person not under twenty-one years
of age is convicted of an offence punishable with
imprisonment for not more than seven years, or
when any person under twenty-one years of age
or any woman is convicted of an offence not
punishable with death or [imprisonment for
life], and no previous conviction is proved
against the offender, if it appears to the Court
before which he is convicted, regard being had
to the age, character or antecedents of the
offender, and to the circumstances in which the
offence was committed, that it is expedient that
the offender should be released on probation of
good onduct, the Court may, instead of
sentencing him at once to any punishment, direct
that he be released on his entering into a bond,
with or without sureties, to appear and receive
sentence when called upon during such period
(not exceeding three years) as the Court may
direct, and in the meantime to keep the peace
and be of good behaviour :

Provided that, where any first offender
is convicted by a Magistrate of the third class,
or a Magistrate of the second class not specially
empowered by the [State Government] in this
120 INDIAN LAW REPORTS ALLAHABAD SERIES
behalf, and the Magistrate is of opinion that the
powers conferred by this section should be
exercised, he shall record his opinion to that
effect, and submit the proceedings to a
Magistrate of the first class or Sub-divisional
Magistrate, forwarding the accused to, or taking
bail for his appearance before, such Magistrate,
who shall dispose of the case in manner
provided by section 380.

[(1.A) Conviction and release with
admonition.-- In any case, in which a person is
convicted of theft, theft in a building, dishonest
misappropriation, cheating or any offence under
the Indian Penal Code punishable with not more
than two before whom he is so convicted may, if
it thinks fit, having regard to the age, character,
antecedents or physical or mental condition of
the offender and to the trivial nature of the
offence or any extenuating circumstances under
which the offence was committed, instead of
sentencing him to any punishment, release him
after due admonition.]

(2) An order under this section may be
made by any Appellate Court or by the High
Court when exercising its power of revision.

(3) When an order has been made
under this section in respect of any offender, the
High Court may, on appeal when there is a right
of appeal to such Court, or when exercising its
powers of revision, set aside such order, and in
lieu thereof pass sentence on such offender
according to law:

Provided that the High Court shall not
under
this
sub-section
inflict
a
greater
punishment than might have been inflicted by the
Court by which the offender was convicted.

(4) The provisions of sections 122,
126A and 406A shall, so far as ay be, apply in
the case of sureties offered in pursuance of the
provisions of this section. ]

STATE AMENDMENT

Uttar Pradesh

(1) In its application to the State of
Uttar Pradesh, S. 562 shall stand repealed - See
U.P. Act VI of 1938, S.15 (1-2-1939.]

Note. - Section 15 of U.P. First
Offenders' Probation Act, 1938 (U.P. Act VI of
1938), has been brought in fore in the whole of
Uttar Pradesh on and from 1-2-1939-- See U.P.
Gaz., 1939, Pt. I, p.99."

17.

These
provisions
along
with
"Reformatory Schools Act, 1897" made a
significant change in the juvenile justice system
from punishment to reform and rehabilitation.

18. Thereafter, the recommendations made
by the Indian Jail Committee (1919-1920)
suggested that juvenile prisoners are amenable
to reformation and their detention in prisons is
undesirable, for, their simple mind may be
polluted permanently by the atmosphere of Jail
life. A child offender was mainly a product of
unfavourable environment. He was entitled to
new opportunities to grow and live in more
congenial conditions. The Committee opined
that juveniles could be reformed by re-education
and proper treatment. It recommended that
Borstal institutions should be established for
reformation of juveniles. It also recommended
for constitution of juvenile courts.

19. Thereafter, under the Juvenile Justice
System in India, firstly the Juvenile Court was
established under Madras Children Act, 1920.

20. After independence of India in 1947,
the Parliament passed the first legislation on
children, namely, The Children's Act, 1960.
This
was
made
applicable
in
centrally
administered union territories and the States
having no juvenile legislation were made free to
adopt it. It was passed to function as model
legislation and for implementation in union
territories. This Act established separate child
welfare courts to handle cases relating to
neglected children. It also created the position of
a Probation Officer to advise and assist the
neglected or delinquent children. In addition, it
established separate Children's Court for cases
11 All. Kunwar Pal Vs. State
121
related
to
delinquent
juveniles,
thereby
supporting the judicial process for delinquent
and neglected children.

21. It would be relevant to note here that
prior to the passing of The Children's Act, 1960,
there existed different Children's Act in different
States. The most important aspect of the
Children's Act, 1960 was complete prohibition
of use of police station or jail under any
circumstances for children covered within its
purview. However, at this stage, Juvenile Justice
System in India was not uniform because each
State had its own standards, norms and practices.

22. The necessity of a uniform Children
Act across the Country gave rise to enactment of
Juvenile Justice Act, 1986 (for short 'the Act of
1986').

