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Yogesh v. State of U.P.

Juvenile Justice (Care and Protection of Children) Act, 2015 – Whether in a revision under Section 102 of the JJ Act, 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 ? Held, Complainant / Victim to be afforded opportunity of hearing before passing any order in a matter relating to bail of juvenile.


ICL 2021 (9) All. 69
HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon’ble Dr. Yogendra Kumar Srivastava, J.
CRIMINAL REVISION No. – 1407 of 2021; 24.9.2021
Yogesh v. State of U.P. and Another

Counsel for Revisionist :- Suresh Chandra Pandey Counsel for Opposite Party :- G.A.

O R D E R

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, 2015 (JJ Act), 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 Code (Penal Code) at Police Station -Vrindavan, District-Mathura.

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 Station- Vrindavan, 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 antemortem 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 3 the Board 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 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, 1889 (SC/ST Act)  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 Another, S.B. Criminal Revision Petition No.494/2021; order dt. 01.07.2021, (Raj. HC; S.B.).

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 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,— ……

(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 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 non-governmental organisation, and is registered as such, for the purposes specified in subsection (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 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-in-charge 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 illtreatment by the police or by any other person, including a lawyer or probation officer and take corrective steps in case of such illtreatment;

(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 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 non-governmental 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 subsection (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 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 well-being 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— (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 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 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 sub-section (1) whereunder bail can be denied.

21. The 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, 6 the Code 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. Section 16 provides for a periodic review of pendency of cases relating to inquiry before the Board.

26. Section 17 empowers the Board to pass orders regarding a child not found to be in conflict with law and in terms of Section 18, the Board is empowered to pass orders regarding child found to be in conflict with law. Amongst the various orders which may be passed by the Board under Section 18, it is provided, as per terms of clause (g) of sub-section (1), that the Board may direct the child to be sent to a special home, for such period, not exceeding three years, for providing reformative services. As per sub-section (3) where the Board after preliminary assessment under Section 15 passes an order that there is a need for trial of the child as an adult, then the Board may transfer the trial of the child to the Children’s Court having jurisdiction to try such offences.

27. Section 19 relates to powers of Children’s Court and in terms of sub-section (1) thereof upon receipt of preliminary assessment from the Board under Section 15, the Children’s Court may decide that—

(i) there is a need for trial of the child as an adult as per the provisions of the Code;

(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. Sub-section (2) of Section 19 provides that the Children’s Court shall ensure that final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of the child. As per sub-section (3) the Children’s Court is to ensure that the child 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. It is further provided that the reformative services including educational services, skill development, alternative therapy such as counseling, behaviour modification therapy and psychiatric support shall be provided during the period of stay of the child in the place of safety.

28. Section 21 mandates that 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 the JJ Act or under the Penal Code or any other law for the time being in force.

29. The aforementioned discussion delineates the scheme of the JJ Act and the measures provided thereunder for furtherance of the objective of the Act, which is in the nature of a beneficent legislation, and also a remedial one with detailed provisions for providing avenues for reforms and rehabilitation of a juvenile/child in conflict with law.

30. The orders made by the Child Welfare Committee or the Board, under the JJ Act, have been made subject to appeal.

31. Section 101 provides for a statutory appeal to any person aggrieved by an order made by the Committee or the Board. As per Section 102 the High Court may, at any time, either on its motion or an application received on 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. In terms of the proviso to Section 102, the High Court shall not pass an order under the section prejudicial to any person without giving him a reasonable opportunity of being heard. The procedure to be followed in inquiries, appeals and revision proceedings is provided under Section 103 and in terms of subsection (2) thereof, the procedure to be followed in revision proceedings under the Act shall be, as far as practicable, in accordance with the provisions of the Code.

32. The term “prejudice” occurring in the proviso to Section 102 would be significant for understanding its true scope, ambit and width:

(i) Black’s Law Dictionary (Black’s Law Dictionary (Eighth Edition) explains “prejudice” to mean damage or detriment to one’s legal rights or claims.

(ii) Concise Oxford English Dictionary (Conscise Oxford English Dictionary (Tenth Edition, Revised) defines “prejudice” as under : “Prejudice.—n (1). Preconceived opinion that is not based on reason or actual experience. » unjust behaviour formed on such a basis. chiefly Law (2). harm or injury that results or may result from some action or judgment. » v.(1) give rise to prejudice in (someone); make biased. (2). cause harm to (a state of affairs)”.

(ii) Webster Comprehensive Dictionary (Webster Comprehensive Dictionary (International Edition) explains “prejudice” to mean (i) a judgment or opinion, favourable or unfavourable, formed beforehand or without due examination … detriment arising from a hasty and unfair judgment; injury; harm.

(iii) P. Ramanatha Aiyar; the Law Lexicon (P.Ramanatha Aiyar; the Law Lexicon (The Encyclopaedic Law Dictionary) explains “prejudice” to mean injurious effect, injury to or impairment of a right, claim, statement etc. The term “Prejudice” is, therefore, generally defined as meaning “to the harm, to the injury, to the disadvantage of someone”. It also means injury or loss.

33. The question as to whether the complainant/informant or aggrieved party can claim any vested right of being heard at the stage of an application for grant of bail was considered in Sandeep Kumar Bafna vs. State of Maharastra and Others, (2014) 16 SCC 623 and it was observed that though no such vested right can be claimed to conduct a prosecution, however the complainant or informant or aggrieved party may be heard at a crucial and critical juncture of the trial, so that his interests in the prosecution are not prejudiced or jeopardized.

34. It may be relevant to take note of the fact that sub-section (2) of Section 103 mandates that the procedure to be followed in hearing appeals or revision proceedings under the Act shall be, as far as practicable, in accordance with the provisions of the Code.

