# Yogesh Revisionist (In Jail) v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 636
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-24
- **Case number:** Criminal Revision No. 1407 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogesh-revisionist-in-jail-v-state-of-u-p-anr-47458
- **Pages:** 36

## Headnote

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
397/401
&
Indian Penal Code, 1860-Section 147,
148, 149, 323, 342, 302/34 & Juvenile
Justice (Care and Protection of Children)
Act, 2015-Section 101, 102- applicationbail
rejected
u/s
12
JJ
Act-appeal
preferred u/s 101 of the Act, turned
down-age
of
the
accused/revisionist
determined as 16 years 6 months and 16
days on the date of incident-failure to
grant a fair hearing would be equally a
cause of prejudice to the accused as to the
victim-victim/complainant
would
be
entitled to a reasonable opportunity of
being heard in a revision-right to be heard
in revision would not stand excluded only
for the reason that a person who claims
such a right was not entitled to be heard
at the stage of passing of the original
order or at the appellate stage. (Para 1 to
82)

B. In a situation where substantial right
would be effected or a prejudice is likely
to result, an opportunity of hearing can
legitimately be claimed as a matter of
right when the order is assailed at the
higher forum, irrespective of the right of
hearing having been given at the stage
when original order was passed. (Para 75
to 81)

C. The principle of audi alteram partem is
a fundamental rule of natural justice and
'fair play in action' is its essence, which
demands that before any order prejudicial
to the interests of a person is passed, he
must be given an opportunity to be
heard.(Para 76)

The revision is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,986 of 116,930. This is a partial read: ask again with offset=39986 for what follows._

636 INDIAN LAW REPORTS ALLAHABAD SERIES
a casual manner and such discretion should
be exercised sparingly.

23. I find that the trail court has been
very careful and has gone through the
evidence of the prosecution witnesses in
detail and only then has summoned the
revisionists to face trial. There is no
illegality in the impugned order.

24. The revision, being devoid of
merit, is dismissed.
----------
(2021)09ILR A636
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Criminal Revision No. 1407 of 2021

Yogesh ...Revisionist (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Suresh Chandra Pandey, Sri Saurabh
Pandey.

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

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
397/401
&
Indian Penal Code, 1860-Section 147,
148, 149, 323, 342, 302/34 & Juvenile
Justice (Care and Protection of Children)
Act, 2015-Section 101, 102- applicationbail
rejected
u/s
12
JJ
Act-appeal
preferred u/s 101 of the Act, turned
down-age
of
the
accused/revisionist
determined as 16 years 6 months and 16
days on the date of incident-failure to
grant a fair hearing would be equally a
cause of prejudice to the accused as to the
victim-victim/complainant
would
be
entitled to a reasonable opportunity of
being heard in a revision-right to be heard
in revision would not stand excluded only
for the reason that a person who claims
such a right was not entitled to be heard
at the stage of passing of the original
order or at the appellate stage. (Para 1 to
82)

B. In a situation where substantial right
would be effected or a prejudice is likely
to result, an opportunity of hearing can
legitimately be claimed as a matter of
right when the order is assailed at the
higher forum, irrespective of the right of
hearing having been given at the stage
when original order was passed. (Para 75
to 81)

C. The principle of audi alteram partem is
a fundamental rule of natural justice and
'fair play in action' is its essence, which
demands that before any order prejudicial
to the interests of a person is passed, he
must be given an opportunity to be
heard.(Para 76)

The revision is allowed. (E-6)

List of Cases cited:

1. X S/o Laxman Vs St. Thru Pp & anr. CRLR
No. 494 of 2021

2. Sandeep Kumar Bafna Vs St. of Mah. & ors.
(2014) 16 SCC 623

3. Manharibhai Muljibhai Kakadia & anr. Vs
Shailesbhai Mohanbhai Patel & ors. (2012) 10
SCC 517

4. Mohit @ Sonu & anr. Vs St. of U. P. & anr.
(2013) 7 SCC 789

5. Babloo Pasi Vs St. of Jharkhand anr. (2008)
13 SCC 133

6. Jagannath Verma Vs St. of U.P.(2014) 8 ADJ
439

7. Mallikarjun Kodagali (dead) thru LRs Vs St. of
Karn. & ors.
9 All Yogesh Vs. State of U.P. & Anr.
637
8. Amir Hamza Shaikh & ors. Vs St. of Mah. &
anr. (2019) 8 SCC 387

