It is quite noteworthy that the High Court of Jammu and Kashmir and Ladakh at Srinagar in an extremely commendable, cogent, composed and creditworthy judgment titled Zubair Ahmed Teli & Anr. Vs. Union Territory of J&K & Anr. in Crl R No. 15/2021 Crl M No. 1019/2021 that was pronounced finally on April 28, 2022 has held in no uncertain terms that there is no requirement of prior consideration of the social investigation report by Juvenile Justice Board while considering a bail plea under Section 12 of the Juvenile Justice Care and Protection Act, as that was never intended by the Legislature. Very rightly so! The Single Judge Bench comprising of Hon’ble Mr Justice MA Chowdhary was hearing a revision petition that was moved in terms of Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 that seek setting aside the judgment passed by the Principal Sessions Judge, Kulgam whereby the order passed by the Juvenile Justice Board, Kulgam, granting interim bail to the petitioners under Section 12 of the Juvenile Justice Act, 2015 (supra), was set aside.

At the outset, this refreshing, robust, remarkable, recent and rational judgment authored by a Single Judge Bench comprising of Hon’ble Mr Justice MA Chowdhary of the Jammu and Kashmir and Ladakh High Court sets the ball rolling by first and foremost putting forth in para 1 that:
Petitioners, through the medium of this revision petition moved in terms of the Section 102 of The Juvenile Justice (Care and Protection of Children) Act, 2015, seek setting aside the judgment dated 07.09.2021 (for short ‘impugned judgment’) passed by the court of learned Principal Sessions Judge, Kulgam (hereinafter called ‘appellate court’) in case File No. 10/A titled ‘Abdul Khaliq Sheikh vs. Zubair Ahmad Teli & Anr.’, whereby the order dated 01.06.2021 passed by the Juvenile Justice Board, Kulgam, granting interim bail to the petitioners under Section 12 of Juvenile Justice Act, 2015 (supra), was set aside.”

To put things in perspective, the Bench then envisages in para 2 that:
The impugned judgment has been assailed on the following grounds:

I) That, the impugned order has been passed in gross ignorance and misinterpretation of law laid down under the Juvenile Justice (Care and Protection of Children) Act, 2015 read with its rules as the court by passing the impugned order has re-wrote the statute thereby supplying Causus Omissus as the statute governing the said matter laid in its Section 12 is unambiguous and clear, as such, the order impugned has defeated the intention of the legislature and produced a whole unreasonable result thereby violating the rights of the petitioners.

II) That, neither clause (e) of Sub Section 3 of Section 8 nor Section 15 nor Section 18 (3) of The Juvenile Justice (Care and Protection of Children) Act, 2015, provides and indicates that the law laid down in the said provisions is to be followed for consideration of bail application under Section 12 of the Act in a case of juvenile delinquent irrespective of its age as the law laid down under the said provisions clearly indicates that the preliminary assessment required to be made is only a guiding factor for the purposes of passing relevant orders by the Board under Section 18(3), which in terms is only to enable the Board to pass an order that there is need for trial of a child above the age of 16 years as an adult before the Children court.

III) That, the impugned order has been passed without taking into consideration that not only the Juvenile Justice Board has followed the procedure established under law by granting bail in favour of the juvenile delinquents but has handed them in custody of the responsible persons against an undertaking after proper enquiry and application of mind.

IV) That, the order impugned is itself bad in law, as the court below has not taken into consideration that petitioner No.1 on the date of alleged offence was below the age of 16 years, accordingly, has ignored and mis-appreciated the fact that as per the law there is no need to conduct the preliminary assessment for grant of bail in his favour, as such, to this extent the order impugned on this ground is not sustainable.

V) That, the order impugned has been passed without taking into consideration the guiding factor laid under Rules 10(2) and 20(8) of the Juvenile Justice Rules, 2016, which clearly establishes that there is no need of any preliminary assessment or to seek any social investigation report from the Probation Officer or Child Welfare Officer or Social Worker concerned, in case of release of juvenile pending enquiry by the Juvenile Justice Board.