35. Under the Code, Section 401 contains the High Court’s powers of revision and in terms of sub-section (2) thereof, no order under the section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

36. The right to be heard provided under sub-section (2) of Section 401 of the Code, which is somewhat analogous to the right of hearing as per the proviso to Section 102 of the JJ Act, was subject matter of consideration in Manharibhai Muljibhai Kakadia and Another vs. Shaileshbhai Mohanbhai Patel and Others, (2012) 10 SCC 517. A similar ground, as has been raised in the present case, was taken to contend that since the “accused” or “other person” had no role to play in the earlier stage of the proceedings and as the revision had been filed against the dismissal of a complaint at the pre-cognizance stage, the “accused” or “other person” would not have any right of hearing at the stage of revision under Section 401(2) of the Code. Repelling the aforesaid contention and holding that opportunity of hearing to accused/other person is necessary in a revision filed by the complainant against dismissal of the complaint under Section 203, the following observations were made:-

“46. The legal position is fairly well-settled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence.

xxx

48. In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate under Section 202 or on receipt of the report from the police or from any person to whom the direction was issued by the Magistrate to investigate into the allegations in the complaint, the effect of such dismissal is termination of complaint proceedings. On a plain reading of sub-section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed the offence have been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203 – although it is at preliminary stage – nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed the crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get right of hearing before revisional court although such order was passed without their participation. The right given to “accused” or “the other person” under Section 401(2) of being heard before the revisional court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204.

In the revision petition before the High Court or the Sessions Judge at the instance of complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of express provision contained in Section 401(2) of the Code.

The stage is not important whether it is pre-process stage or post process stage.”

37. The aforementioned decision in the case of Manharibhai Muljibhai Kakadia (supra) lays down the proposition that where a complaint is dismissed under Section 203 of the Code, the accused/suspect is entitled to a hearing before the revisional court as per the requirement under Section 401(2), and that no order under sub-section (1) shall be made to the prejudice of the accused or other person unless he as had an opportunity of being heard in his own defence. It was held that once a challenge is made to an order of dismissal of a complaint under Section 203, at the instance of the complainant, the accused/suspect gets a right of hearing before the revisional court, although such order was passed without their participation- the right to be heard emanating from Section 401(2). It was made clear that the right given to the “accused” or other person under Section 401(2) of being heard before the revisional court ought not to be confused with the proceedings before the Magistrate under Sections 200, 202, 203 and 204 of the Code. It was also observed that in a revision petition at the instance of the complainant challenging the order of dismissal of the complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint and in that situation, the persons who were alleged in the complaint to have committed the crime would have no right to participate in the proceedings before the Magistrate. The fact that the accused/suspect were not heard when the original order of dismissal has been passed under Section 203 and would not be heard upon restoration of the proceedings upon the revision being allowed, was held not to affect their right to be heard in the revision proceedings.

38. The requirement of an opportunity of hearing under Section 401(2) of the Code and its extension to cases under Section 482 of the Code in the context of a challenge to an order refusing to issue summons under Section 319 was reiterated in the decision in Mohit alias Sonu and another vs. State of Uttar Pradesh and another, (2013) 7 SCC 789 and it was held that it was required to give notice and opportunity of hearing to a person in whose favour some right had accrued by virtue of an order refusing to issue summons.

39. The complainant’s right to be heard in the revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000, i.e. the old Act was subject matter of consideration in Babloo Pasi vs. State of Jharkhand and Another14 and in the context of Section 53 and its proviso, which are pari materia, the provisions contained under Section 102 and its proviso under the JJ Act, 2015, it was held that the High Court while exercising its revisional jurisdiction could not pass an order prejudicial to any person without affording him an opportunity of hearing; hence complainant is to be accorded an opportunity of hearing. Referring to the principle of audi alteram partem, it was observed as follows:-

“12. Section 52 of the Act provides that any person aggrieved by an order made by a competent authority under the Act may prefer an appeal to the Court of Sessions. Section 53 of the Act confers on the High Court the revisional jurisdiction to satisfy itself as to the legality or propriety of any order passed by the competent authority or Court of Sessions. The Section reads as under:

“53.Revision.- The High Court may, at any time, either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any competent authority or Court of Session 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.”

From a bare reading of proviso to the Section, it is plain that in exercise of its revisional jurisdiction the High Court cannot pass an order, prejudicial to any person without affording him a reasonable opportunity of being heard.

13. At this juncture, it would be profitable to note that Section 54 of the Act also prescribes the procedure to be followed while dealing with inquiries, appeals and revisions under the Act. Sub-section (2) thereof stipulates that save as otherwise expressly provided under the Act, the procedure to be followed in hearing revisions under the Act, shall be as far as practicable in accordance with the provisions of the Code of Criminal Procedure, 1973 (for short `the Code’). Sub- section (2) of Section 401 of the Code contemplates that no order under the said Section shall be made to the prejudice of the accused or other person 14 (2008) 13 SCC 133 unless he has had an opportunity of being heard either personally or by pleader in his own defence.

14. Furthermore, by now it is well settled that save in certain exceptional situations, the principle of audi alteram partem mandates that no one shall be condemned unheard. It is a part of rules of natural justice and the soul of natural justice is `fair play in action’, which demands that before any prejudicial or adverse order is passed or action is taken against a person, he must be given an opportunity to be heard.