9. J.K. International Vs St. (Govt of NCT of
Delhi ) & ors. (2001) 3 SCC 462

10. Ali M.K. & ors. Vs St. of Ker. & ors. (2003)
11 SCC 632

11. Mullins Vs Treasurer of Surrey (1880) 5 QBD
170

12. Shah Bhojraj Kuverji Oil Mills & Ginning
Factory Vs Subhash Chandra Yograj Sinha
(1961) AIR SC 1596

13. Calcutta Tramways Co. Ltd. Vs Corp. of
Calcutta (1965) AIR SC 1728

14. West Derby Union Vs Metropolitan Life
Assurance Co.(1897) AC 647

15. A.N. Sehgal Vs Raje Ram Sheoran (1991)
AIR SC 1406

16. Tribhovandas Haribhai Tamboli Vs Gujarat
Revenue Tribunal (1991) AIR SC 1538

17. Kerala State Housing Board Vs Ramapriya
Hotels (P) Ltd.(1994) 5 SCC 672

18. R. Vs Taunton, St James (1829) 9 B&C 831
& Lord Esher in Barker, Re (1890) 25 QBD 285

19. Hardeep Singh & ors. Vs St. of Punj. & ors.
(2014) 3 SCC 92

20. Patel Chunibhai Dajibha etc. Vs Narayanrao
Khanderao Jambekar (1965) AIR SC 1457

21. The Martin Burn Ltd. Vs The Corpn of
Calcutta (1966) AIR SC 529

22. M. V. Elisabeth Vs Harwan Investment &
Trading Pvt. Ltd. (1993) AIR SC 1014

23. Sultana Begum Vs Prem Chand Jain (1997)
6 SCC 373

24. St. of Bih. Vs Bih. Distillery Ltd. (1997) AIR
SC 1511

25. Institute of Chartered Accountants of India
Vs M/s Price Waterhouse (1997) 6 SCC 312

26. South Central Railway Employees Cooperative
Credit
Society
Central
Railway
Employees
Co-operative
Credit
Society
Employees Union Vs Registrar of Co-operative
Societies (1998) 2 SCC 580

27. Shilpa Mittal Vs St. (NCT of Delhi) & anr.
(2020) 2 SCC 787

28. U.O.I. Vs Hansoli Devi & ors. (2002) 7 SCC
273

29. Aswini Kumar Ghose Vs Arabinda Bose,
Quebec Railway, Light Heat and Power Co. Vs
Vandray (1953) SCR 1

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. The seminal question which is
before the Court at this stage of the
proceedings is as to whether in a revision
under Section 102 of the Juvenile Justice
(Care and Protection of Children) Act,
20151, in a matter relating to consideration
of bail to a 'child in conflict with law', the
complainant/victim is to be afforded an
opportunity of being heard.

2. The present criminal revision has
been
filed
against
the
order
dated
24.06.2021 passed by the Additional
Sessions Judge/Special Judge POCSO Act,
Mathura in Juvenile Criminal Appeal No.
39 of 2021 (Yogesh V. State of U.P. and
Ors.) under Section 101 of the JJ Act,
arising out of order dated 24.05.2021
passed by Incharge Principal Magistrate,
Juvenile Justice Board in Case No. 77 of
2020, arising out of Crime No. 568 of
2020, under Sections 147, 148, 149, 323,
342, 302/34 of the India Penal Code2 at
Police
Station
-Vrindavan,
DistrictMathura.
638 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Heard Shri Saurabh Pandey,
appearing along with Shri Suresh Chandra
Pandey, learned counsel for the revisionist
and Shri Vinod Kant, learned Additional
Advocate General assisted by Shri Pankaj
Saxena, learned Additional Government
Advocate-I for the State-Opposite party.