VI) That, Section 12 of the Act, 2015 has to be interpreted independently irrespective of any other provision laid under the Act and the same has been clearly interpreted by the higher courts in their various judgments, as such, on this ground also the order impugned is bad in law.”

While elaborating on the factual background of the case, the Bench then enunciates in para 8 that:
The factual background of the case is that on 09.03.2021 one Abdul Khaliq Sheikh reported at police station, Behibagh that his son Vakil Ahmad Sheikh had gone out from his house on 06.03.2021 to Alamgung and was brought in the injured condition as he was found lying on the road and his motorcycle was also lying aside. a) That, his son was shifted to Yaripora Hospital for treatment wherefrom he was referred to Soura, Hospital, Srinagar. b) That, his son had been attacked on the head with some dangerous thing by some unknown persons. On receipt of this report, case vide FIR No.10/2021 was registered for the commission of offences punishable under Sections 307, 341 IPC. During the investigation the injured succumbed to his injuries at the hospital and the police, during interrogation of the juveniles, claimed that they have disclosed to have hit Vakil Ahmad Sheikh with a bat on his head and the juveniles were arrested in the case and remanded to Juvenile Home. Petitioners-juveniles moved an application for grant of bail before the Juvenile Justice Board, Kulgam vide order dated 01.06.2021, the Board while holding that there being no dispute about juvenility of the petitioners, being below the age of 18 years on the date of alleged offence and having regard to Section 12 of the Act, 2015, granted bail to both the juveniles and their custody was given to their paternal aunt Sarwa Begum and her husband Farooq Ahmad Pandith residents of Harnag, Anantnag, so that the juveniles do not get exposed to physical danger while living with their father who resides in the same village where the complainant resides and were granted interim bail till 05.06.2021.”

As it turned out, the Bench then notes in para 9 that:
Aggrieved of this order, the complainant Abdul Khaliq Sheikh, father of deceased, filed an appeal before the court of learned Principal Sessions Judge, Kulgam, who vide impugned order set aside the order passed by the Juvenile Justice Board and further ordered the juveniles be taken into custody.”

Needless to state, the Bench then observes in para 10 that:
Section 12 of the Juvenile Justice Act, 2015 deals with bail of the juveniles. For facility of convenience the provision of Section 12 of the Act, 2015 is reproduced as under:-

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.
    
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 subsection (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.

Be it noted, the Bench then lays bare in para 11 that:
This Section authorizes the Juvenile Justice Board to consider a bail plea, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, and to release a juvenile on bail with or without surety or to place under the supervision of Probation Officer or under the care of any fit person. This provision of bail seems to be the rule with only exceptions 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 physiological danger or his release would defeat the ends of justice, and in that case the Board has to record the reasons for denying the bail and the circumstances that led to such a decision.”

As we see, the Bench then mentions in para 12 that:
On perusal of the said provision of bail, it is amply reflected that the grant of bail is a rule and its denial is an exception, and the exceptions are categorized on three counts namely:

1. Release is likely to bring that person into association with any known criminal;
2. Expose the said person to moral, physical or psychological danger;
3. His release would defeat the ends of justice.

Quite analytically, the Bench then deems it apposite to state in para 13 that, “It is borne from the pleadings that the offence alleged to have been committed by the petitioners-juveniles is a very heinous offence, who have allegedly committed the murder of the son of respondent No.2. The court below, while discussing Section 8 of the Act, 2015 (supra) with regard to functions and responsibilities of the Board, observed that the legislature intended that the denial or grant of bail to the juveniles should be based on the overall appreciation of conditions of the person who is apparently a child, alleged to have committed a non-bailable offence, and this appreciation has to be based on social investigation done by the Probation Officer or some Child Welfare Officer or a Social Worker. The idea underlying for obtaining social investigation report is meant to ensure the safety, security and reform of the said child, than to punish him, which of-course is the purpose and purport of the Juvenile Justice Act.”