15. The question for consideration is that when the statutory provisions mandate and principles of natural justice demand a predecisional hearing, whether or not the High Court was justified in not granting an opportunity of hearing to the appellant/complainant? In our opinion, having regard to the nature of controversy before the High Court and the scheme of the relevant statutory provisions whereunder the High Court was exercising its jurisdiction, the “fairness in action” did demand that the complainant was given an opportunity of hearing in the revision petition preferred by the accused. Moreover, he was impleaded as a party-respondent and was obviously prejudiced by the order passed by the High Court when the accused was declared to be a juvenile. We have, therefore, no hesitation in holding that the High Court was clearly in error in reversing the order passed by the Board without giving an opportunity of hearing to the appellant. Accordingly, we uphold the contention of learned counsel for the appellant that the order of the High Court deserves to be set aside on this short question alone.”

40. It would be seen that the order in the case of X S/o Laxman (supra), sought to be relied upon by revisionist, has been passed without considering the binding precedent— the decision in the case Babloo Pasi (supra). It may also be noticed that the questions which have been raised in the present case were neither argued nor considered in the aforesaid order made in the case of X S/o Laxman, and accordingly, the same cannot be held to be a conclusive authority on the point.

41. The issue as to whether a prospective accused is also a necessary party and is required to be heard in a revision filed against an order rejecting an application under Section 156 (3) of the Code, before a final order is passed, was one of the questions which were taken up upon a reference by a Full Bench of this Court in Jagannath Verma Vs. State of U.P., (2014) 8 ADJ 439 and the same was answered by holding that the prospective accused or, as the case may be, the person who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in a criminal revision.

42. The right of “victim” as defined under Section 2 (wa) under the proviso to Section 372 of the Code came up for consideration in Mallikarjun Kodagali (dead) represented through legal representatives vs. State of Karnataka and Others, (2019) 2 SCC 752 and it was held that the said right available to the “victim” is not a mere matter of procedure but a substantive right. The travails and tribulations of victims of crime and the continuing ordeal faced by them prior to trial and during the trial were taken note of and it was observed as follows:-

“2. The travails and tribulations of victims of crime begin with the trauma of the crime itself and, unfortunately, continue with the difficulties they face in something as simple as the registration of a First Information Report (FIR). The difficulties in registering an FIR have been noticed by a Constitution Bench of this Court in Lalita Kumari v. State of U.P., (2014) 2 SCC 1: 2014 1 SCC (Cri) 524. The ordeal continues, quite frequently, in the investigation that may not necessarily be unbiased, particularly in respect of crimes against women and children. Access to justice in terms of affordability, effective legal aid and advice as well as adequate and equal representation are also problems that the victim has to contend with and which impact on society, the rule of law and justice delivery.

3. What follows in a trial is often secondary victimisation through repeated appearances in Court in a hostile or a semi-hostile environment in the courtroom. Till sometime back, secondary victimisation was in the form of aggressive and intimidating cross-examination, but a more humane interpretation of the provisions of the Indian Evidence Act, 1872 has made the trial a little less uncomfortable for the victim of an offence, particularly the victim of a sexual crime. In this regard, the judiciary has been proactive in ensuring that the rights of victims are addressed, but a lot more needs to be done. Today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both. ……..

4. In Sakshi v. Union of India, (2004) 5 SCC 518: 2004 SCC (Cri) 1645 this Court passed significant directions for holding in camera proceedings, providing for a screen between the accused and the victim and placed restrictions, in a sense, on the cross examination of witnesses. It is true that these directions have been passed in a case relating to sexual offences but the trend of this Court has been to show concern for the rights of victims of an offence and to address them.

5. Parliament also has been proactive in recognising the rights of victims of an offence. One such recognition is through the provisions of Chapter XXI-A of the Cr.P.C. which deals with plea bargaining. Parliament has recognised the rights of a victim to participate in a mutually satisfactory disposition of the case. This is a great leap forward in the recognition of the right of a victim to participate in the proceedings of a noncompoundable case. Similarly, Parliament has amended Cr.P.C. introducing the right of appeal to the victim of an offence, in certain circumstances. The present appeals deal with this right incorporated in the proviso to Section 372 Cr.P.C.

6. In other words, a considerable amount has been achieved in giving life to the rights of victims of crime, despite the absence of a cohesive policy. But, as mentioned above, a lot more still needs to be done.

7. Among the steps that need to be taken to provide meaningful rights to the victims of an offence, it is necessary to seriously consider giving a hearing to the victim while awarding the sentence to a convict. …..

8. The rights of victims, and indeed victimology, is an evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than stand still or worse, take a step backward.

A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard.

9. With this background, we need to consider the questions that arise before us consequent to the introduction of the proviso to Section 372 of the Cr.P.C. with effect from 31st December, 2009. The questions are somewhat limited: Whether a ‘victim’ as defined in Cr.P.C. has a right of appeal in view of the proviso to Section 372 Cr.P.C. against an order of acquittal in a case where the alleged offence took place prior to 31st December, 2009 but the order of acquittal was passed by the Trial Court after 31st December, 2009? Our answer to this question is in the affirmative. The next question is: Whether the “victim” must apply for leave to appeal against the order of acquittal? Our answer to this question is in the negative.”

43. The rights of the victims of crime in the context of remedies available to them were considered in the light of certain recent reports of the Law Commission and it was observed as follows:-

“14. In recent times, four Reports have dealt with the rights of victims of crime and the remedies available to them. The first Report in this sequence is the 154th Report of the Law Commission of India of August 1996. While this Report did not specifically deal with the right of a victim of crime to file an appeal, it did discuss issues of victims of crime, compensation to be paid to the victim and rehabilitation of the victim including the establishment of a Victim Assistance Fund.

15. The second important Report is the March 2003 Report of the Committee on Reforms of Criminal Justice System, commonly known as the Report of the Justice Malimath Committee. In the Chapter on Adversarial Rights, it is recommended under the sub-heading of Victims Right to Appeal as follows:

“2.21. The victim or his representative who is a party to the trial should have a right to prefer an appeal against any adverse order passed by the trial court. In such an appeal he could challenge the acquittal, or conviction for a lesser offence or inadequacy of sentence, or in regard to compensation payable to the victim. The appellate court should have the same powers as the trial court in regard to assessment of evidence and awarding of sentence.”