4. The facts of the case, as reflected
from the averments in the affidavit
accompanying the memo of revision,
indicate that the proceedings were initiated
pursuant to an FIR dated 22.09.2020
registered as Case Crime no. 568 of 2020,
under Sections 147, 148, 149, 323, 342,
302/34 of the Penal Code at Police StationVrindavan, District-Mathura. As per the
FIR allegations the revisionist along with
other co-accused had tied up the victim on
to a chaff cutter and had beaten him with
sticks till he died, and thereafter, they had
fled away from the scene of crime. The
postmortem report showed cause of death
as shock due to ante-mortem head injury.
The statement of the witnesses were
recorded during the course of investigation
and thereafter the police filed charge sheet
under Sections 147, 148, 149, 323, 342,
302/34 of the Penal Code.

5. The age of the revisionist was
determined by the Juvenile Justice Board3
vide order dated 22.03.2021, as 16 years 6
months and 16 days on the date of the
incident. The District Probation Officer
submitted its report before the Board on
10.02.2021
and
thereafter,
the
bail
application was rejected by the Board by
order dated 24.05.2021 after recording that
there was lack of family control over the
accused and that his involvement in the
heinous offence was due to his association
with persons of criminal nature and for the
reason of lack of moral values and family
control there was possibility of his
influencing and destroying the prosecution
evidence. It was observed that there was a
possibility of the accused being exposed to
moral, physical and psychological danger
and that his release would defeat the ends
of justice. Accordingly, the bail application
was
rejected.
Aggrieved
against
the
aforesaid order, the revisionist preferred an
appeal under Section 101 which was also
rejected
by
the
Additional
Sessions
Judge/Special Judge POCSO Act, Mathura
upon due consideration of the facts and
circumstances of the case and the material
on record, reiterating the findings recorded
by the Board.

6. The principal contention which is
sought to be put forward by the counsel for
the revisionist is that in a revision which
arises out of an order passed by the Board
under Section 12 of the JJ Act, rejecting the
bail application, which has subsequently
been affirmed in an appeal under Section
101, the complainant/victim cannot be said
to be a necessary party entitled to an
opportunity of hearing.

7. Learned counsel for the revisionist
has submitted that an application for bail on
behalf of the child in conflict with law is
firstly required to be filed before the Board
under Section 12 of the JJ Act, and as per
the statutory provisions there is no
requirement to provide any opportunity of
hearing to the complainant/victim while
deciding the bail application. Against the
order of the Board rejecting the bail
application, there is a provision of appeal
under Section 101 which also does not
stipulate providing of a hearing to the
complainant/victim. It is submitted that in a
case where the application for bail of the
child in conflict with law has been rejected
under Section 12 of the JJ Act, and the
appeal
preferred
there
against
under
9 All Yogesh Vs. State of U.P. & Anr.
639
Section 101 has also been turned down, the
remedy there-against is by filing a revision
before the High Court under Section 102 of
the JJ Act.

8. Learned counsel has strenuously
urged that looking to the scheme of the Act,
which is in the nature of beneficial
legislation there being no clear provision
with regard to grant of any opportunity to
the complainant/victim at the stage of
hearing of the bail application under
Section 12 or at the stage of appeal under
Section 101, there is no reason as to why a
notice to the complainant/victim should be
held necessary at the stage of revision
under Section 102. It is submitted that
looking to the legislative intent of the
enactment there is no such indication which
may require providing of opportunity of
hearing
to
the
complainant
before
proceeding to consider the prayer for bail at
the stage of revision.

9. It was further submitted that an
order of bail to a child in conflict with law
cannot be held to cause any prejudice to the
complainant/victim so as to require grant of
opportunity of hearing in a revision under
Section 102.

10. Attention has been drawn to
Section 15A of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities)
Act, 18894 to contend that in terms of
Section 15A thereof, there is a clear
mandate for notice to the victim or his
dependent and in case legislature had
intended to grant the right of hearing to the
complainant in proceedings relating to bail
under the JJ Act, a similar provision could
have been provided herein also. In the
absence of any such specific provision, the
requirement of granting an opportunity of
hearing to the complainant/victim could not
be read into the statute as a condition
precedent for hearing of the revision.

