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2025 DIGILAW 1643 (KER)

Xxx v. State Of Kerala

2025-06-11

BECHU KURIAN THOMAS

body2025
ORDER : BECHU KURIAN THOMAS, J. These two bail applications are filed by children in conflict with law having been arrayed in Crime No.182 of 2025 of Thamarassery Police Station. They seek their release on bail under section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the JJ Act'). 2. A brawl between a few students in the evening of 27.02.2025, turned out to be fatal to a young boy of fifteen years. Petitioners along with others allegedly assaulted a minor with a ‘nunchaku’ ( a weapon consisting of two sticks connected with a short chord), inflicting grievous injuries on his head, and later, the injured succumbed to his injuries. A crime was initially registered for the offences under sections 126(2), 189(2), 191(2), 109 and 190 of the Bharatiya Nyaya Sanhita, 2023 (for short ‘the BNS ’), and after the death of the minor boy, the offence under section 103 of the BNS was also incorporated. 3. Petitioners were apprehended and produced before the Juvenile Justice Board (for short the ‘JJB’) on 01.03.2025, which rejected their bail applications, and sent them to the Observation Home, Kozhikode. Petitioners thereafter approached the Sessions Court, Kozhikode, but without any success, as their applications were dismissed. Afterwards, they approached this Court through separate bail applications, which were also dismissed by a common order dated 25.04.2025. Soon thereafter, petitioners filed these bail applications pointing out change in circumstances and seeking their release on bail. 4. Sri. K.M. Firoz, the learned counsel for the petitioners contended that the children in conflict with law have been in custody from 01.03.2025 and some of them, from 04.03.2025 onwards. According to the learned counsel, almost 90 days are over and petitioners continue to remain in the Observation Home, which is contrary to the scheme of the statute. The learned counsel asserted that the scope of section 12 of the JJ Act have not been properly comprehended by the courts since denial of bail to a juvenile must be an exception. The learned counsel referred to various decisions in support of his contentions. It was also submitted that considering the scheme of the JJ Act, petitioners ought to be released on bail. 5. Sri. The learned counsel referred to various decisions in support of his contentions. It was also submitted that considering the scheme of the JJ Act, petitioners ought to be released on bail. 5. Sri. C.K Suresh, the learned Public Prosecutor contended that the children in conflict with law (for short ‘CCL’) had committed a brutal and pre- planned murder of another young student and hence releasing them on bail would send a wrong message to the society. It was also submitted that granting them bail may even result in harm to the CCL themselves, as the public are agitated by the crime and their release will expose them to psychological, moral and physical danger and also defeat the ends of justice. The learned Public Prosecutor further pointed out that the materials collected during investigation has even revealed the support given by one of the parents of a CCL in criminal activities and therefore the parents are not fit persons to place the petitioners in custody and that even the petitioners will become associated with other criminals in the society and hence they ought not to be released on bail. 6. Sri. Kodoth Sreedharan, the learned counsel for the defacto complainant in his impressive arguments submitted that keeping the CCL in an Observation Home itself is a measure of reformative action and therefore bail ought not to be granted. It was also submitted that the findings in the order of this Court on 25.04.2024, while dismissing their earlier bail applications, restricts the consideration of another application soon thereafter. It was submitted, by referring to the provisions of section 12 of the JJ Act, that the power under the said provision has to be exercised by the JJB in exercise of its original jurisdiction and not by this Court, since petitioners’ applications before the Sessions Court and this Court have already been dismissed once. It was further pointed out that section 12 read with the provisions of section 1(4) of the JJ Act restricts the power of this Court to consider these applications again in its original jurisdiction under section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the BNSS ’). The learned counsel referred to the decision in State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Others [ (2003) 8 SCC 50 ] apart from the decision in Tejram Nagrachi (Juvenile) v. State of Chattisgarh [2019 CriLJ 4017]. 7. The learned counsel referred to the decision in State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Others [ (2003) 8 SCC 50 ] apart from the decision in Tejram Nagrachi (Juvenile) v. State of Chattisgarh [2019 CriLJ 4017]. 