16. Thereafter, in the substantive Chapter on Justice to Victims, it is noted that victims of crime, in many jurisdictions, have the right to participate in the proceedings and to receive compensation for injury suffered. It was noted as follows:

“6.3. Basically two types of rights are recognized in many jurisdictions particularly in continental countries in respect of victims of crime. They are, firstly, the victim’s right to participate in criminal proceedings (right to be impleaded, right to know, right to be heard and right to assist the court in the pursuit of truth) and secondly, the right to seek and receive compensation from the criminal court itself for injuries suffered as well as appropriate interim reliefs in the course of proceedings.”

17. Following up on this, and extending the rights of victims of crime, it was observed in paragraph 6.5 that:

“6.5. The right of the victim should extend to prefer an appeal against any adverse order passed by the trial court. The appellate court should have the same powers to hear appeals against acquittal as it now has to entertain appeal against conviction. There is no credible and fair reason why appeals against acquittals should lie only to the High Court.”

18. On this basis, the Justice Malimath Committee made the following recommendation enabling the victim of a crime to prefer an appeal. The recommendation (made in the Chapter having the same heading) reads as follows:

“6. (14) (v) The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court.”

19. The third Report worth considering is the July 2007 Report of the Committee on the Draft National Policy on Criminal Justice also known as the Professor Madhava Menon Committee. While this Committee does not specifically deal with providing a right of appeal to the victim of a crime, it does refer to victim orientation to criminal justice and providing for a balance between the constitutional rights of an accused person and a victim of crime. One of the suggestions given by the Committee is to permit the impleadment of a victim in the trial proceedings. Obliquely, therefore, it follows that if a victim is impleaded as a party to the trial proceedings, the victim would certainly have a right to file an appeal against an adverse order, particularly an order of acquittal.

20. The fourth Report that deserves a mention is the 221 st Report of the Law Commission of India, April 2009. In this Report, the recommendation of the Law Commission of India was to the effect that as the law stands, an aggrieved person cannot file an appeal against an order of acquittal. However, a revision petition can be filed. The powers of a revisional court are limited and the process involved is cumbersome and it also involves a wastage of money and time. It was, therefore, recommended by the Law Commission that against an order of acquittal passed by a Magistrate, a victim should be entitled to file an appeal before the revisional court. It was also recommended that in complaint cases also an appeal should be provided in the Sessions Court instead of the High Court. In all such cases, the aggrieved person or complainant should have the right to prefer an appeal, though with the leave of the Appellate Court. The view of the Law Commission was expressed in the following words:

“2.9 All appeals against orders of acquittal passed by Magistrates were being filed in High Court prior to amendment of section 378 by Act 25 of 2005. Now, with effect from 23.06.2006, appeals against orders of acquittal passed by Magistrates in respect of cognizable and non-bailable offences in cases filed on police report are being filed in the Sessions Court, vide clause (a) of sub-section (1) of the said section. But, appeal against order of acquittal passed in any case instituted upon complaint continues to be filed in the High Court, if special leave is granted by it on an application made to it by the complainant, vide sub-section (4) of the said section.

2.10. Section 378 needs change with a view to enable filing of appeals in complaint cases also in the Sessions Court, of course, subject to the grant of special leave by it.

2.11 Further, at present, against orders of acquittal passed by Magistrates (where the offence is cognizable and non-bailable) or by Sessions Courts, appeal in cases filed on police reports can be filed only at the instance of the District Magistrate or the State Government, as the case may be, vide sub-section (1) of section 378.

In such matters, the aggrieved person or the informant cannot himself file an appeal. However, he can prefer a revision. If the revisional Court finds that the accused has been wrongly acquitted, it cannot convict him in view of sub-section (3) of section 401, but it has to remand the case. It is a cumbersome process and involves wastage of money and time. This provision also needs a change and in such matters also, where the District Magistrate or the State does not direct the Public Prosecutor to prefer appeal against an order of acquittal, the aggrieved person or the informant should have the right to prefer appeal, though with the leave of the Appellate Court. This will also give an opportunity to the aggrieved person to challenge the findings of fact recorded by lower court. Also, this will introduce more transparency and accountability in the lower judiciary, as at present, the percentage of acquittal is quite high.” 21. It is, apparently, on the basis of all these Reports and other material that Section 372 Cr.P.C. was amended on 30th December, 2009 with effect from 31st December, 2009. Section 372 Cr.P.C., as it stands today, reads as follows: “372. No appeal to lie unless otherwise provided. – No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

44. The ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power17‘, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29.11.1985, referred to as the Magna Carta of the rights of victims, was also considered and one of the declarations made thereunder in relation to access to justice for the victim of an offence through justice delivery mechanisms, both formal and informal, was extracted. It was stated thus:-

“73. In our opinion, the proviso to Section 372 of the Cr.P.C. must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29.11.1985. The Declaration is sometimes referred to as the Magna Carta of the rights of victims. One of the significant declarations made was in relation to access to justice for the victim of an offence through the justice delivery mechanisms, both formal and informal. In the Declaration it was stated as follows:

“4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.

5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: 17 The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; UN General Assembly; 96th Plenary Session; dt. 29.11.1985

(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

(c) Providing proper assistance to victims throughout the legal process;

(d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.”

74. Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. Access to mechanisms of justice and redress through formal procedures as provided for in national legislation, must include the right to file an appeal against an order of acquittal in a case such as the one that we are presently concerned with.

Considered in this light, there is no doubt that the proviso to Section 372 of the Cr.P.C. must be given life, to benefit the victim of an offence.

