Sanjay Kumar Pachori, J.
1. Heard Sri Bhanu Prakash Verma, learned counsel for the revisionist and Sri Manoj Kumar Dwivedi, learned A.G.A for the State. Despite service of notice upon opposite party no. 2, no one has appeared on behalf of the opposite party no. 2.
2. The Present Criminal Revision has been preferred under Section 102 of The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "JJ Act, 2015") against the judgment dated 22.07.2021 passed by Additional Sessions Judge/ Special Judge (POCSO Act), Mathura, in Criminal Appeal No. 43 of 2021 (arising out of Case Crime No. 70 of 2020), whereby the appellate court has rejected the appeal and affirmed the order dated 07.06.2021 passed by Juvenile Justice Board, Mathura. The Juvenile Justice Board has also rejected the bail application of juvenile 'X' which has been filed by his natural guardian/father, under Section 12 of "JJ Act, 2015", in Case No. 29 of 2020 in relation to Case Crime No. 70 of 2020 under Sections 395, 398, 412, 120-B of the Indian Penal Code (in short "I.P.C."), Police Station- Sadar Bazar, District- Mathura.
3. Being aggrieved of the judgment and order dated 22.07.2021 and 07.06.2021 passed by the Appellate Court as well as the Juvenile Justice Board, the juvenile 'X' through his father has preferred the instant revision before this Court.
4. Learned counsel for the revisionist vehemently submitted that the juvenile was below 18 years of age at the time of the incident. The Juvenile Justice Board has declared the juvenile 'X' was 16 years 06 months and 15 days old at the time of incident vide order dated 17.03.2021 and no proceeding is pending against the order dated 17.03.2021. It has been further submitted that juvenile 'X' has been falsely implicated in this case. The name of juvenile 'X' has surfaced in the present case on the basis of confessional statement of co-accused and at the time of arrest of the juvenile 'X' false recovery has been shown against the juvenile 'X'. It is next submitted that the no incriminating article/money has been recovered from the possession of the Juvenile. The alleged recovery of Rs.3,61,000/- as shown in the recovery memo is made without complying the mandatory provision of Section 100 Cr.P.C. It is further submitted that no recovery has been made under Section 27 of The Indian Evidence Act, 1872. There is no independent witness of the alleged recovery. There is no criminal antecedent to his credit.
5. It is further submitted that there is no identification parade has been conducted by Police for identification of the applicant in the commission of the instant crime. The finding recorded by the court below is against the social information report and is based on surmises and conjectures. It has been further submitted that there is no evidence to show that if in case the juvenile is released on bail, then his release is likely to bring him into association with any known criminal, or expose him to moral, physical, or psychological danger, or that his release would defeat the ends of justice, no such finding was recorded as to how he will come in contact with known criminals and how he will be exposed to moral, physical, or psychological danger, or that his release would defeat the ends of justice. The juvenile is in protective custody in an observation home since 14.05.2020.
6. Learned counsel for the revisionist further submits that juvenile 'X' has no criminal antecedent to his credit except the present case and is not a previous convict nor is associated in any kind of unsocial or criminal activities. There is no report regarding any previous criminal antecedents of the family of the revisionist. The natural guardian/father of the revisionist giving an undertaking that if juvenile is released on bail, he will keep him in his custody and look after him properly and assure on behalf of the juvenile that he is ready to cooperate with the process of law and shall faithfully make the juvenile available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him.
7. It has been further submitted that the Juvenile Justice Board as well as the Appellate Court have not appreciated the Social Information Report of the Probation Officer in its right perspective and passed the impugned judgment and order in a cursory manner without considering the position of law and have declined bail to the revisionist. The bare perusal of the impugned orders demonstrates that the same has been passed on flimsy grounds, which have occasioned a gross miscarriage of justice. The judgment and order passed by the learned court below are illegal, contrary to law, and based on the erroneous assumption of facts and law.
8. Per contra; learned A.G.A. defended the impugned judgment and order passed by the Appellate Court as well as the Juvenile Justice Board and contended that the ghastly crime was committed by the juvenile. Considering the gravity of offence, the present revision is liable to be dismissed.
9. I have carefully considered the submissions made by the learned counsel for the revisionist and learned A.G.A. for the State and perused the material on record.
10. The learned Juvenile Justice Board declared juvenile 'X' as juvenile vide order dated 17.03.2021 after conducting an enquiry and held that juvenile 'X' was 16 years 06 months and 15 days old at the time of the incident on the basis of High School certificate wherein date of birth of juvenile 'X' is 28.10.2003.