7. On an appreciation of the rival contentions, the following issues arise for consideration; (i). Can the High Court in its original jurisdiction consider these bail applications under section 12 of the JJ Act? (ii). Can the retention of a child in conflict with law in an Observation Home be treated as a reformative measure and retain the CCL in such Home for longer periods? and (iii). Are the petitioners entitled to be released on bail? 8. Before addressing the above issues, it is necessary to have a brief insight into the salient features of the JJ Act to the extent it is relevant to the case on hand. Petitioners were apprehended, alleging the commission of murder of another boy, who was only 15 years in age. Petitioners are all students of the same age as the deceased. Legally, petitioners cannot be tried as adults, despite the heinous nature of their crime. 9. The JJ Act deals with children who are in conflict with law or those who are in need of care and protection. Distinct from the conservative concepts of retribution and repression as being the objectives of criminal justice, the JJ Act seeks to rehabilitate and reform the juvenile in conflict with law by providing a child friendly approach in the adjudication and disposal of matters related to a juvenile. Despite laying down a child friendly approach in all the procedures under the JJ Act with the paramount consideration of best interest of the child as a priority, the statute focuses on providing social reintegration of a child in conflict with law leading towards reformation. While section 2(12) of the Act defines a ‘child’ as a person who has not completed the age of 18, a ‘child in conflict with law’ is defined in section 2(13), as 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 offence. Of course, in respect of children above the age of 16, who have committed a heinous offence, the statute enables such juveniles to be treated as adults. 10. Of course, in respect of children above the age of 16, who have committed a heinous offence, the statute enables such juveniles to be treated as adults. 10. The Juvenile Justice Boards are responsible primarily for handling children in conflict with law. When a child in conflict with law is brought before the JJB, section 12 of the JJ Act stipulates as a mandate, that the child shall be released on bail. Releasing the child in conflict with law on bail is the underlying feature of the provision and denial, an exception. Section 3 of the JJ Act lays down the fundamental principles that should be borne in mind by all agencies while implementing the provisions of the JJ Act. The best interest of a juvenile shall, as per section 3(iv) of the JJ Act, be the primary consideration, unlike the general law. Further, concepts like family as having the primary responsibility of care and protection of the child, adoption of positive measures to provide an inclusive and enabling environment to reduce vulnerabilities of children, the right to be reunited with his family at the earliest and to be restored to the same socio-economic and cultural status as the child was in, before coming under the purview of the JJ Act, placing a child in institutional care to be the last resort, are various guiding factors while implementing the JJ Act. Thus the thread that runs through the entire gamut of the JJ Act is rehabilitation of the child to enable him to reintegrate into the society and ultimately pave the way for reformation of the child in conflict with law. The above salient aspects of the JJ Act are required to be borne in mind while dealing with the issues arising in this case. Issue No. (i). Can the High Court in its original jurisdiction consider these bail applications under section 12 of the JJ Act? 11. To answer the question mentioned above, it is appropriate to extract Section 12(1) of the JJ Act, which reads as follows: “ 12. Issue No. (i). Can the High Court in its original jurisdiction consider these bail applications under section 12 of the JJ Act? 11. To answer the question mentioned above, it is appropriate to extract Section 12(1) of the JJ Act, which reads as follows: “ 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 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 persons 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.” 12. A reading of the above extracted provision will reveal that, in matters of bail, by virtue of the non obstante clause, a child, alleged to be in conflict with law has to be dealt with under section 12 of the Act. Apart from the non obstante clause in the said provision, section 5 of BNSS also makes it evident that when a child in conflict with law is apprehended or detained by the police, the question of grant of bail has to be dealt with by the said provision and none else. Of course, the situation is different when the CCL seeks for an anticipatory bail as held in X v. State of Kerala in ( 2018 (3) KHC 223 ) . 13. Notwithstanding the non applicability of section 483 of BNSS , the question is whether the High Court can consider bail applications in its original jurisdiction in respect of juveniles. In this context, reference to section 8 of the JJ Act is necessary. “ 8. 13. Notwithstanding the non applicability of section 483 of BNSS , the question is whether the High Court can consider bail applications in its original jurisdiction in respect of juveniles. In this context, reference to section 8 of the JJ Act is necessary. “ 8. Powers, functions and responsibilities of the Board.