While continuing in same vein, the Bench then notes in para 14 that:
The appellate court has held that this exercise, prescribed under the Act for grant of bail to the child, is mandatory in nature, otherwise the whole objective to be achieved by Section 12 of the Act for grant of bail will lose significance. The court below held that the Juvenile Justice Board, without any such exercise had granted bail, as such, the Board was not having any material before it with regard to the background of the juveniles and the person to be fit for their custody, and that in such situation, release of the petitioners-juveniles resulted in defeating the ends of justice.”

Broadly speaking, the Bench then observes in para 15 that:
The appellate court has concluded that the expression ‘ends of justice’ means justice to all the parties involved in the dispute including the interests of general public as well. While appreciating this expression the court has gone to observe the merits of the case, that is, young age the deceased who was the father of two minor kids including an infant and the extreme form of brutality subjected to him by the petitioners resulting in severe injuries on his body to which he finally succumbed at SKIMS, Srinagar.

The court has further observed that the Juvenile Board was expected to have considered various aspects of the case like, as how and under what circumstances the alleged killing of the deceased happened; what was the modus operandi to commit the alleged offence; what were the circumstances which led to commission of such a heinous offence by the accused. That, then the Juvenile Board should have also considered this paramount aspect as who is the victim, what was his age, what is the situation of victim’s family and how this gruesome murder is being taken in the vicinity of the victim’s family? What will be the effect and impact of grant of bail to the juveniles on the victim’s family and its adjoining society in particular and how all these factors are going to affect the person to be bailed out on the basis of juvenility. The appellate court further observed, after making these comparative analysis of all aspects, the Juvenile Justice Board, based on the detailed report of Probation Officer, should have reached to a conclusion as to how ends of justice can be met viz-a-viz grant or refusal of bail to the juvenile.”

There can be no gainsaying what is then stated in para 16 that:
For proper appreciation of the matter in question, Section 15 of the Act is required to be extracted as under:

“15. Preliminary assessment into heinous offences by Board. (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section 18:

Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.””

It is worth noting that the Bench then explicitly observes in para 19 that:
As noticed earlier, on perusal of the provisions regarding bail contained in Section 12 of the Juvenile Justice Act, 2015, it is amply reflected that grant of bail by the Juvenile Justice Board is a rule and denial thereof is an exception. It is not out of place to mention here that the exceptions based on the grounds of denial of bail are also meant to ensure the safety, security and reform of the said child, than to punish him, which is admittedly the purpose and purport of the Juvenile Justice Act.”

Quite forthrightly, the Bench then mandates in para 20 that:
The appellate court’s observation that the expression ‘ends of justice’ means justice to all the parties involved in the dispute and to serve the interests of general public as well, appears that the court has laboured under a misconception. The Juvenile Justice Act is a special legislation and had been enacted by the Legislature to ensure the rights of the children in conflict with law, as such, the baseline conceived by the appellate court to cancel the bail, on the point of ‘ends of justice’ of the parties, general public and the victim, is wholly misplaced. The provision of bail contained under Section 12 of the J.J. Act, cannot be stretched to deny bail, by borrowing irrelevant principles and construction of statute in such a way that the very aim and object of the Act is defeated.”

Most significantly, the Bench then minces no words to hold in para 21 that:
The appellate court has also exceeded its jurisdiction to hold that enquiry under Section 15 of the J.J.Act should have been conducted by the Juvenile Justice Board, before consideration and grant of bail. It is an admitted case that only one of the petitioners/accused was above 16 years of age, therefore, enquiry, if any, as envisaged under Section 15 of the J.J. Act was required in his case only and not in case of the other petitioner/accused. This enquiry under Section 15 of the Act is to be conducted in context of the matter of the trial by the Juvenile Justice Board or the Children’s Court, in case of heinous and serious offences.”