75. Under the circumstances, on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2(wa) of the Cr.P.C. would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It must follow from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits.

76. As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) Cr.P.C. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word “complaint” has been defined in Section 2(d) of the Cr.P.C. and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 of the Cr.P.C. is concerned.”

45. It would be apposite to refer to The Crime Victims’ Rights Act (CVRA), The Crime Victims’ Rights Act, (CVRA) 18 U.S.C. § 3771; U.S. Justice for All Act which is a part of the United States Justice for All Act. The CVRA enumerates the rights afforded to victims in the following manner:-

“The Crime Victims’ have following rights:- (a) The right to be reasonably protected from the accused.

The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.

(b) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

(c) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.

(d) The reasonable right to confer with the attorney for the Government in the case.

(e)The right to full and timely restitution as provided in law.

(f) The right to proceedings free from unreasonable delay.

(g) The right to be treated with fairness and with respect for the victim’s dignity and privacy.”

46. The question with regard to consideration of grant of permission under Section 302 of the Code to a complainant or victim to conduct prosecution fell for consideration in Amir Hamza Shaikh and Others vs. State of Maharashtra and Another, (2019) 8 SCC 387 and it was held that though the Magistrate is not bound to grant permission at the mere asking but the victim has a right to assist the court in a trial before Magistrate. The observation made in the earlier judgment in J.K. International v. State (Government of NCT of Delhi) and Others, (2001) 3 SCC 462 with regard to the complainant’s continued participation in criminal proceedings initiated by him were referred to and it was stated as follows:-

“8. In a three Judge Bench of this Court in J.K. International v. State (Govt. of NCT of Delhi) (2001) 3 SCC 462: 2001 SCC (Cri) 547, where offences under Sections 420, 406 and 120-B IPC were investigated and charge-sheet filed on the basis of complaint of the appellant, the accused filed a petition for quashing of the charges in which the complainant wanted to be heard. The Public Prosecutor filed an application before the Magistrate for amending the charge for incorporating two more offences which were exclusively triable by the Court of Sessions. The Magistrate dismissed the application but the said order was not challenged by the prosecution. It was held that the scheme in the Code indicates that the person who is aggrieved by the offence committed is not altogether wiped out from the scene of the trial merely because the investigation was taken over by the police.

9. This Court while considering the provisions of sub-section (2) of Section 301 and Section 302 CrPC, held as under:

“9. The scheme envisaged in the Code of Criminal Procedure indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge-sheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance. Even in the Sessions Court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial.

This can be discerned from Section 301(2) of the Code which reads thus:

“301. (2) If in any such case any private person instructs a pleader to prosecute any person in any court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the court, submit written arguments after the evidence is closed in the case.”

47. The settled principles governing the grant of bail and the relevant considerations while considering an application for bail may be enumerated as follows:-

(i) whether there is any prima facie or reasonable ground to believe that accused had committed the offence;

(ii) nature and gravity of charge;

(iii) severity of punishment in the event of conviction;

(iv) danger of accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of accused;

(vi) likelihood of offence being repeated;

(vii) reasonable apprehension of witnesses being tampered with; and

(viii) danger of justice being thwarted by grant of bail.

Vague allegation that the accused may tamper with evidence or witnesses may not be a ground to refuse bail; however, if the accused is of such character that his mere presence at large would intimidate witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with evidence, then bail would be refused.

48. The plea of bail of an adult in a non-bailable offence, would substantially be governed by the provisions of Section 439 of the Code, wherein a wide discretion is conferred on the High Court or the Court of Sessions, and in terms thereof for an adult offender, bail in a non-bailable offence is not a matter of right. The right to bail in such cases is dependent upon the discretion of the High Court or the Court of Sessions, and which is to be exercised along settled lines in relation to different offences. In case of a juvenile offender, sub-section (1) of Section 12 of the JJ Act provides for bail as a matter of right, notwithstanding anything contained in the Code or in any other law for the time being in force. This is however, subject to the three distinct exceptions carved out in terms of the proviso to the sub-section.

49. The right to be granted bail in case of a juvenile, therefore cannot be held to be indefeasible or unqualified, and the same is to be considered as per terms of the settled principles and in context of sub-section (1) of Section 12 of the JJ Act and the proviso to the said sub-section.

50. In order to examine the question with regard to the right of the complainant/victim to be granted a reasonable opportunity of being heard at the stage of a revision under Section 102, which seeks to assail an order refusing bail under the provisions of the Act, the proviso to Section 102 would be required to be considered in the light of the statutory scheme of the Act.

51. The normal function of a proviso as has been consistently held, is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment.

52. The law relating to the statutory construction of a proviso was considered in Ali M.K. And Others v. State of Kerala and Others, (2003) 11 SCC 632 and it was reiterated that the proviso qualifies or carves out an exception to the main provision, and referring to earlier judgments in Mullins v. Treasurer of Surrey, (1880) 5 QBD 170; Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596; Calcutta Tramways Co. Ltd. v. Corporation of Calcutta, AIR 1965 SC 1728; West Derby Union v. Metropolitan Life Assurance Co., 1897 AC 647; A.N. Sehgal v. Raje Ram Sheoran, AIR 1991 SC 1406; Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal, AIR 1991 SC 1538; Kerala State Housing Board v. Ramapriya Hotels (P) Ltd., (1994) 5 SCC 672; R. v. Taunton, St James, (1829) 9 B&C 831 and Lord Esher in Barker, Re, 30 (1890) 25 QBD 285 the law on the point was summarized as follows:-

10. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Surrey16, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha17 and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta18, when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. “If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso. …” said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co.19 . Normally, a proviso does not travel beyond the provision to which it is a proviso.

