Checklist Toolkit for Special Judge(Pocso): Bail Applications in POCSO Act Cases

 Jurisdictional Considerations

 Critical Note: Special POCSO courts have exclusive jurisdiction for POCSO cases. Session courts cannot entertain anticipatory bail applications for POCSO offenses - only Special POCSO courts are empowered to do so. Regular session judges should refer such matters to designated Special POCSO courts.

Pre-Application Verification Checklist

Court Jurisdiction Verification

• Confirm if the court is a designated Special POCSO court

• Verify if case involves POCSO Act offenses exclusively or in combination with IPC sections

• Check if accused is a juvenile (below 18 years) requiring different procedural considerations

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Comprehensive Guide to Bail Applications in POCSO Act Cases: Legal Framework and Judicial Guidelines

 Mandatory Notice Requirements for Victim and Legal Representatives

The Bombay High Court has established crucial procedural requirements for bail applications in POCSO cases4. It is mandatory to issue notice of hearing of case and bail application to victim of an offence under POCSO Act. The court declared that Section 40 of the POCSO Act read with Rule 4 of the POCSO Rules necessarily require that the Legal Representative of the Child Victim, Parents, or Guardians as the case may be, is heard before releasing the suspected offender on Bail.

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Bombay HC: Whether child in conflict with law is not entitled to be released on bail as per S 12 of Juvenile justice Act if he is tried as adult?

 In the aforesaid circumstances, when the Children’s

Court has rejected his application, without adverting to the

said facts and also the statutory mandate of Section 12, is an

unfortunate part. Merely because, he is directed to be tried as

an adult, he cannot be denied the beneft of Section 12. I am

fortified by the earlier view taken by this Court in the case of

Sandeep Ayodhya Prasad Rajak (Bail Application No.3838 of

2021 decided on 22/08/2022) and also in the case of Prasad

Subhash Khade Vs. State of Maharashta (Bail Application

No.1647 of 2020 decided on 18/03/2021).{Para15}

16. In any case, the J.J.Act focuses on a principle of

presumption of innocence and on the principle of best interest

as well as principle of repatriation and restoration, by virtue of

which, the applicant, who is a juvenile, has a right to be reunited 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. 

 IN THE HIGH COURT OF BOMBAY

BAIL APPLICATION NO.2282 OF 2021

Date of Order: 21.10.2022

Shubham @ Bablu Milind Vs. The State Of Maharashtra

Hon'ble Judges/Coram:

Bharati Dangre, J.

Citation: MANU/MHOR/142201/2022,2022:BHC-AS:26901

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Uttarakhand HC Rules: Bail Applications Under Section 12 of Juvenile Justice Act to be Considered Even if Child Transferred for Adult Trial

 Even if a CIL is transferred for trial as an adult under Section 18(3) of the Act, his bail application shall be entertained under Section 12 of the Act. This view has been consistently discussed and followed in various judgments of various High Courts. In the case of Ccl A vs. State Nct of Delhi, MANU/DE/1914/2020 : (2020) 10 DEL CK 0155, the Hon'ble Delhi High Court has categorically held that, "even when a child is sent-up for trial as an adult before a Children's Court, the child does not become an adult or 'major', but is only to be treated differently considering the heinous nature of the offence alleged and consequent need for a stricter treatment of the offender, though still as a juvenile in conflict with law." The Hon'ble Delhi High Court further observed that, "even though a child may be sent-up for trial before the Children's Court as an adult, there is no provision in the JJ Act that requires any departure from considering the matter of release of such child on bail under section 12." Similar views have been expressed in the cases of Siddalinga SN Vs. State of Karnataka MANU/KA/0774/2023 : 2023:KHC(BB):9534, and Shubham Alias Bablu Milind Vs. State of Maharashtra, MANU/MHOR/142201/2022. {Para 10}

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Bail Application No. 273 of 2024

Decided On: 11.06.2024

X Vs. State of Uttarakhand

Hon'ble Judges/Coram:

Ravindra Maithani, J.

Citation:  MANU/UC/0195/2024.