Quite remarkably, the Bench then stipulates in para 22 that:
Applying the doctrine of “reading down” to gather the intention of legislators from the object of the statute and also to apply legal fiction to Section 15 of the Act viz-a-viz bail in the case involving heinous offence by the appellate court to deny the bail to the juveniles, in the considered opinion of this Court is misinterpretation of a beneficial legislation for securing the safety and welfare of the children in conflict with law.”

Most forthrightly, the Bench then minces no words to state in para 23 that:
It is astonishing to note that even if the compliance of the provisions of Section 15 regarding ‘social investigation report’, as applied by the appellate court, the bail granted by the J.J.Board to petitioner No.1/accused No.1, who was below 16 years of age, is patently wrong as in his case such enquiry was not required at all. Appellate court has thus, patently misdirected itself to cancel the bail to the juvenile, below the age of 16 years.”

Of course, the Bench then mentions in para 25 that:
The appellate court had relied upon the law laid down in a case titled Radhika(juvenile) Vs. State of U.P. D.O.D. 05.08.2019, wherein it has been held that the ‘social investigation report’, as required under Section 15 of the J.J.Act, was imperative before consideration of bail.”

Most commendably, the Bench then notes in para 26 that:
I, respectfully beg to differ with the observations and law laid down in the Radhika’s case by the learned Single Judge of Hon’ble Allahabad High Court, as in my considered opinion and for the afore-stated reasons, there is no requirement of such report while considering the bail, as that was never intended by the legislature. Even another Bench of Single Judge of Allahabad High Court in a case Jiya-uddin(minor) Thru. His… Vs. State of U.P & Anr. (Cr.Rev. No. 1234/2018), while discussing Radhika’s case, held that there was no such requirement to consider social investigation report before consideration of bail. Para 27 of the said judgment is relevant to be quoted here-in-under:

“27. Keeping the aforesaid in mind, however it is made clear that the aforesaid factors that are to be required to be kept in mind would be completely different from the preliminary assessment required to be made under Section 15 of the Act. The factors regarding gravity of charge and circumstances surrounding a heinous offence is only for the purpose of understanding whether release of such a juvenile would defeat the ends of justice. For consideration of a bail application under Section 12 of the Act, a complete preliminary assessment under Section 15 of the Act is neither required to be done nor considered.””

To be sure, the Bench then further adds in para 27 that:
Similar views have been taken by other High Courts. Hon’ble Orissa High Court in case ‘Nari @ Narendra Barik Vs. State of Odisha (CRLA No.60/2021)’ , Hon’ble Patna High Court in case ‘Lalu Kumar @ Lalu Babu @ Lallu Vs. State of Bihar, Criminal Appeal (SJ) No. 2117/2019’; Hon’ble High Court of Madhya Pradesh in case ‘Prahlad Singh Parmar Vs. State of MP & Ors. (MCRC-3085-2021)’; Hon’ble Punjab & Haryana High Court in case titled ‘Harsh Vs. State of Punjab(CRM-M- 47646-2021)’; and Hon’ble Delhi High Court in case ‘Ccl A Vs. State (NCT) of Delhi (Bail Application No. 2510/2020’ , have taken the same view.”

Most remarkably, the Bench then clearly specifies in para 28 that:
The appellate court, insisting on ‘social investigation report’, as envisaged under Section 15 of the J.J.Act has discussed the gravity and seriousness of the offence to cancel the bail. The nature of the offence is not one of the factor on which bail may be granted or refused to a juvenile in conflict with law, therefore, bail cannot be denied to a juvenile in conflict with law on the ground of gravity of offence involved. Section 12 of the J.J. Act requires bail to be mandatorily granted to the juveniles in conflict with law and grant of bail to such a person is a rule and denial is an exception. Bail can only be denied to a juvenile in conflict with law on the ground that it is likely to bring him in association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice.”