It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoran20, Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal21 and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P)Ltd.22).

“This word (proviso) hath divers operations. Sometime it worketh a qualification or limitation; sometime a condition; and sometime a covenant.” (Coke upon Littleton 18th Edn., p. 146.) “If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails….But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole” [Per Lord Wrenbury in Forbes v. Git (1922) 1 AC 256].

11. A statutory proviso “is something engrafted on a preceding enactment” (R. v. Taunton, St James23).

“The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances.” [Per Lord Esher in Barker, Re24].

12. A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso [See Jennings v. Kelly, (1940) AC 206].

53. In “Construction and Interpretation of the Laws” by Henry Campbell Black, The Construction and Interpretation of the Laws; Henry Campbell Black; p. 273 (West Publishing Co.) it has been stated as a rule of construction that a proviso when added to a section thereof introduces a condition or limitation upon the operation of the enactment, or makes special provision for cases excepted from the general provisions of the law, or qualifies or restrains its generality, or excludes some possible ground of misinterpretation of its extent. The legal proposition has been stated as follows:-

“107. A proviso is a clause added to a statute, or to a section or part thereof, which introduces a condition or limitation upon the operation of the enactment, or makes special provision for cases excepted from the general provisions of the law, or qualifies or restrains its generality, or excludes some possible ground of misinterpretation of its extent.”

54. A proviso, added to a section or a part thereof, has therefore been held to qualify the enactment by introducing a condition or limitation upon its operation. A statutory proviso coming after the general enactment is something engrafted on a preceding enactment and is to be construed in a manner, so as to limit the operation of the enactment in certain instances.

55. The revisional powers under Section 102 of the JJ Act is subject to the proviso engrafted in the section which mandates that the High Court shall not pass an order under the section prejudicial to any person without giving a reasonable opportunity of being heard. The word “shall” is usually used to indicate the mandatory nature of the provision and the word “not” is used in a sense of creating a prohibition. The proviso to Section 102 uses the words “shall” and “not” in conjunction which is a clear indication of the intent of the Parliament to convey the mandatory nature of the proviso containing a condition providing in absolute terms that the High Court shall not pass an order exercising powers of revision under the section prejudicial to any person without giving him a reasonable opportunity of being heard.

56. In statutory construction the intention of legislature is primarily gathered from the language used which means that attention has to be given to what has been stated. A construction, which would render a part of the statute as being devoid of any meaning or application has to be avoided.

57. The basic rules of interpretation of statutes came up for consideration in Constitution Bench decision, Hardeep Singh and Others vs. State of Punjab and Others, (2014) 3 SCC 92 in the context of examining the scope of exercise of powers under Section 319 Cr.P.C., and it was stated that when language of the statute is plain and unambiguous, the court should give effect to the same and should not go behind the express language so as to add or subtract any word. Referring to the doctrine A Verbis Legis Non Est Recedendum it was stated that legislature is presumed to have used words deliberately and consciously for carrying out the purpose of the statute. The observations made in this judgment in this regard are as follows:-

“42. To say that powers under Section 319 Cr.P.C. can be exercised only during trial would be reducing the impact of the word “inquiry” by the court. It is a settled principle of law that an interpretation which leads to the conclusion that a word used by the legislature is redundant, should be avoided as the presumption is that the legislature has deliberately and consciously used the words for carrying out the purpose of the Act. The legal maxim A Verbis Legis Non Est Recedendum which means, “from the words of law, there must be no departure” has to be kept in mind.

43. The court cannot proceed with an assumption that the legislature enacting the statute has committed a mistake and where the language of the statute is plain and unambiguous, the court cannot go behind the language of the statute so as to add or subtract a word playing the role of a political reformer or of a wise counsel to the legislature. The court has to proceed on the footing that the legislature intended what it has said and even if there is some defect in the phraseology, etc., it is for others than the court to remedy that defect. The statute requires to be interpreted without doing any violence to the language used therein. The court cannot rewrite, recast or reframe the legislation for the reason that it has no power to legislate.”

58. The earlier decisions in Patel Chunibhai Dajibha etc. v. Narayanrao Khanderao Jambekar, AIR 1965 SC 1457; The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529; M.V. Elisabeth v. Harwan Investment & Trading Pvt. Ltd., AIR 1993 SC 1014; Sultana Begum v. Prem Chand Jain, (1997) 6 SCC 373; State of Bihar v. Bihar Distillery Ltd., AIR 1997 SC 1511; Institute of Chartered Accountants of India v. M/s. Price Waterhouse, (1997) 6 SCC 312; South Central Railway Employees Co-operative Credit Society Employees Union v. Registrar of Co-operative Societies, (1998) 2 SCC 580 were referred to emphasize the presumption against redundancy or surplusage by observing that no word in a statute should be treated as redundant or surplusage.

“44. No word in a statute has to be construed as surplusage. No word can be rendered ineffective or purposeless. Courts are required to carry out the legislative intent fully and completely. While construing a provision, full effect is to be given to the language used therein, giving reference to the context and other provisions of the Statute. By construction, a provision should not be reduced to a “dead letter” or “useless lumber”. An interpretation which renders a provision an otiose should be avoided otherwise it would mean that in enacting such a provision, the legislature was involved in “an exercise in futility” and the product came as a “purposeless piece” of legislation and that the provision had been enacted without any purpose and the entire exercise to enact such a provision was “most unwarranted besides being uncharitable.” (Vide Patel Chunibhai Dajibha etc. v. Narayanrao Khanderao Jambekar27, The Martin Burn Ltd. v. The Corporation of Calcutta28, M.V. Elisabeth v. Harwan Investment & Trading Pvt. Ltd.29, Sultana Begum v. Prem Chand Jain30, State of Bihar v. Bihar Distillery Ltd.31, Institute of Chartered Accountants of India v. M/s. Price Waterhouse32, South Central Railway Employees Co-operative Credit Society Employees Union v. Registrar of Co-operative Societies33.