11. Learned counsel has sought to
contend that the practice of impleading the
parties in a revision relating to a bail matter
under Section 102 of the JJ Act has the
effect of causing unwarranted delay in the
hearing of the bail application relating to a
juvenile. To support his submissions,
learned counsel for the revisionist has
placed reliance upon the order in X S/o
Laxman vs. State, Through Pp and
Another5.

12. Responding to the aforesaid
contention learned Additional Advocate
General has submitted that as per terms of
the proviso to Section 102, there being a
clear mandate that the High Court shall not
pass
any
order
under
this
section
prejudicial to any person without giving
him a reasonable opportunity of being
heard,
the
complainant/victim
would
necessarily be required to be heard in a
revision filed by the child in conflict with
law in a bail matter. It is pointed out that in
terms of the proviso to Section 102, any
order to be passed on a revision filed by the
accused, may have the effect of being
prejudicial
to
the
interest
of
the
complainant/victim
and
therefore,
a
reasonable opportunity of being heard
ought to be accorded to the complainant.
He submits that any other interpretation
would render the proviso to the section
redundant.

13. Learned Additional Advocate
General has further submitted that the JJ
Act, 2015 has been promulgated as a
beneficial enactment with the purpose of
reform and rehabilitate the child in conflict
with law and as such no analogy can be
drawn with that of an adult offender facing
640 INDIAN LAW REPORTS ALLAHABAD SERIES
trial before a regular criminal court. He has
submitted that in terms of the scheme of the
Act, in a case when the bail of the juvenile
is rejected, he is not sent to a jail but only
to an observation home with the object of
providing him avenues for reform. It is
pointed out that the proviso to Section 12
indicates that the bail application can be
rejected if there appears reasonable grounds
for believing that the release is likely to
bring that person into association with any
known criminal or expose the said person
to moral, physical and psychological
danger or the person's release would defeat
the ends of justice.

14. It is also submitted that one of the
grounds on which the bail may be refused
would be a situation where the person's
release would defeat the ends of justice. It
is contended that this would bring into fore
the rights of the victim/complainant and in
a particular set of facts, one of the grounds
to refuse grant of bail to the juvenile would
be whether his release would defeat the
ends of justice. It is submitted that the
proviso to Section 12(1) would indicate
that the victim/complainant's interest may
also be a ground for denial of bail.
Referring to Section 102 of the JJ Act,
2015 which provides the forum of revision,
it is pointed out that in terms of the proviso,
the High Court is not to pass an order under
the section prejudicial to any person
without
giving
him
a
reasonable
opportunity of being heard. Submission is
that a conjoint reading of the proviso to
Section
12(1)
which
enumerates
the
grounds for denial of bail together with the
proviso to Section 102 would indicate the
clear intention of the legislature to grant an
opportunity to the victim/complainant to be
heard at the stage of revision.

15. Rival contentions with regard to
the requirement of a notice to the
complainant/victim in a revision filed under
Section 102 of the JJ Act in a matter
relating to consideration of bail to a child in
conflict
with
law,
now
fall
for
consideration.

16. The JJ Act, 2015 was enacted to
consolidate and amend the law relating to
children alleged and found to be in conflict
with law and children in need of care and
protection by catering to their basic needs
through
proper
care,
protection,
development,
treatment,
social
reintegration, by adopting a child friendly
approach in the adjudication and disposal
of matters in the best interest of children
and for their rehabilitation.

17. The enactment was made in
furtherance of the powers and duties
conferred under various provisions of the
Constitution, in particular, clause (3) of
article 15, clauses (e) and (f) of article 39,
article 45 and article 47, wherein the State
is to ensure that all the needs of children
are met and that their basic human rights
are fully protected. The enactment also
takes into consideration the standards
prescribed
by
various
international
conventions to which the Government of
India is a party.