Quite naturally, the Bench then holds in para 29 that:
The primary assessment of a child in conflict with law is for further purpose of trial i.e., as to whether he should be tried by the Juvenile Justice Board or by the Children’s Court. It will not curtail the power of the Juvenile Justice Board to consider the application filed under Section 12 of the J.J.Act, 2015. The Board, however, even after deciding the bail application under Section 12 of the J.J.Act, is under obligation to pass necessary orders under Sections 14, 15 and 18 of the J.J.Act, 2015. Therefore, the contention raised by the respondents and accepted by the appellate court that the Juvenile Justice Board should have passed the assessment order prior to passing of order under Section 12 of the J.J.Act, is not sustainable and is liable to be rejected.”

It cannot be glossed over that the Bench then observes in para 30 that:
So far as the principles of ‘reading down’ the construction of statute, to which much stress has been laid by the appellate court is concerned, the same, in my considered opinion, is not tenable in view of the fact that the provisions of the Juvenile Justice Act are clear and unambiguous and require no such construction. Hon’bl e Apex Court in the case titled M/S Hiralal Ratanlal Vs. STO, reported as AIR 1973 SC 1034 observed as under:-

“In construing a statutory provision the first and foremost rule of construction is the literally construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear.””

Furthermore, the Bench then states upfront in para 31 that:
It is a well settled principle of law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. When the language of the statute is plain and unambiguous, then court must give effect to the words used in the statute and it would not be open to the courts to adopt hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act.”

On a note of caution, the Bench then hastens to add in para 32 that:
The courts must avoid the danger of determination of meaning of provision based on their own preconceived notion of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. The courts are not entitled to usurp the legislative functions under the disguise of interpretation.”

Adding more to it, the Bench then stipulates in para 33 that:
On a close scrutiny of the provisions contained in Section 12 of the J.J.Act with regard to bail and Section15 of the J.J.Act with regard to assessment report in the cases of heinous offences having regard to the age of the juveniles more than 16 years, both the provisions seem to be conveying in clear terms the intent of the legislature, where words are clear, there being no obscurity or ambiguity and the intent of the legislature is clearly conveyed. There is no scope for the courts to innovate or take upon themselves the task of amending or altering the statutory provisions. In such a situation, the judges should not proclaim that they are playing the role of law-makers merely for exhibition of judicial valor. The thin-line which separates adjudication from legislation should not be crossed or erased.”

As a corollary, the Bench then holds in para 34 that:
Having regard to the afore-stated reasons, this Court is of considered opinion that the juveniles in conflict with law, are entitled to be released on bail, as a rule, in terms of Section 12 of the J.J.Act, notwithstanding the gravity of the offence, the preliminary assessment as envisaged in terms of Section 15 of the Act and the difference of age below or above 16 years. The bail can be denied only for the exceptions provided under Section 12 only that too having regard to the interest of child in conflict with law.”

As anticipated, the Bench then holds in para 35 that:
For the foregoing reasons and observations made hereinabove, the impugned order, whereby the order granting bail in favour of the petitioners/juveniles by the Juvenile Justice Board has been cancelled by the appellate court, is not sustainable. The impugned order, is, thus, struck down, as a result whereof the order passed by the Juvenile Justice Board Kulgam, granting bail to the petitioners/juveniles, is ordered to be restored.”

Finally, the Bench concludes by holding in para 36 that:
Criminal Revision Petition along-with pending interim application(s), if any, is disposed of accordingly.”

In essence, the Jammu and Kashmir and Ladakh High Court has made it indubitably clear that enquiry under Section 15 by Juvenile Justice Board is not mandatory before consideration and grant of bail under Section 12. We have already discussed the relevant case laws that were cited by the Court as noted hereinabove. So it merits no reiteration that all the courts must unflinchingly, unquestionably and unfailingly abide by what the Court has laid down so very elegantly, eloquently and effectively in this leading case! There can be just no denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.