11. The bail application under Section 12 of "JJ Act, 2015" has been rejected by the Juvenile Justice Board vide order dated 07.06.2021 observing that there appears a reasonable ground for believing that the guardian of the juvenile has no effective control over juvenile 'X' and there is a possibility of re-occurrence of the offence after his release. Furthermore, Juvenile ‘X’ has committed the heinous offence and the juvenile was indulged in this activity due to lack of discipline. The appellate court has also affirmed the order passed by the Juvenile Justice Board. The appellate court without considering the social information report of the Probation Officer in the right perspective as well as without returning any finding on the three exceptions, declined the bail to juvenile 'X' and rejected the appeal after observing that the parents of the juvenile are unable to keep the juvenile under control, there is a lack of availability of consultant and if the juvenile released on bail, the juvenile is likely to bring into association with any known criminals.
12. To examine the validity of the impugned order, it is useful to note the relevant provisions of the as well as the case laws relating to the subject.
13. Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015 reads as under:
"12. Bail to a person who is apparently a child alleged to be in conflict with law.- (1) When any person, who is apparently a child and is alleged to have committed a bailable or nonbailable 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-incharge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can brought before a Board.
(3) When such person is not released on bail under subsection (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order
(4) When a child in conflict with law is unable to fulfill 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."
(emphasis added)
14. It is a settled position of law that the use of the word 'shall' in sub-section (1) of Section 12 of "JJ Act, 2015" is of great significance. The use of the word 'shall' raises a presumption that the particular provision is imperative, but this prima facie inference may be rebutted by other considerations such as the object and scope of the enactment and the consequences flowing from such construction. The word 'shall' has been construed as ordinarily mandatory, but it is sometimes not so interpreted if the context or intention otherwise demands.
15. Provisions of Section 12 of "JJ Act, 2015" manifest that ordinarily, the Juvenile Justice Board is under obligation to release the juvenile on bail with or without surety. The juvenile shall not be so released in certain circumstances as the latter part of the section also uses the word 'shall' imposing certain mandatory conditions prohibiting the release of the juvenile by the Juvenile Justice Board. If there appears reasonable grounds for believing; (a) that the release is likely to bring him into association with any known criminal; (b) that release is likely to expose him to moral, physical, or psychological danger and (c) that release of juvenile in conflict of law would defeat the ends of justice.
16. The term 'known criminal' has not been defined in "the Juvenile Justice Act" or Rules framed thereunder. It is a wellsettled rule of interpretation that in the absence of any statutory definition of any term used in any particular statute the same must be assigned meaning as in commonly understood in the context of such statute as held by Supreme Court in Appasaheb v. State of Maharashtra, (2007) 9 SCC 721 [LQ/SC/2007/16] in para 11 as under: (SCC p. 726 para 11)
"11......It is well settled principle of interpretation of statute that if the is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understand to have a particular meaning in it, then the words are to be construed as having that particular meaning. [See: Union of India v. Garware Nylons Ltd., (1996) 10 SCC 413 [LQ/SC/1996/1435] : AIR 1996 SC 3509 [LQ/SC/1996/1435] and Chemical and Fibers of India v. Union of India, (1997) 2 SCC 664 [LQ/SC/1997/13] : AIR 1997 SC 558 [LQ/SC/1997/13] ]
17. From a bare reading of the provisions of Section 12 of "JJ Act, 2015", it appears that the intention of the legislature is to grant bail to the juvenile irrespective of the nature or gravity of the offence alleged to have been committed by the juvenile, and bail can be declined only in such cases where there are reasonable grounds to believe that the release is likely to bring the juvenile into an association of any known criminal or expose him to moral, physical, or psychological danger, or that his release would defeat the ends of justice. The gravity of offence is not a relevant consideration for declining the bail to the juvenile. A juvenile can be denied the concession of bail if any of the three contingencies specified under Section 12(1) of "JJ Act, 2015" is available. A similar view has been taken in cases of Manoj Singh v. State of Rajasthan, 2004 (2) RCC 995, Lal Chand v. State of Rajasthan, 2006 (1) RCC 167, Prakash v. State of Rajasthan, 2006 (2) RCR (Cri.) 530, Udaibhan Singh @ Bablu Singh v. State of Rajasthan, 2005 (4) Crimes 649, Shiv Kumar @ Sadhu v. State of U.P., 2010 (68) ACC 616 (LB), Maroof v. State of U.P., [2015 (6) ADJ 203 [LQ/AllHC/2015/1011] ].
18. In Nand Kishore (in JC) v. State (2006) 4 RCR (Cri.) 754, Delhi High Court, while considering the first condition of proviso of Section 12 of Juvenile Justice Act, observed that "as regards the first exception, before it can be invoked to deny bail to a juvenile there must be a reasonable ground for believing that his release is likely to bring him into association with any known criminal. The expression known criminal is not without significance when the liberty of a juvenile is sought to be curtailed by employing the exception, the exception must be construed strictly. Therefore, before this exception is invoked, the prosecution must identify the 'known criminal', and then the court must have reasonable grounds to believe that the juvenile, if released would associate with this 'known criminal'. It cannot be generally observed that the release of the juvenile would bring him into association with criminals without identifying the criminals and without returning a prima facie finding with regard to the nexus between the juvenile and such criminal..."