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Karnataka HC: Bail Application of a minor to be considered under Section 12 of Juvenile Justice Act and not CrPC, even if the minor is to be tried as an Adult:

 Section 12(1) of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, or any other law for the time being in force, a child, who is produced before the Board, shall be released on bail subject to proviso to Section 12(1) of the Act of 2015. Therefore, it is very clear that even if the child is ordered to be tried as a adult, as provided under Section 18(3) of the Act of 2015, for the purpose of his bail application, Section 12 of the Act of 2015 would be applicable and his bail application cannot be considered under the provisions of Code of Criminal Procedure. As is evident from Section 12 of the Act of 2015, the only embargo in not releasing a child on bail is that there appears a reasonable ground that his release is likely to bring him into any association with any known criminal or expose him to moral, physical or psychological danger or that release of such a person would defeat the ends of justice. {Para 9}

10.  Petitioner's application which was filed under Section 439 of Cr.P.C. before the Special Court was required to be considered as if it is an application under Section 12 of the Act of 2015. Failure to do so has resulted in miscarriage of justice and petitioner's right to liberty has been effected.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Petition No. 9582 of 2024

Decided On: 24.10.2024

XXX Vs. State and Ors.

Hon'ble Judges/Coram:

S. Vishwajith Shetty, J.

 Citation: 2024:KHC:43235, MANU/KA/3957/2024.

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LLM Notes: Provisions Regarding Bail to Juveniles under Indian Law

 Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is the key legal provision governing bail for juveniles in India.

Main Provisions of Section 12

• Mandatory Bail: Any person who is apparently a child and is alleged to have committed a bailable or non-bailable offence, if apprehended or detained by police or brought before the Juvenile Justice Board (JJB), shall be released on bail with or without surety, or placed under the supervision of a probation officer or any fit person.

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Supreme Court: Juvenile Cannot Be Denied Bail Without Recording Finding That Proviso To S. 12(1) Juvenile Justice Act Is Applicable

Section 12 of the JJ Act reads thus:

“Section 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 abailable 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.

6. From the phraseology used in sub-section 1 of Section

12, a juvenile in conflict with law has to be necessarily

released on bail with or without surety or placed under

supervision of a probation officer or under the care of any

fit person unless proviso is applicable.

7. We have perused all the orders passed earlier by the JJ

Board, Special Court and High Court and specially the order

dated 11th December, 2023 passed by the JJ Board. There is

no finding recorded that the proviso to sub-Section 1 of

Section 12 is applicable to the facts of the case. Without

recording the said finding, bail could not have been denied

to juvenile in conflict with law.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

(Arising out of Special Leave Petition (Crl.) No.9566/2024)

JUVENILE IN CONFLICT WITH LAW Vs

THE STATE OF RAJASTHAN & ANR.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Augustine George Masih, JJ.

Citation:  MANU/SCOR/98552/2024

Dated: August 14, 2024.

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Whether juvenile who is tried as adult can be released on bail as per S 12 of Juvenile justice Act?

 On detailed analysis of the statutory scheme, the questions were answered as under :-

“26. Clearly therefore, even when a child is sent-up for trial as

an adult before a Children’s Court, the child does not become

an adult or ‘major’, but is only to be treated differently

considering the heinous nature of the offence alleged and

consequent need for a stricter treatment of the offender,

though still as a juvenile in conflict with law. It must be borne

in mind that the Legislature has created this categorization

based upon an assessment of the child’s “mental and physical

capacity to commit such offence, ability to understand the

consequences of the offence and the circumstances in which

he allegedly committed the offence”. If the intention of the

Legislature was that upon such assessment, the child would

de-jure become an adult, then the question of there being a

separate Children’s Court to try him with specific safeguards

provided for the trial would not arise. That however is not the

case.

28. With specific reference to the application at hand, it

bears mentioning that even though a child may be sent-up for

trial before the Children’s Court as an adult, there is no

provision in the JJ Act that requires any departure from

considering the matter of release of such child on bail under

section 12.

12. It is to be noted that the Juvenile Justice Act is a

beneficial piece of legislation and it must be construed by

taking into consideration the object behind it’s enactment,

being to provide for the care, protection, treatment,

development and rehabilitation of neglected or delinquent

juveniles. It is a beneficial legislation aimed at making

available the benefit of the Act to the neglected or delinquent

juveniles.

