JUDGMENT :

1. This application has been filed under Sections 439 and 440 of the Code of Criminal Procedure, for grant of bail to the petitioner, who is an accused in Runnisaidpur P.S. Case No. 325 of 2019 registered under Section 376 of the Indian Penal Code and Section 6 of the POCSO Act.

2. The prosecution case, in brief, is that the petitioner on 17.08.2019 around 12 P.M. entered into the house of the victim (informant) where she was alone, and committed rape on her. On her protest, he threatened to kill her, with knife on her neck.

3. Learned counsel for the petitioner submitted that the petitioner has been declared juvenile by the Special Court, POCSO Act, vide order dated 01.10.2019, as his age on the alleged date of occurrence has been assessed as 17 years 11 months and 07 days. It has also been submitted that the petitioner is in the ‘Observation Home’, Muzaffarpur, since 18.08.2019.

4. A supplementary affidavit has been filed by the petitioner bringing on record the order dated 01.10.2019, passed by the learned A.D.J.-I, Sitamarhi. On 21.08.2019, a petition on behalf of the accused having been filed before the learned court below contending that on the date of the commission of the alleged occurrence, the accused had not completed eighteen years of age, thus, his case be transferred to the Juvenile Justice Board, Sitamarhi, for trial and disposal. Whereupon, the learned court below itself conducted an inquiry as prescribed under Section 34 of the POCSO Act and has determined the age of the petitioner to be 17 years 11 months and 07 days on the date of alleged occurrence, thus, declared him a ‘child in conflict with law’.

5. The relevant part of the said order dated 01.10.2019 passed by the Ist A.D.J., Sitamarhi is extracted hereunder:-

“From the record, it appears that the date of birth of the accused Sumit Kumar is 10.09.2001 (Ext. 1) which has also supported by the Xerox copy of S.L.C. of the said accused issued by the Headmaster of the Government Middle School, Bhale. Date of occurrence is 17.08.2019 and on calculation, the accused was 17 years 11 months and 07 days on the alleged date of occurrence. Thus, he appears to be more than 16 years and below 18 years, accordingly, he is declared ‘child in conflict with law’ (C.C.L.). The C.C.L. Sumit Kumar be tried as adult as per the provision of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Put up on 18.10.19, awaiting F.F. and C.C.L. Sumit Kumar is remanded back to the Jail, Sitamarhi, with a direction to the Superintendent of Jail, Sitamarhi, to send him to the ‘Observation Home’, Muzaffarpur, and also to produce him before this court on the date fixed.”

6. The petitioner moved for grant of bail before the Additional District and Sessions Judge Ist-cum-Special Court, POCSO Act, Sitamarhi, which was heard and rejected, vide order dated 14.11.2019. Thereupon, the petitioner has moved before this Court for grant of bail in connection with the said case, filing the instant application.

7. At this stage, in the facts and circumstances stated above, before delving into the merits of the case for the purpose of considering bail of the petitioner, this Court would primarily

like to consider the issues involved, incidentally, in this case, which are as under:

(i) Whether the Special Court designated under POCSO Act, 2012, after determination of the age of the petitioner, thereupon, holding him ‘child in conflict with law’ was under statutory obligation to forward the child to the Juvenile Justice Board constituted under the Juvenile Justice (Care and Protection of Children) Act, 2015.

(ii) Whether the Children’s Court established under the Commission for Protection of Child Rights Act, 2005, or the Special Court, designated under POCSO Act, in absence of any order regarding preliminary assessment of a child by the Juvenile Justice Board as contemplated under sub section (3) of Section 18, of Juvenile Justice Act, 2015, can proceed for trial of the child as an adult