18. The provisions under the JJ Act,
2015, which are relevant for the purposes
of the controversy at hand and would be
required to be referred, are as follows:-

"2. Definitions.--In this Act,
unless the context otherwise requires,--

......
9 All Yogesh Vs. State of U.P. & Anr.
641

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

(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;

(14) "child in need of care and
protection" means a child--

(i) who is found without any
home or settled place of abode and without
any ostensible means of subsistence; or

(ii) who is found working in
contravention of labour laws for the time
being in force or is found begging, or living
on the street; or

(iii) who resides with a person
(whether a guardian of the child or not) and
such person--

(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

(b) has threatened to kill, injure,
exploit or abuse the child and there is a
reasonable likelihood of the threat being
carried out; or

(c) has killed, abused, neglected
or exploited some other child or children
and there is a reasonable likelihood of the
child in question being killed, abused,
exploited or neglected by that person; or

(iv) who is mentally ill or
mentally or physically challenged or
suffering from terminal or
incurable
disease, having no one to support or look
after or having parents or guardians unfit to
take care, if found so by the Board or the
Committee; or

(v) who has a parent or guardian
and such parent or guardian is found to be
unfit or incapacitated, by the Committee or
the Board, to care for and protect the safety
and well-being of the child; or

(vi) who does not have parents
and no one is willing to take care of, or
whose
parents
have
abandoned
or
surrendered him; or

(vii) who is missing or run away
child, or whose parents cannot be found
after making reasonable inquiry in such
manner as may be prescribed; or

(viii) who has been or is being or
is likely to be abused, tortured or exploited
for the purpose of sexual abuse or illegal
acts; or

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

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

(xi) who is victim of or affected
by any armed conflict, civil unrest or
natural calamity; or

(xii) who is at imminent risk of
marriage before attaining the age of
marriage
and
whose
parents,
family
members, guardian and any other persons
are
likely
to
be
responsible
for
solemnisation of such marriage;

(20) "Children's Court" means a
court established under the Commissions
642 INDIAN LAW REPORTS ALLAHABAD SERIES
for Protection of Child Rights Act, 2005 (4
of 2006) or a Special Court under the
Protection
of
Children
from
Sexual
Offences Act, 2012 (32 of 2012), wherever
existing and where such courts have not
been designated, the Court of Sessions
having jurisdiction to try offences under the
Act;

(33) "heinous offences" includes
the offences for which the minimum
punishment under the Indian Penal Code
(45 of 1860) or any other law for the time
being in force is imprisonment for seven
years or more;

(35) "juvenile" means a child
below the age of eighteen years;

(40) "observation home" means
an observation home established and
maintained in every district or group of
districts by a State Government, either by
itself, or through a voluntary or nongovernmental
organisation,
and
is
registered as such, for the purposes
specified in sub-section (1) of section 47;

(45) "petty offences" includes the
offences
for
which
the
maximum
punishment under the Indian Penal Code
(45 of 1860) 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 (45 of 1860) or any other
law for the time being in force, is
imprisonment between three to seven years;

10.
Apprehension
of
child
alleged to be in conflict with law.--(1) As
soon as a child alleged to be in conflict
with law is apprehended by the police, such
child shall be placed under the charge of
the special juvenile police unit or the
designated Child Welfare Police Officer,
who shall produce the child before the
Board without any loss of time but within a
period
of
twenty-four
hours
of
apprehending the child excluding the time
necessary for the journey, from the place
where such child was apprehended:

Provided that in no case, a child
alleged to be in conflict with law shall be
placed in a police lockup or lodged in a jail.

(2) The State Government shall
make rules consistent with this Act,--

(i) to provide for persons through
whom (including registered voluntary or
non-governmental organisations) any child
alleged to be in conflict with law may be
produced before the Board;

(ii) to provide for the manner in
which the child alleged to be in conflict
with law may be sent to an observation
home or place of safety, as the case may be.

12. Bail to a person who is
apparently a child alleged to be in
conflict with law.--(1) When any person,
who is apparently a child and is alleged to
have committed a bailable or non-bailable
offence, is apprehended or detained by the
police or appears or brought before a
Board, such person shall, notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) or in any other
law for the time being in force, be released
on bail with or without surety or placed
under the supervision of a probation officer
or under the care of any fit person:

Provided that such person shall
not be so released if there appears
9 All Yogesh Vs. State of U.P. & Anr.
643
reasonable grounds for believing that the
release is likely to bring that person into
association with any known criminal or
expose the said person to moral, physical or
psychological danger or the person's release
would defeat the ends of justice, and the
Board shall record the reasons for denying
the bail and circumstances that led to such
a decision.