45. This Court in Rohitash Kumar v. Om Prakash Sharma, (2013) 11 SCC 451, after placing reliance on various earlier judgments of this Court held: (SCC pp. 460-61, paras 27-29)

“27.The Court has to keep in mind the fact that, while interpreting the provisions of a Statute, it can neither add, nor subtract even a single word… A section is to be interpreted by reading all of its parts together, and it is not permissible, to omit any part thereof. The Court cannot proceed with the assumption that the legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the court to add and amend, or by construction, make up for the deficiencies, which have been left in the Act. … 28. The Statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. The Courts have to administer the law as they find it, and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause. … 29… under the garb of interpreting the provision, the Court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation.” (emphasis in original) 46. Thus, by no means can it be said that provisions of Section 319 Cr.P.C. cannot be pressed into service during the course of “inquiry”.

The word “inquiry” is not surplusage in the said provision.”

59. The presumption against redundancy or surplusage was reiterated in a subsequent judgment in the context of the provisions of the JJ Act in Shilpa Mittal vs. State (NCT of Delhi) and Another, (2020) 2 SCC 787 and it was held that where language of the provision is explicit and clear the court cannot remove any word treating it as surplusage.

60. It is a cardinal principal of construction that the language of a statute should be read as it is and any construction which results in rejection of words as meaningless or treating them as surplusage has to be avoided.

61. In the Constitution Bench decision Union Of India vs Hansoli Devi & Ors; (2002) 7 SCC 273, after referring to the observations made by Tindal CJ in the Sussex Peerage Case, (1844) 11 CI & Fin85: 8 ER 1034 and also the observations made in the decisions in Aswini Kumar Ghose v. Arabinda Bose, (1953) SCR 1; Quebec Railway, Light Heat and Power Co. v. Vandray, AIR (1920) PC 181 it was held that where the language of the statute is plain and unambiguous, the court must give effect to the words used in the statute and it would not be a sound principle of construction to brush aside words in a statute as being inapposite surplusage. It was stated thus:-

“9. Before we embark upon an inquiry as to what would be the correct interpretation of Section 28-A, we think it appropriate to bear in mind certain basic principles of interpretation of statute. The rule stated by Tindal, C.J. in Sussex Peerage case, (1844) 11 Cl & Fin 85: 8 ER 1034, still holds the field. The aforesaid rule is to the effect: (ER p. 1057) “If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intent of the lawgiver.” It is a cardinal principle of construction of statute that when language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson & Co. Ltd, (1955) 2 All ER 345, Lord Reid pointed out as to what is the meaning of “ambiguous’ and held that: (All ER p. 366 C-D) “A provision is not ambiguous merely because it contains a word which in different context is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning.” It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose, [1953] SCR 1, had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway, Light Heat and Power Co. v. Vandray, AIR (1920) PC 181, it had been observed that the Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. …”

62. The treatise “Construction and Interpretation of the Laws” by Henry Campbell Black45 may be referred to again, wherein the rule against surplusage has been stated in the following manner:-

“In giving construction to a statute, the courts are bound, if it be possible, to give effect to all its several parts. No sentence, clause, or word should be construed as unmeaning and surplusage, if a construction can be legitimately found which will give force to and preserve all the words of the statute.”

63. The rule against surplusage is a principle of statutory construction based on semantics. The principle requires the courts to give each word and clause of a statute operative effect. The courts should not interpret any statutory provision in a way that would render it or another part of the statute inoperative or redundant or devoid of any meaning or application.

64. In interpretation of statutes, the courts would always presume that legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. It is for this reason that it has been held that legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature would not be accepted except for compelling reasons; the rule being that a meaning should, if possible, be given to every word in the statute, unless there are good reasons to the contrary.

65. In the context of the JJ Act, an order granting bail to a juvenile by the Board would be subject to an appeal under Section 101 by any aggrieved person, including the victim/complainant, and thereafter a revision under Section 102. The aggrieved person, including the victim/complainant, would therefore, have a remedy against an order granting bail under Section 12 or at the 45 The Construction and Interpretation of the Laws; Henry Campbell Black; p. 83 (West Publishing Co.) stage of appeal under Section 101. It would therefore be of no avail to raise an argument, as is sought in the present case, that the victim/complainant having not been given any right to oppose the bail at the stage of Section 12 or Section 101, no such right can be claimed at the stage of revision under Section 102.

66. This would be more so for the reason, as noticed above, that the victim/complainant would have a right to raise a challenge to an order granting bail passed under Section 12 or any such order passed at the stage of appeal under Section 101; however, in the event the victim/complainant is denied an opportunity to oppose the bail at the stage of revision under Section 102, which is the final stage under the statute, he would be left remedy-less. It is in this view of the matter that the victim/ complaint cannot be deprived of an opportunity of hearing on the face of the express provision contained under the proviso to Section 102 of the JJ Act.

67. The JJ Act is a beneficial legislation aimed to provide for protection of rights of “child in conflict with law”, and also a “child in need of care and protection”. There may be a situation, as in the present case, where the person in conflict with law is a child so also is the victim/complainant. The protection granted to a juvenile under the provisions of the JJ Act, cannot be held to be absolute but it would be circumscribed by the provisions of the Act and would apply strictly upon fulfillment of the conditions precedent therefor. The Act provides for beneficent consequences, and thus, it is required to be construed liberally; however, the beneficent legislation is not to be construed so liberally in favour of the “child in conflict with law” so as to deny the basic right of an opportunity of hearing to the victim who, in many cases, may also be a child — “a child in need of care and protection”.