19. Similar view has been taken in Manmohan Singh v. State of Punjab, PLR (2004) 136 P & H 497 wherein, it was observed as under:
"7....The reasonable grounds for believing that his release is likely to bring into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice, should be based upon some material/evidence available on the record. It is not a matter of subjective satisfaction but while declining bail to the juvenile on the said ground, there must be objective assessment of the reasonable grounds that the release of the juvenile is likely to bring him in association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice...
8. In Sanjay Kumar's case (supra) it has been held by the Allahabad High Court that every juvenile whatever offence he is charged with, shall be released on bail but he may, however, be refused bail if there appears reasonable ground for believing that the release is likely to bring him into association with the any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice and that the existence of such ground should not be mere guess work of court but it should be substantiated by some evidence on record."
20. Section 26 of the IPC defined the expression "Reason to believe" means a person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise. In view of Section 26 of I.P.C., if there is sufficient cause to believe, reason to believe exists. The expression "reason to believe" excludes a mere suspicion. The word 'believe' is very much a stronger word than 'suspect'.
21. The Constitution Bench of Apex court in Gurbaksh Singh Sibia v. State of Punjab, (1980) 2 SCC 565 , [LQ/SC/1980/169] while interpreting the expression "reason to believe" observed as under: (SCC p. 589 para 35)
"35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The application must show that he has "reason to believe" that he may be arrested for a non bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief or which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested....."
22. The Supreme Court again in the case of Union of India v. Shiv Shankar Kesari, (2007) 7 SCC 798 , [LQ/SC/2007/1115] interpreted the expression "reasonable ground to believe" as under: (SCC p. 801, 802 paras 7, 8, 9 and 10)
"7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.
8. The word "reasonable" has in law the prima faice meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of word "reasonable".
7. ...In Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy."
[See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar (1987) 4 SCC 497 [LQ/SC/1987/656] at page 504 para 7 , and Gujarat Water Supply and Severage Board v. Unique Erectors (Gujarat) (P) Ltd. (1989) 1 SCC 532 [LQ/SC/1989/47]
9. "9. ...It is often said that 'an attempt to give a specific meaning to the word "reasonable" is trying to count what is not number and measure what is not space.' The author of Words and Phrases (Permanent Edn.) has quoted from Nice & Schreiber, In re 123 F 987 at p. 988 to give a plausible meaning for the said word. He says
'the expression "reasonable" is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined'
It is not meant to be expedient or convenient but certainly something more than that"
10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315 [LQ/SC/2003/644] )
23. Section 13(1)(ii) of "JJ Act, 2015" provides that the Probation Officer shall submit a social investigation report within two weeks from when a child is apprehended or brought, to the Board containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making the inquiry. The "social investigation report" which has been defined in Rule 2(xvii) of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, means the report of a child containing detailed information pertaining to the circumstances of the child, the situation of the child on economic, social, psycho-social and other relevant factors, and the recommendation thereon. This report becomes important for the inquiry to be done by the Board while passing such orders in relation to such a child as it deems fit under Sections 17 and 18 of this Act. The purpose behind this provision is to enable the Juvenile Justice Board to get a glimpse of the social circumstances of the child before any order regarding bail or of any other nature is passed.
24. 'Form-6' of The Juvenile Justice (Care and Protection of Children) Model Rules, 2016, contains a detailed proforma of the social investigation report. The report has three parts; the first part requires the Probation Officer to give the data or information regarding the close relatives in the family, delinquency records of the family, social and economic status, ethical code of the family, attitude towards religion, relationship amongst the family members, the relationship with the parents, living conditions etc. Thereafter, the report requires the Probation Officer to provide the child's history regarding his mental condition, physical condition, habits, interests, personality traits, neighbourhood, neighbours' report, and school, employment, if any, friends, the child being subject to any form of abuse, circumstances of apprehension of the child, mental condition of the child. The most important part of the report is the third part i.e. the result of inquiry where the Probation Officer is required to inform the Board about the emotional factors, physical condition, intelligence, social and economic factors, suggestive cause of the problems, analysis of the case including reasons/contributing factors for the offence, opinion of experts consulted and recommendation regarding rehabilitation by the Probation Officer/Child Welfare Officer. It is incumbent upon the Juvenile Justice Board to take into consideration the social investigation report and make an objective assessment of the reasonable grounds for rejecting the bail application of the juvenile.
25. Section 3 of "JJ Act, 2015" provides that the Central Government, the State Government, the Board, and other agencies, as the case may be, while implementing the provisions of the, shall be guided by the fundamental principles of care and protection of children. Some of the principles are as under:
(i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala-fide or criminal intent up to the age of eighteen years.