(2) When such person having
been apprehended is not released on bail
under sub-section (1) by the officer-incharge of the police station, such officer
shall cause the person to be kept only in an
observation home in such manner as may
be prescribed until the person can be
brought before a Board.

(3) When such person is not
released on bail under sub-section (1) by
the Board, it shall make an order sending
him to an observation home or a place of
safety, as the case may be, for such period
during the pendency of the inquiry
regarding the person, as may be specified
in the order.

(4) When a child in conflict with
law is unable to fulfil the conditions of bail
order within seven days of the bail order,
such child shall be produced before the Board
for modification of the conditions of bail.

14. Inquiry by Board regarding
child in conflict with law.--(1) Where a
child alleged to be in conflict with law is
produced before Board, the Board shall
hold an inquiry in accordance with the
provisions of this Act and may pass such
orders in relation to such child as it deems
fit under sections 17 and 18 of this Act.

(2) The inquiry under this section
shall be completed within a period of four
months from the date of first production of
the child before the Board, unless the
period is extended, for a maximum period
of two more months by the Board, having
regard to the circumstances of the case and
after recording the reasons in writing for
such extension.

(3) A preliminary assessment in
case of heinous offences under section 15
shall be disposed of by the Board within a
period of three months from the date of
first production of the child before the
Board.

(4) If inquiry by the Board under
sub-section (2) for petty offences remains
inconclusive even after the extended
period,
the
proceedings
shall
stand
terminated:

Provided that for serious or heinous
offences, in case the Board requires further
extension of time for completion of inquiry,
the same shall be granted by the Chief
Judicial Magistrate or, as the case may be,
the Chief Metropolitan Magistrate, for
reasons to be recorded in writing.

(5) The Board shall take the
following steps to ensure fair and speedy
inquiry, namely:--

(a) at the time of initiating the
inquiry, the Board shall satisfy itself that
the child in conflict with law has not been
subjected to any ill-treatment by the police
or by any other person, including a lawyer
or probation officer and take corrective
steps in case of such ill-treatment;

(b) in all cases under the Act, the
proceedings shall be conducted in simple
manner as possible and care shall be taken
to ensure that the child, against whom the
644 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings have been instituted, is given
child-friendly
atmosphere
during
the
proceedings;

(c) every child brought before the
Board shall be given the opportunity of
being heard and participate in the inquiry;

(d) cases of petty offences, shall
be disposed of by the Board through
summary proceedings, as per the procedure
prescribed under the Code of Criminal
Procedure, 1973 (2 of 1974);

(e) inquiry of serious offences
shall be disposed of by the Board, by
following the procedure, for trial in
summons cases under the Code of Criminal
Procedure, 1973 (2 of 1974);

(f) inquiry of heinous offences,--

(i) for child below the age of
sixteen years as on the date of commission
of an offence shall be disposed of by the
Board under clause (e);

(ii) for child above the age of
sixteen years as on the date of commission
of an offence shall be dealt with in the
manner prescribed under section 15.

16. Review of pendency of
inquiry.--
(1)
The
Chief
Judicial
Magistrate or the Chief Metropolitan
Magistrate shall review the pendency of
cases of the Board once in every three
months, and shall direct the Board to
increase the frequency of its sittings or may
recommend the constitution of additional
Boards.

(2) The number of cases pending
before the Board, duration of such
pendency, nature of pendency and reasons
thereof shall be reviewed in every six
months by
a
high
level
committee
consisting of the Executive Chairperson of
the State Legal Services Authority, who
shall be the Chairperson, the Home
Secretary, the Secretary responsible for the
implementation of this Act in the State and
a representative from a voluntary or nongovernmental organisation to be nominated
by the Chairperson.

(3) The information of such
pendency shall also be furnished by the
Board to the Chief Judicial Magistrate or
the Chief Metropolitan Magistrate and the
District Magistrate on quarterly basis in
such form as may be prescribed by the
State Government.