23. The Act of 1986 promoted the best
interest of the juveniles by incorporating the
important provisions of Indian Constitution. The
Act of 1986 was influenced by 'United Nations
Declaration of the Rights of the Child, 1959' and
'United Nations Standard Minimum Rules for
the Administration of Juvenile Justice ("The
Beijing Rules"), 1985'. The detention of
juveniles in police lock-up or jail was abolished
by the Act of 1986. It also recommended to
establish Juvenile Homes for the reception of
neglected juveniles, Special Homes for reception
of delinquent juveniles and Observation Homes
for the temporary reception of juveniles during
pendency of the inquiry and trial and Aftercare
Homes for the purpose of taking care of
juveniles after discharge from Observation
Homes or Special Homes. The object of the Act
of
1986
was
to
protect
juvenile
from
criminalization, penalization and stigmatization.
The Act of 1986 repealed various Children's
Acts enacted in different States and provided a
uniform Juvenile Justice System in India. Boys
under the age of 16 and girls under the age of 18
were defined as Juveniles.

24. Noticing various shortcoming in the
Act of 1986 when India signed and ratified the
'United Nations Convention of Rights of
Children' in December, 1992, the Act of 1986
was repealed and replaced by The Juvenile
Justice (Care and Protection of Children) Act,
2000 (for short 'the Act of 2000'), which came
into force from 1st April 2001. The Act of 2000
defined the term 'juvenile' as a person who
having not completed the age of 18 years. The
statement of objects and reasons for the Act of
2000 specified that it was enacted to bring the
operation of Juvenile Justice System in
conformity with Convention of Rights of
Children and other United Nations Instruments
signed by India. It incorporated the justice as
well as the right approach towards children. It
dealt with juveniles in conflict with law and
children in need of care and protection.

25. The Act of 2000 was amended in 2006.
The Amendment Act, 2006 brought several
amendments in the Principal Act. By the
amendment, it was made clear that crucial date
for determination of age of a juvenile in conflict
with law would be the date of commission of
offence. Another important change was insertion
of Section 7A, which provided that a claim of
juvenility may be raised before any court and it
shall be recognized at any stage, even after final
disposal of the case. The amended Act further
clarified that under any condition, a juvenile in
conflict with law should not be kept in a police
lock-up or jail.

26. The Act of 2000 was again amended in
2011 to address gaps in its implementation and
make the law more child friendly.

27. As the ill-luck it may be, this country
came across two important events, firstly being
the brutal gang-rape and secondly the death of a
girl (Nirbhaya) in Delhi on 16th December,
2012, which enacted the legislature in a forceful
debate, warranting that the legislations, which
122 INDIAN LAW REPORTS ALLAHABAD SERIES
were in the statute book are ill-equipped and
ends over all modifications to tackle the
children, who are in the age-group of 16-18.

28. After a long debate, the Juvenile
Justice Will was introduced in Lok Sabha on
8.8.2014 and it was passed by the Lok Sabha on
7.5.2015 and Rajya Sabha on 22nd December,
2015 and then the Juvenile Justice (Care and
Protection) Act, 2015 (2 of 2016) (hereinafter
referred to as the JJ Act, 2015) was given a
decent birth and the same came into force with
effect from 15.1.2016, after being published in
Gazette of India.

29. In order to appreciate the controversy in
the best possible manner in the backdrop of the
aims and the objects governing the enactment of
the said piece of legislation, the Statements of the
objects and reasons behind the enactment are to be
given a closure look:

"Statement of Objects and Reasons.-
Article 15 of the Constitution, inter alia, confers
upon the State powers to make special provision
for children. Articles 39(e) and (f), 45 and 47
further makes the State responsible for ensuring
that all needs of children are met and their basic
human rights are protected.
2. The United Nations Convention on the Rights of
Children, ratified by India on 11th December,
1992, requires the State Parties to undertake all
appropriate measures in case of a child alleged as,
or accused of, violating any penal law, including
(a) treatment of the child in a manner consistent
with the promotion of the child's sense of dignity
and worth (b) reinforcing the child's respect for
the human rights and fundamental freedoms of
others (c) taking into account the child's age and
the
desirability
of
promoting
the
child's
reintegration
and
the
child's
assuming
a
constructive role in society.

3. The Juvenile Justice (Care and
Protection of Children) Act was enacted in 2000 to
provide for the protection of children. The Act was
amended twice in 2006 and 2011 to address gaps in
its implementation and make the law more childfriendly. During the course of the implementation of
the Act, several issues arose such as increasing
incidents of abuse of children in institutions,
inadequate
facilities,
quality
of
care
and
rehabilitation measures in Homes, high pendency of
cases, delays in adoption due to faulty and
incomplete processing, lack of clarity regarding
roles,
responsibilities
and
accountability
of
institutions and, inadequate provisions to counter
offences against children such as corporal
punishment, sale of children for adoption purposes,
etc. have highlighted the need to review the existing
law.

4. Further, increasing cases of crimes
committed by children in the age group of 16-18
years in recent years makes it evident that the current
provisions and system under the Juvenile Justice
(Care and Protection of Children) Act, 2000, are ill
equipped to tackle child offenders in this age group.
The data collected by the National Crime Records
Bureau establishes that crimes by children in the age
group of 16-18 years have increased especially in
certain categories of heinous offences.