While construing the provision contained in Section 12,

which contemplate that a juvenile shall be released on bail

notwithstanding anything contained in the Cr.P.C. and Section

12 further stipulates that he may be released with or without

sureties, or may even place under the supervision of the

Probation Officer or under the care of any fit person. The only

embargo in not releasing such a person on bail is the proviso,

which prescribes that 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 person’s

release would defeat the ends of justice.

16. In any case, the J.J.Act focuses on a principle of

presumption of innocence and on the principle of best interest

as well as principle of repatriation and restoration, by virtue of

which, the applicant, who is a juvenile, has a right to be reunited

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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

BAIL APPLICATION NO.2282 OF 2021

Shubham @ Bablu Milind Suryavanshi Vs The State of Maharashtra 

CORAM: BHARATI DANGRE, J.

DATED : 21st OCTOBER, 2022

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Whether the court can refuse to release juvenile on bail on the ground that offence is non bailable?

 A plain reading of Section 12(1) of the Act reveals

that, any person, who is apparently a child, shall be

entitled to 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 distinction between bailable

or non-bailable offence has been done away with in respect

of a juvenile. In other words, every juvenile is entitled to be

released on bail except in circumstances where his/her

release will bring him/her into association with any known

criminal or expose him/her to moral, physical or

psychological danger or that his release would defeat the

ends of justice. As per the Section 2 (12) of the Act, ‘child’

means a person who has not completed eighteen years of

age.” {Para 7}

8. Admittedly, the revisionist was about 17 years of

age at the time of incident. From the perusal of the FIR,

the revisionist was driving the offending vehicle at the

relevant point of time; it is a matter of evidence whether the

matter falls within the definition of Section 304A IPC or

Section 304 IPC. As per Section 12 of the Act, the bail can

be refused if there appears reasonable ground for believing

that the release is likely to bring that person into

association with any known criminal. The word ‘known’

has not been used by the Parliament without purpose. By

use of the word ‘known’, the Parliament requires that the

Court must know the full particulars of the criminal with

whom the delinquent is likely to come into association. In

the case in hand, there is no such evidence on record

regarding the same; both the impugned orders are silent

about it; the bail of the delinquent was rejected simply on

the ground that the offence is heinous in nature while

Section 12 of the Act is silent about it.

9. In such view of the matter, this Court has no

hesitation in holding that the Courts below had erred in

law in not releasing the juvenile on bail.

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No.226 of 2021

Ayaan Ali  Vs The State of Uttarakhand 

Coram: Hon’ble R.C. Khulbe, J.

Dated: 16.02.2022

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Whether the Board can deny bail to a juvenile on the ground of seriousness of offence?

1)Section 12 of the Juvenile Justice (Care and Protection of

Children) Act, 2000 (herein after to be referred to as the Act) reads as

under:-

“12. Bail of juvenile – (1) When any person

accused of a bailable of non-bailable offence, and apparently a

juvenile, is arrested or detained or appears or is brought

before a Board, such person shall, notwithstanding anything

contained in the Code of Criminal Procedure, 1973(2 of1974)

or in any other law for the time being in force, be released on

bail with or without surety [for placed under the supervision of

a Probation Officer or under the care of any fit institution or fit

person but he shall 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.

2) A bare reading of the provision reproduced herein would make

it apparent that an exception has been carved out for declining the bail to the

juvenile who is in conflict with law i.e. he or she is likely to come in

association with any known criminal or upon release on bail would expose

such juvenile to moral, physical or psychological danger or that release of

the juvenile would defeat the ends of justice. For invoking such exception,

there has to be some material before the competent authority on the basis of

which it can be held that the release of the juvenile in the present case

would fall within the exception recognized under Section 12 of the Act.

The impugned order dated 13.5.2020 passed by the Appellate Court at

Annexure P-1 is completely bereft of any such reasoning. No such

material/evidence has been adverted to in the order. Seriousness of the offence as mentioned in the FIR would not be a ground to deny to the juvenile the concession of bail in the light of Section 12 of the Act.

IN THE HIGH COURT OF PUNJAB & HARYANA AT

CHANDIGARH

CRR-962-2020(O&M)

Date of Decision: 02.07.2020

Sanjit  Vs  State of Haryana

CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.

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