— (1) Notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, the Board constituted for any district shall have the power to deal exclusively with all the proceedings under this Act, relating to children in conflict with law, in the area of jurisdiction of such Board. (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Children’s Court, when the proceedings come before them under section 19 or in appeal, revision or otherwise. (3)xxx xxx xxx” 14. As per the above provision, the power conferred on the JJB can be exercised by the High Court if the matter comes before it in appeal, revision or otherwise. It needs no deliberation that when it is a matter that comes before the High Court in appeal or revision, the powers of the High Court are co- extensive with that of the JJB. However, the dispute arises whether de hors an appeal or revision, can the High Court exercise the powers of JJB. 15. Under the erstwhile Code of Criminal Procedure, 1973 as well as the present BNSS , apart from appeal and revision, the only other method in which a criminal matter can come before the High Court is in its original jurisdiction. Normally when a general word is preceded by a specific word, the general word must be interpreted in a restricted sense and in the same manner as the specific word as per the rule of ejusdem generis. However, when such a restricted interpretation is adopted, if the meaning becomes obscure and leads to an ambiguity not contemplated by the statute, such an interpretation need not be adopted. The principle of ejusdem generis must be applied only when the context of the whole scheme of legislation requires it and if the scheme does not require such a restricted meaning to be attached to the words of general import, it is the duty of the court to give the words the plain and ordinary meaning. The principle of ejusdem generis must be applied only when the context of the whole scheme of legislation requires it and if the scheme does not require such a restricted meaning to be attached to the words of general import, it is the duty of the court to give the words the plain and ordinary meaning. Reference to the decision in Smt. Lila Vati Bai v. State of Bombay [ AIR 1957 SC 521 ] is relevant for the said proposition. 16. Apart from the above, the legislation under consideration is a beneficial legislation. In the context of the JJ Act, an interpretation has to be adopted that advances the cause of the subject for whose benefit the legislation was made and not to frustrate the intent of the legislature. Thus, when two views are possible, in the matter of a beneficial legislation, an expansive interpretation must be adopted to enable a wider interpretation to favour the subject of the legislation. 17. The JJ Act confers power upon the High Court to deal with a matter in the same manner as a JJB would, while the High Court exercises the powers in appeal and revision. When the same powers of the JJB can be exercised by the High Court in appeal and revision, there is no reason to restrict the scope of exercise of power by the High Court in its original jurisdiction as well. A contrary interpretation would go against the purpose of the enactment. Of course, when the High Court considers a matter in its original jurisdiction, it is always open to the court to decide whether to relegate the juvenile to approach the JJB or not. However, that is a matter of discretion. This Court is fortified in the above proposition by the decisions of the Delhi High Court in CCL ‘A’ v. State (NCT of Delhi) [2021 CriLJ 1251] and that of the Madhya Pradesh High Court in Child in Conflict with Law v. State of M.P. and Another [2022 CriLJ 2358]. Hence, this Court is of the considered view that the scheme of the JJ Act enables the High Court to consider an application for bail in its original jurisdiction under section 12 of the JJ Act read with section 8(2) of the JJ Act. Issue No. (ii). Hence, this Court is of the considered view that the scheme of the JJ Act enables the High Court to consider an application for bail in its original jurisdiction under section 12 of the JJ Act read with section 8(2) of the JJ Act. Issue No. (ii). Can the retention of a child in conflict with law in an Observation Home be treated as a reformative measure and retain the CCL in such Home for longer periods? 18. An Observation Home is defined in section 2(40) of the JJ Act to mean 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 non-governmental organisation, and is registered as such, for the purposes specified in sub-section (1) of section 47. As per the said provision, the Government is obliged to maintain either by itself or through other organisations, Observation Homes for temporary reception, care and rehabilitation of any child alleged to be in conflict with law, during the pendency of any inquiry under this Act. As the provision itself specifies, an Observation Home is for the temporary reception, care and rehabilitation of a child in conflict with law during the pendency of an inquiry under the Act. Though retention of a child in conflict with law in an Observation Home is, to an extent, a measure of rehabilitation, continuing a child for long periods in such home cannot be said to be in the best interests of a child, unless there are other compelling reasons. 