JJ Act's Non-Obstante Clause Does Not Bar BSA Evidence Procedures for Children, Kerala HC Rules

The Kerala High Court upheld escorted movement of three children in conflict with law for evidence recovery, holding that BSA procedures can apply to CCLs if JJ Act safeguards are respected.

Justice G. Girish, sitting singly at the High Court of Kerala at Ernakulam, dismissed a criminal revision petition filed by three children in conflict with law (CCLs) who challenged an order of the Juvenile Justice Board (JJB), Alappuzha permitting their escorted movement for evidence recovery in a murder and theft case. Deciding the petition on the same day it was admitted—15 September 2026—the court held that the non-obstante clause in Section 1(4) of the Juvenile Justice Act, 2015 does not create a blanket bar against using investigation procedures under the Bharatiya Sakshya Adhiniyam, 2023 (BSA), provided the safeguards built into the JJ Act for the protection of children are strictly observed throughout.

The Crime and the Custody Route

The three revision petitioners are CCL Nos. 1 to 3 in Crime No. 668/2026 registered at Harippad Police Station, Alappuzha. The allegation against them is that they criminally trespassed into the residence of one Sivankutty Chettiyar in the midnight of 15 August 2026, strangulated him to death by smothering with a bedsheet, and then committed theft of gold ornaments from the almirah before fleeing. A fourth CCL, the deceased's granddaughter, is alleged to have aided and abetted them.

The three petitioners were apprehended on 18 August 2026 and sent to an Observation Home. On 29 August 2026, the Investigating Officer applied to the JJB for their temporary release for evidence collection, listing nine purposes: recovery of stolen gold ornaments, collection of evidence from the scene, recovery of a sim card, recovery of clothing worn during the offence, recovery of gloves and identification of their purchase location, identification of the CCLs by an autorickshaw driver and other witnesses, ascertaining the role of any other offenders, obtaining details of social media accounts and passwords, and taking fingerprints.

The JJB addressed the application in stages. On 29 August 2026 it directed the Special Juvenile Police Unit (SJPU) to interview the children at the Observation Home in a child-friendly atmosphere in the presence of the Legal Cum Probation Officer (LCPO), and deferred the question of escorted movement pending the interview results. On 31 August 2026 the JJB extended the interview window to run across two sessions on 1 September 2026. After reviewing the interview material, the JJB passed the impugned order on 7 September 2026 permitting escorted movement of CCLs 1 to 3 subject to thirteen specific safeguards.

What the CCLs Disclosed and Why Escorted Movement Was Sought

The Investigating Officer's request for escorted movement rested on four disclosures made during the permitted interviews. CCL No. 1 stated that the apparel he wore during the offence was under a cot at his residence, and that he had left gloves near an EV charging station between Haripad and Haripad railway station. CCL No. 2 stated that the group had purchased three sets of gloves and masks from a medical store between Haripad railway station and the KSRTC bus stand, and that he discarded the gloves and masks while travelling on a train. CCL No. 3 stated that gold ornaments, spray, and hair gel were taken to his home in a side bag, with the spray and hair gel stored in his almirah and the clothing from the night of the offence kept in a cardboard box under his cot. All three CCLs also disclosed that they had entered a house under construction to conspire and could point out its location.

The JJB permitted escorted movement strictly limited to recovering these four categories of material and imposed thirteen safeguards, including: the LCPO and Child Welfare Officer of the Observation Home to accompany the children throughout; no physical or mental torture; the CCLs not to be taken together to any location; transport in a non-government vehicle with SJPU officers in plain clothes without identifying insignia; no exposure to the public or media; no photographs or videos; prohibition on media disclosing any identifying information under Section 74 of the JJ Act; a medical examination of each child before departure from and upon return to the Observation Home; and the date and time of movement to be communicated privately only to named parties, with strict prohibition on disclosure.

The Legal Challenge Before the High Court

The CCLs raised three arguments in revision. First, that the JJB had passed the 7 September 2026 order without a fresh application from the Investigating Officer, making it inherently defective. Second, that the non-obstante clause in Section 1(4) of the JJ Act means that only procedures specifically provided under the JJ Act can apply to CCLs, and that the recovery mechanism under the proviso to Section 23(2) of the BSA (the functional successor to Section 27 of the Evidence Act) is alien to that Act and therefore impermissible. Third, that permitting escorted movement would violate Section 74 of the JJ Act by exposing the CCLs to public gaze and branding them as criminals before any preliminary assessment under Section 15 of the JJ Act had been completed.