68. It is also relevant to note that the JJ Act apart from being a beneficent legislation, is also a remedial one. The rule under Section 12(1) is for grant of bail to a “child in conflict with law” irrespective of questions regarding his role and complicity or the gravity of the offence. The reasons for which bail can be denied as spelt out under the proviso to Section 12(1), namely, that the release is likely to bring that person into association with any known criminal or expose the person to moral, physical and psychological danger or the persons release would defeat the ends of justice, go to show that these are all reasons which are indicative of the legislative intent of giving primacy to the interest of the “child in conflict with law”.

69. It may also be noticed that as per terms of sub-section (2) of Section 12 where the juvenile is not released on bail under subsection (1), the statute enjoins that he is to be kept only in an observation home, in such manner, as may be prescribed, until he can be brought before a 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. 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.

70. 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.

71. Section 16 provides for a periodic review of pendency of cases relating to inquiry before the Board. Section 17 empowers the Board to pass orders regarding a child not found to be in conflict with law and in terms of Section 18, the Board is empowered to pass orders regarding child found to be in conflict with law. Amongst the various orders which may be passed by the Board under Section 18, it is provided, as per terms of clause (g) of sub-section (1), that the Board may 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. As per subsection (3) where the Board after preliminary assessment under Section 15 passes an order that there is a need for trial of the 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.

72. Section 19 relates to powers of Children’s Court and in terms of sub-section (1) thereof after receipt of preliminary assessment from the Board under Section 15, the Children’s Court may decide that- (i) there is a need for trial of the child as an adult as per the provisions of the Code and pass appropriate orders after trial subject to the provisions of the 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. Sub-section (2) of Section 19 provides that 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 the child, including follow-up action by the probation officer or the District Child Protection Unit or a social worker. As per sub-section (3) the Children’s 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. It is further provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided during the period of stay of the child in the place of safety.

73. Section 21 mandates that 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 the JJ Act or under the provisions of the Penal Code or any other law for the time being in force.

74. The aforementioned statutory provisions underline the scheme of the JJ Act which shows that irrespective of the fact that in a situation a juvenile may have been denied bail for the reasons spelt out under the proviso to Section 12(1), the beneficial and the remedial provisions of the legislation with avenues for reform and rehabilitation would continue to be available.

75. The test as to whether a person would be entitled to an opportunity of being heard in a challenge to an order passed in an original proceeding, or an appeal thereon, by another cannot be held to be dependent necessarily on whether such a person had a right to be heard in the original proceeding or at the stage of appeal. A person who is entitled to be heard in an original proceeding may legitimately assert a right to be heard when a substantive right created by an order passed in that proceeding is sought to be assailed before a higher forum at the behest of another person but a 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. The entitlement or the right of hearing at a particular stage would have to be assessed independently, by considering the consequences of the proceeding in which a hearing is sought. In a situation where a 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 the original order was passed.

76. Applicability of principles of natural justice as part of our jurisprudence is not merely a matter of statutory entitlement but a recognition of the constitutional right to fair procedure and fair treatment. 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.

77. The victim/complainant would therefore be entitled to a reasonable opportunity of being heard in a revision where the order refusing bail by the Board under Section 12 and by the appellate authority under Section 101, are sought to be assailed. This would be more so on the face of the express provision under the proviso to Section 102 which mandates 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.

78. It would be apt to take note that one of the grounds on which bail may be denied to a juvenile, as per the exception carved out under Section 12 (1), would be a situation where his release would defeat the ends of justice. In a given case, the release of the juvenile may have the consequence of defeating the ends of justice, for reasons which may be multifarious, and may include within its ambit situations, which may be having the effect of causing prejudice to the rights of the victim/complainant.

79. To put it differently, a situation where the juvenile’s release would have the effect of defeating the ends of justice, may in a given case, also be a cause of prejudice to the victim/complainant. It would therefore be seen that one of the grounds for denial of bail under Section 12(1) i.e. the person’s release defeating the ends of justice, may have a linkage, direct or otherwise, to a cause of prejudice to the victim/complainant.

80. A conjoint reading of the proviso to Section 12 (1) and the proviso to Section 102 would therefore lead to the inference that an order granting bail to a juvenile, in given case, may have the effect of defeating the ends of justice by causing prejudice to the rights of the victim/complainant. There being a likelihood of the rights of the victim/complainant being prejudiced, it would follow, as a logical corollary, that he would be entitled to a reasonable opportunity of being heard at the stage of revision under Section 102 where the order rejecting the bail application is sought to be assailed.

81. Our criminal justice system rests itself on the edifice of a fair trial. The concept of fairness would require to be manifest in an infinite variety of actual situations with the ultimate test being— whether denial of opportunity has deprived the quality of fairness to a degree where miscarriage of justice has resulted. It may not be wholly correct to say that it is only the accused who is entitled to be fairly dealt with. Taking such a view may result in gross injustice to the victims, their family members, relatives and to the society at large. Denial of opportunity— a fair opportunity— is as much injustice to the accused as it is to the victim. Failure to grant a fair hearing would be equally a cause of prejudice to the accused as to the victim. It is for this reason, that the criminal justice system would have to accord primacy to the triangulation of interests of the accused, the victim and the society that acts through the State and its prosecuting agencies.

82. Having regard to the aforestated reasons, this Court is of the view that before passing an order in revision under Section 102 of the JJ Act, in a matter relating to consideration of bail to a ‘child in conflict with law’, the complainant/victim would be required to be given a reasonable opportunity of being heard before any order prejudicial to his/her interest, is passed. Taking any other view would render the proviso to Section 102 redundant.

83. Let notice be issued to opposite party no.2 returnable within four weeks.

84. List/put up on date fixed.

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