19. Further, as per section 3 of the JJ Act, while administering the statute, every child is given a right to be reunited with his family at the earliest and restored to the same socio economic and cultural status that he was in, before coming under the purview of the Act, unless it is not in his best interest. Even section 12 of the JJ Act endorses the said principle of releasing the CCL on bail rather than refusing it. Therefore, long periods of retention in Observation Home without being reunited with his family cannot be said to be in the best interest of the child. In this context it needs to be mentioned that the child's ability to develop to his full potential is a consideration, while implementing the provisions of the Act. Therefore, long periods of retention in Observation Home without being reunited with his family cannot be said to be in the best interest of the child. In this context it needs to be mentioned that the child's ability to develop to his full potential is a consideration, while implementing the provisions of the Act. Hence, while interpreting the provisions of the Act, this Court cannot be oblivious of its scheme and the guiding principles laid down in section 3 of the JJ Act. Viewed in the above perspective, the continued retention of juveniles in Observation Home is against the purport of the Act itself. Issue No. (iii). Are the petitioners entitled to be released on bail? 20. Grant of bail to a juvenile is the norm under section 12 of the JJ Act and its refusal, an exception. The mandate of the statute is not to detain a juvenile but to release him. Bail ought to be denied to a juvenile only if the exceptions stipulated in the proviso to section 12(1) of JJ Act are satisfied. 21. In this context, it is relevant to refer to the observations in Jitendra Singh and Another v. State of Uttar Pradesh [ (2013) 11 SCC 193 ] . While dealing with bail under the erstwhile Juvenile Justice Act, which is almost in pari materia with the present statute, it was observed by the Supreme Court that, “the provision dealing with bail (Section 12 of the Act) places a burden for denying bail on the prosecution. Ordinarily, a juvenile in conflict with law shall be released on bail, but he may not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice”. Similarly, in the decision in Juvenile in Conflict with Law V v. State of Rajasthan and Another [2024 SCC Online SC 5297] it has been observed that from the phraseology used in sub section (1) of section 12 of the JJ Act, a juvenile in conflict with law has to be necessarily released on bail with or without sureties or be placed under supervision of a probation officer or under the care of any fit person unless the proviso is applicable. 22. 22. The proviso to section 12(1) of the JJ Act specifies when bail can be denied to a juvenile. Those factors are (i) if the juvenile is released on bail he may come into association with any known criminal, or (ii) releasing the juvenile will expose him to moral, physical or psychological danger, or (iii) the release would defeat the ends of justice. As observed earlier, the burden to prove the existence of the above factors for denying bail to a CCL, as per the proviso to section 12(1) of JJ Act is entirely on the prosecution. 23. In the instant case, the JJB, the Sessions Court as well as this Court had dismissed the bail applications earlier, stating that severe agitations are going on and the chances of CCL being attacked by the public exists, which exposes them to psychological, physical and moral danger. The JJB had, after referring to every ground specified in the proviso to section 12(1) of the JJ Act, came to the conclusion that the offence was committed when the children were in the custody and care of the parents and therefore the parents are not fit persons to be placed with their custody and also that there are possibilities of the CCL being associated with other criminals in the society. The learned Sessions Judge, after noticing the premeditation to commit the crime, entered a finding that they are not entitled to be released on bail since it would amount to a failure of justice especially as it was at the initial stage of investigation. Subsequently, a learned single Judge of this Court also dismissed the bail applications after observing that their release would be a threat to their own safety and expose them to physical as well as psychological danger. 24. These applications have been filed subsequent to the above dismissal, pointing out change in circumstances. Since this is not an appeal, the reasons that weighed with the JJB and the Sessions Court are not matters open for review or reconsideration. However, those reasons cannot be ignored by this Court either, when these applications are being considered in exercise of the original jurisdiction. Since this is not an appeal, the reasons that weighed with the JJB and the Sessions Court are not matters open for review or reconsideration. However, those reasons cannot be ignored by this Court either, when these applications are being considered in exercise of the original jurisdiction. One of the main reasons for denying bail to the petitioners is an anonymous letter received by the Principal of the School where the CCL were studying, stating that if they are permitted to write the Secondary School Leaving Certificate Examination they will be murdered. The examination was held in March. Petitioners wrote the said examination and have even cleared it. On an application filed by the petitioners, this Court has already permitted some of the petitioners to attend the interview for admission to the higher secondary course as well. The examination was written by the CCL around three months back and the results have also been published. Thus, the anonymous letter, relied upon