17. Orders regarding a child
not found to be in confilct with law.-- (1)
Where a Board is satisfied on inquiry that
the child brought before it has not
committed
any
offence,
then
notwithstanding
anything
contrary
contained in any other law for the time
being in force, the Board shall pass order to
that effect.

(2) In case it appears to the Board
that the child referred to in sub-section (1)
is in need of care and protection, it may
refer the child to the Committee with
appropriate directions.

18. Orders regrding 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
9 All Yogesh Vs. State of U.P. & Anr.
645
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 childs 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 childs wellbeing 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 childs 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 Childrens Court may
decide that--
646 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.

(2) The Children's Court shall
ensure that the final order, with regard to a
child in conflict with law, shall include an
individual care plan for the rehabilitation of
child, including follow-up by the probation
officer or the District Child Protection Unit
or a social worker.

(3) The Childrens Court shall
ensure that the child who is found to be in
conflict with law is sent to a place of safety
till he attains the age of twenty-one years
and
thereafter,
the
person
shall
be
transferred to a jail:

Provided that the reformative
services including educational services,
skill development, alternative therapy such
as counselling, behaviour modification
therapy, and psychiatric support shall be
provided to the child during the period of
his stay in the place of safety.

(4) The Children's Court shall
ensure that there is a periodic follow-up
report every year by the probation officer
or the District Child Protection Unit or a
social worker, as required, to evaluate the
progress of the child in the place of safety
and to ensure that there is no ill-treatment
to the child in any form.

(5) The reports under sub-section
(4) shall be forwarded to the Children's
Court for record and follow-up, as may be
required.

21. Order that may not be
passed against a child in conflict with
law.--No child in conflict with law shall be
sentenced to death or for life imprisonment
without the possibility of release, for any
such offence, either under the provisions of
this Act or under the provisions of the
Indian Penal Code (45 of 1860) or any
other law for the time being in force.

101. Appeals.--(1) Subject to the
provisions
of
this
Act,
any
person
aggrieved by an order made by the
Committee or the Board under this Act
may, within thirty days from the date of
such order, prefer an appeal to the
Children's Court, except for decisions by
the Committee related to Foster Care and
Sponsorship After Care for which the
appeal shall lie with the District Magistrate:

Provided
that
the
Court
of
Sessions, or the District Magistrate, as the
case may be, may entertain the appeal after
the expiry of the said period of thirty days,
if it is satisfied that the appellant was
prevented by sufficient cause from filing
the appeal in time and such appeal shall be
decided within a period of thirty days.

(2) An appeal shall lie against an
order of the Board passed after making the
preliminary assessment into a heinous
offence under section 15 of the Act, before
the Court of Sessions and the Court may,
while deciding the appeal, take the
assistance of experienced psychologists and
9 All Yogesh Vs. State of U.P. & Anr.
647
medical specialists other than those whose
assistance has been obtained by the Board
in passing the order under the said section.

(3) No appeal shall lie from,--

(a) any order of acquittal made by
the Board in respect of a child alleged to
have committed an offence other than the
heinous offence by a child who has
completed or is above the age of sixteen
years; or

(b)
any
order
made
by
a
Committee in respect of finding that a
person is not a child in need of care and
protection.

(4) No second appeal shall lie
from any order of the Court of Session,
passed in appeal under this section.

(5) Any person aggrieved by an
order of the Children's Court may file an
appeal before the High Court in accordance
with the procedure specified in the Code of
Criminal Procedure, 1973 (2 of 1974).

102. Revision.--The High Court
may, at any time, either on its own motion or
on an application received in this behalf, call
for the record of any proceeding in which any
Committee or Board or Children's Court, or
Court has passed an order, for the purpose of
satisfying itself as to the legality or propriety
of any such order and may pass such order in
relation thereto as it thinks fit:

Provided that the High Court shall
not pass an order under this section
prejudicial to any person without giving him
a reasonable opportunity of being heard.