(ii) Principle of dignity and worth: All human being shall be treated with equal dignity and rights.
(iii) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.
(iv) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.
(v) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the process pertaining to a child.
(vi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and through out the judicial process.
26. After noticing the position of law, now I revert back to the facts of the present case, as per the Social Information Report (SIR), demonstrates that the juvenile has passed Class Xth and has two siblings younger sister having age of 13 years is studying in Class Xth and younger brother having age of 12 years is studying in Class XIII respectively. The father of the Juvenile ‘X’ is illiterate; mother XIII standard pass and relations among the family members are cordial; parents of the juvenile have no criminal antecedent. Father does agricultural work. The SIR further noted that discipline in the house of the juvenile is normal/moderate. Further, the Probation Officer has noted as:-
"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."
27. First Information Report of the present case has been lodged by the opposite party no. 2 on 12.05.2020 at 19:45 hrs., under Sections 394 of I.P.C. According to the F.I.R., on 12.05.2020 at about 02:35 P.M. against four unknown persons taking Pistols on their hands have entered into the bank with the intention to commit robbery. One of them crossed the cabin so as to reach near the cashier Srishti Saxena with a pistol in his hand and robbed Rs.5,94,627/- kept in the cabin by putting a pistol on the forehead of the cashier and the other three robbers took the cashier and other staff hostage on the gunpoint, and then opened the strong room at gunpoint with cashier Srishti Saxena and Assistant Manager Neelam Garg, then the Cashier Srishti Saxena and Assistant Manager Neelam Garg got the strong room opened at gunpoint and the entire amount kept in it was Rs. Rs.15,12,500/- including money of Rs.10,000/- was robbed. The Police has recovered Rs.3,61,000/- from the possession of the Juvenile.
28. In view of the above foregoing discussion, I am not satisfied with the reasoning and conclusion arrived by the Appellate Court as well as the Juvenile Justice Board in the impugned judgment and order. The Juvenile Justice Board as well as the Appellate Court have not properly appreciated the mandatory provisions of Section 12 of "JJ Act, 2015" as well as other provisions in relation to juvenile 'X' and declined the bail merely on the basis of unfounded apprehension. In the absence of any material or evidence of reasonable grounds, it cannot be said that his release would defeat the ends of justice and have failed to give reasons on three contingencies for declining the bail to juvenile 'X'. The findings recorded by the Juvenile Justice Board as well as the Appellate Court are based on the heinousness of the offence, therefore, the order dated 07.06.2021 passed by the Juvenile Justice Board and judgment dated 22.07.2021 passed by the Appellate Court are not sustainable. Hence, are set-aside and the present revision is allowed.
29. Let juvenile 'X' through his natural guardian/father, who is in observation home since 14.05.2020 be released on bail in Case Crime No. 70 of 2020 under Sections 395, 398, 412, 120-B of the I.P.C., Police Station- Sadar Bazar, District- Mathura furnishes a personal bond on his father (Bablu @ Sunder Singh Gujar) with two sureties of his relatives each in the like amount to the satisfaction of Juvenile Justice Board, Mathura, subject to the following conditions:
(i) Natural guardian/father will furnish an undertaking that upon release on bail juvenile 'X' will not be permitted to go into contact or association with any known criminal or allowed to be exposed to any moral, physical, or psychological danger and further that the father will ensure that the juvenile will not repeat the offence.
(ii) Natural guardian/father will further furnish an undertaking to the effect that the juvenile will pursue his study at the appropriate level which he would be encouraged to do besides other constructive activities and not allowed to waste his time in unproductive and excessive recreational pursuits.
(iii) Juvenile and natural guardian/father will report to the Probation Officer on the first Monday of every calendar month commencing with the fourth Monday of January 2022, and if during any calendar month the first Monday falls on a holiday, then on the following working day.
(iv) The Probation Officer will keep a strict vigil on the activities of the juvenile and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Mathura, on such a periodical basis as the Juvenile Justice Board may determine.
30. Before parting with the judgment, it is necessary to point out that the identity of the juvenile in the present matter has been disclosed in the impugned judgment and order which violates the right to privacy and confidentiality of the juvenile and against the law laid down by the Supreme Court in Shilpa Mittal v. NCT Delhi, (2020) 2 SCC 787 [LQ/SC/2020/37 ;] ">(2020) 2 SCC 787 [LQ/SC/2020/37 ;] [LQ/SC/2020/37 ;] wherein, it was held that the identity of the juvenile shall not be disclosed.
31. The present revision has been filed by Juvenile 'X' through his natural guardian/father. The memo of parties discloses the name of the juvenile. The Registry is directed to conceal the names of juvenile from the cause list as well as the record of this case so that the names and identities are not disclosed as directed by the Supreme Court in Shilpa Mittal (supra).