5. Numerous changes are required in
the
existing
Juvenile
Justice
(Care
and
Protection of Children) Act, 2000 to address the
above mentioned issues and therefore, it is
proposed to repeal existing Juvenile Justice
(Care and Protection of Children) Act, 2000 and
re- enact a comprehensive legislation inter alia
to provide for general principles of care and
protection of children, procedures in case of
children in need of care and protection and
children in conflict with law, rehabilitation and
social re-integration measures for such children,
adoption of orphan, abandoned and surrendered
children, and offences committed against
children. This legislation would thus ensure
proper care, protection, development, treatment
and social re-integration of children in difficult
circumstance by adopting a child-friendly
approach keeping in view the best interest of the
child in mind.
11 All. Kunwar Pal Vs. State
123

6. The notes on clauses explain in
detail the various provisions contained in the
Bill.

7. This Bill seeks to achieve the above
objectives."

30. It would be further useful to also quote
the Preamble, which for the ready reference is
quoted hereinunder:-

"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 re-integration, 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.

WHEREAS, the provisions of the
Constitution confer powers and impose duties,
under clause (3) of article 15, clauses (e) and (f)
of article 39, article 45 and article 47, on the
State to ensure that all the needs of children are
met and that their basic human rights are fully
protected;

AND WHEREAS, the Government of
India has acceded on the 11th December, 1992
to the Convention on the Rights of the Child,
adopted by the General Assembly of United
Nations, which has prescribed a set of standards
to be adhered to by all State parties in securing
the best interest of the child;

AND WHEREAS, it is expedient to reenact the Juvenile Justice (Care and Protection
of Children) Act, 2000 to make comprehensive
provisions for children alleged and found to be
in conflict with law and children in need of care
and protection, taking into consideration the
standards prescribed in the Convention on the
Rights of the Child, the United Nations Standard
Minimum Rules for the Administration of
Juvenile Justice, 1985 (the Beijing Rules), the
United Nations Rules for the Protection of
Juveniles Deprived of their Liberty (1990), the
Hague Convention on Protection of Children
and Co-operation in Respect of Inter-country
Adoption (1993), and other related international
instruments."

31. A plain reading of the Preamble as well
as the main object behind the enactment of
Juvenile Justice Act, 2015 also gets its identity
from the Articles of the Constitution of India
1950, the same are as under: -

"Article 15(3): Nothing in this article
shall prevent the State from making any special
provision for women and children"

"Article 39 (e) that the health and
strength of workers, men and women, and the
tender age of children are not abused and that
citizens are not forced by economic necessity to
enter avocations unsuited to their age or
strength;

(f)
that
children
are
given
opportunities and facilities to develop in a
healthy manner and in conditions of freedom
and dignity and that childhood and youth are
protected against exploitation and against moral
and material abandonment"

"Article 45. Provision for free and
compulsory education for children The State
shall endeavour to provide, within a period of
ten years from the commencement of this
Constitution, for free and compulsory education
for all children until they complete the age of
fourteen years."

"Article 47. Duty of the State to raise
the level of nutrition and the standard of living
and to improve public health The State shall
regard the raising of the level of nutrition and
the standard of living of its people and the
improvement of public health as among its
primary duties and, in particular, the State shall
endeavour to bring about prohibition of the
consumption except for medicinal purposes of
124 INDIAN LAW REPORTS ALLAHABAD SERIES
intoxicating drinks and of drugs which are
injurious to health."

32. Thus it can be safely said that the
Juvenile Justice Act, 2015 has been enacted to
fulfil the objects of the Constitution in Clause
(3) of the Article 15, Clauses (e) and (f) of
Article 39, Articles 45 and 47, which confers
powers and imposes duty upon the State to
ensure that all needs of the children are met and
their human rights are protected. The relevant
provisions of Juvenile Justice Act, 2015, which
are germane to the controversy in question needs
to be extracted hereinbelow:

"Section 2 (12): "child" means a
person who has not completed eighteen years of
age;

2(13): "child in conflict with law"
means a child who is alleged or found to have
committed an offence and who has not
completed eighteen years of age on the date of
commission of such offence;

2 (14)(a) has injured, exploited,
abused or neglected the child or has violated
any other law for the time being in force meant
for the protection of child; or

2(14)(ix) who is found vulnerable and
is likely to be inducted into drug abuse or
trafficking; or

2(14) (x) who is being or is likely to be
abused for unconscionable gains; or

33 "heinous offences" includes the
offences for which the minimum punishment
under the Indian Penal Code or any other law
for the time being in force is imprisonment for
seven years or more;

45 "petty offences" includes the
offences for which the maximum punishment
under the Indian Penal Code or any other law
for the time being in force is imprisonment up to
three years;

54 "serious offences" includes the
offences for which the punishment under the
Indian Penal Code or any other law for the time
being in force, is imprisonment between three to
seven years;"

"Section 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.
11 All. Kunwar Pal Vs. State
125

(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 nondiscrimination: 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.

Section 4. Juvenile Justice Board. - (1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, the State Government
shall, constitute for every district, one or more
Juvenile Justice Boards for exercising the powers
and discharging its functions relating to children
in conflict with law under this Act.