103. Procedure in inquiries,
appeals and revision proceedings.--(1)
Save as otherwise expressly provided by
this Act, a Committee or a Board while
holding any inquiry under any of the
provisions of this Act, shall follow such
procedure as may be prescribed and subject
thereto, shall follow, as far as may be, the
procedure laid down in the Code of
Criminal Procedure, 1973 (2 of 1974) for
trial of summons cases.

(2) Save as otherwise expressly
provided by or under this Act, the
procedure to be followed in hearing appeals
or revision proceedings under this Act shall
be, as far as practicable, in accordance with
the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974)."

19. The procedure to be followed in
relation to children in conflict with law has
been provided under Chapter IV of the JJ
Act. Section 10 relates to apprehension of
child alleged to be in conflict with law. In
terms thereof, as soon as such a child is
apprehended by the police, he/she shall be
placed under the charge of the special
juvenile police unit or the designated Child
Welfare Police Officer, who shall produce
the child before the Board without any loss
of time but within a period of twenty-four
hours and it is provided that in no case, a
child alleged to be in conflict with law shall
be placed in a police lock-up or lodged in
jail. In terms of sub-section (2), the State
Government is to make rules to provide for
the manner in which the child alleged to be
in conflict with law may be sent to an
observation home or place of safety.

20. The provision with regard to grant
of bail to a child in conflict with law is
provided for under Section 12 of the JJ Act.
Sub-section (1) thereof provides that when
any person, who is apparently a child and is
alleged to have committed a bailable or
648 INDIAN LAW REPORTS ALLAHABAD SERIES
non-bailable offence, is apprehended or
detained by the police or appears or
brought before a Board, such person shall,
notwithstanding anything contained in the
Code of Criminal Procedure, 19736 or in
any other law for the time being in force,
be released on bail with or without surety
or placed under the supervision of a
probation officer or under the care of any
fit person. The rule under Section 12(1) is
therefore for grant of bail to a child in
conflict with law; the question with regard
to the merits of the case including the role
or complicity of a child in conflict with law
or
the
gravity
of
the
offence
notwithstanding. This is however subject to
the conditions under the proviso to subsection (1) whereunder bail can be denied.

21. T he grounds on which bail can be
denied to a juvenile as per terms of the
proviso to Section 12(1), are as follows: (i)
if there appears to be reasonable grounds
for believing that the release is likely to
bring that person in association with any
known criminal; or (ii) expose the said
person
to
moral,
physical
and
psychological danger; or (iii) the person's
release would defeat the ends of justice.

22. The Board, while denying bail, is
required to record the reasons and the
circumstances that led to such a decision. It
is therefore seen that the case for bail under
Section 12(1) has to be tested on three
parameters specified under the proviso and
in terms thereof bail is to be granted to the
juvenile/child in conflict with law except
where the case falls under any of the three
disentitling categories contemplated by the
proviso.

23. It is also to be noticed that in a
situation where the juvenile is not released
on bail under Section 12 (1), he is to be
kept only in an observation home, as per
sub-section (2), in a manner, as may be
prescribed, until he can be brought before
the Board. Further sub-section (3) provides
that when such person is not released on
bail under sub-section (1) by the Board, it
shall make an order sending him to an
observation home or a place of safety, as
the case may be, regarding the person, as
may be specified in the order.

24. The procedure of inquiry referred
to under sub-section (3) of Section 12 is
provided under Section 14 and in terms
thereof, the inquiry is to be completed
within a period of four months, unless the
period is extended, for a maximum period
of two more months by the Board, having
regard to the circumstances of the case and
after recording reasons in writing for such
extension.

25. Section 15 provides for a
preliminary assessment in case of a heinous
offence alleged to have been committed by
a child, who has completed or is above the
age of 16 years, and in terms of sub-section
(3) of Section 14, such preliminary
assessment is to be disposed of by the
Board within a period of three months from
the date of first production of the child
before the Board. This is subject to further
extension of time, in case the Board so
requires, which is to be granted by the
Chief
Judicial
Magistrate/Chief
Metropolitan Magistrate, as the case may
be, for reasons to be recorded in writing.
Sub-section (5) of Section 14 enjoins upon
the Board to take steps to ensure fair and
speedy inquiry.