as the basis for apprehending threat or danger to the CCL, can no longer be reckoned as a reason to apprehend danger to them. 25. When the word ‘grounds’ is qualified by the word ‘reasonable’, as seen in the proviso to section 12(1) of the JJ Act, it contemplates something more than just a reason. The ground must be real and of significance. The belief must be based on material which exists in reality. While interpreting the term in section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the Supreme Court had, in State of Kerala and Others v. Rajesh and Others (2020) 12 SCC 122 , explained the expression ‘reasonable grounds’ as meaning something more than prima facie grounds. The said interpretation can be a useful guide in the present case as well, while considering the proviso to section 12(1) of JJ Act. 26. An anonymous letter cannot, even after three months, be regarded as an existence of facts and circumstances that are sufficient to justify a satisfaction that there is danger or threat to the life of the CCL. Further, such anonymous letters cannot be the basis for concluding that the CCL continues to be in danger especially since, despite registering a crime and conducting investigation, the police have not been able to identify the person behind such a letter. Further, such anonymous letters cannot be the basis for concluding that the CCL continues to be in danger especially since, despite registering a crime and conducting investigation, the police have not been able to identify the person behind such a letter. In the absence of any material to show that the anonymous letter can be relied upon to have a reasonable ground to believe that the CCL will be in danger continuously, this Court is of the view that the said ground projected is not a reason to deny them bail. 27. It is apposite to mention that the seriousness of the offence or the manner in which the offence was committed, are not considerations under the proviso to section 12(1) of the JJ Act, while considering the question of release of a juvenile on bail. If such considerations are taken into reckoning, the whole focus of the statute will shift. The legislative intent, as evident from section 12 of the JJ Act, is to primarily release the juvenile on bail. When the liberty of a juvenile is sought to be curtailed by employing the exception, such exclusions must be construed strictly. If the nature of offence and the manner of its commission are to be considered, the statute should have been worded in such a manner that, in heinous offences, bail ought not to be granted. Such a legislative intent cannot be inferred by reading of the words used in the statute. Therefore the nature of offences committed by the CCL and the manner in which they were committed are not entirely relevant considerations, especially when the CCL are less than 16 years in age. 28. The terminology ‘association with any known criminal’ must be construed strictly. In the instant case, there is nothing to indicate that the CCL has any nexus or will, by any possibility, be associated with a known criminal. Vague allegations cannot be the basis for ignoring the statutory mandate. There is also nothing to indicate that ends of justice will be defeated if the petitioners are released on bail. No material has been produced by the prosecution to enable this Court to come to such a conclusion. 29. Petitioners have been placed in the Observation Home from 01-03-2025 and some of them from 04-03-2025. There is also nothing to indicate that ends of justice will be defeated if the petitioners are released on bail. No material has been produced by the prosecution to enable this Court to come to such a conclusion. 29. Petitioners have been placed in the Observation Home from 01-03-2025 and some of them from 04-03-2025. Some of the petitioners have been in the Observation Home for more than 101 days and some others for more than 98 days. Since this Court is of the view that further retention of the petitioners do not augur well in the light of the statutory intendment, petitioners are entitled to be released on bail. In the result, these applications are allowed on the following conditions:- (a) Petitioners shall be released on bail on each of their parents executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the Juvenile Justice Board having jurisdiction. (b) The parents of the petitioners shall file an affidavit that the petitioners will co-operate with all proceedings and will be produced as and when necessary and to keep them under observation and will also not allow them to be associated with any criminal or any undesirable persons. (c) The affidavit shall also undertake that the petitioners and their parents or relatives shall not intimidate or attempt to influence the witnesses; nor shall they attempt to tamper with the evidence. (d) The affidavit shall also undertake that petitioners shall not commit any similar offences while they are on bail. (e) The affidavit shall also undertake that petitioners shall not leave the country without the permission of the jurisdictional Court. In case of violation of any of the above conditions or if any modification or deletion of the conditions are required, the jurisdictional Court shall be empowered to consider such applications if any, and pass appropriate orders in accordance with law, notwithstanding the bail having been granted by this Court.