How the Court Reasoned

On the procedural objection, Justice Girish traced the sequence of orders. The application dated 29 August 2026 was a single application on which the JJB passed three successive orders over seven days. The first order itself recorded that the question of escorted movement would be revisited after the interview, and directed the matter to be taken up again on 31 August 2026. The second order extended the interview window and again reserved the escorted movement question. The 7 September 2026 order was therefore a considered continuation of the same application, not a suo motu order. The court found the challenge on this ground “totally unfounded.”

On the non-obstante clause, the court read Section 1(4) carefully. That provision says that the JJ Act applies to all matters concerning CCLs, including apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration, notwithstanding anything in any other law. Justice Girish held that this clause means the principles and safeguards of the JJ Act must govern such matters, not that every other procedural mechanism is excluded merely because the JJ Act does not replicate it. The JJ Act does not abolish investigation; Sections 10 and 15 of the Act themselves contemplate that CCLs may be investigated for serious and heinous offences, and the Model Rules themselves envisage investigation material being placed before the JJB. The court held that there is no immunity from investigation simply because the accused is a child, and that BSA investigation procedures can be used so long as the cardinal principles of the JJ Act for the care and protection of children are strictly followed.

On the question of whether the JJB-supervised interview at the Observation Home could qualify as custody for the purposes of the proviso to Section 23(2) of the BSA, the court relied on the Supreme Court's interpretation of “custody” in Dharam Deo Yadav v. State of U.P. [(2014) 5 SCC 509], where it was held that custody under Section 27 of the Evidence Act does not require formal arrest and covers any situation of surveillance, restriction, or restraint by the police. That position was affirmed by the Supreme Court in Rohit Jangde v. State of Chhattisgarh [AIR 2026 SC 1095]. Justice Girish held that a CCL who has been apprehended and is in the effective control of the SJPU or Investigating Officer—even when interviewed under JJB supervision at the Observation Home—is functionally in a position analogous to an accused in custody for the purposes of evidence law, even if the JJ Act avoids that terminology for its own reformative purposes.

The court then addressed Rule 8(3)(v) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, which states that a child may be interviewed at a child-friendly corner of a police station that does not give the feel of being under custodial interrogation. Justice Girish read this as confirmation that what the law prohibits is not custodial interrogation of children as such, but the adverse impact that a crude form of custodial interrogation might cause on a child's mind. The interview at the Observation Home in the presence of the LCPO was therefore a minimised and diluted form of custodial interrogation conducted in conformity with the JJ Act, and the information obtained during it could form the basis for a Section 23(2) BSA discovery.

On the argument that escorted movement would hand the CCLs over to police custody in violation of the proviso to Section 10 of the JJ Act, the court noted that escorted movement is not a procedure unknown to the JJ Act: Sections 95(2) and 95(3) of the Act themselves provide for escorted movement when CCLs are transferred between JJBs or Child Welfare Committees. The same process, the court held, could be adopted for evidence collection. The continuous presence of the LCPO and Child Welfare Officer during the movement was treated as the decisive safeguard ruling out any reasonable apprehension of harassment or coercion by the Investigating Officer.

On the Section 74 and social stigma argument, Justice Girish acknowledged that the CCLs would inevitably be seen by some persons during movement, but found the apprehension of widespread public exposure to be largely speculative given the thirteen safeguards already in place. He added one further direction: escorted movement must take place after sunrise and before sunset, on days chosen to avoid crowded situations, without any clandestine procedure or imposition on the general public at odd hours. The existing JJB directions on media prohibition and suppression of the date and time of movement were found sufficient to address the Section 74 concern.

Outcome

Justice G. Girish dismissed Crl.Rev.Pet No. 998 of 2026 on 15 September 2026, finding no ground to interfere with the JJB's order dated 7 September 2026. The thirteen safeguards imposed by the JJB remain operative, and the court added the requirement that escorted movement be conducted between sunrise and sunset on days selected to minimise public exposure. The JJB's order permitting the SJPU to take CCLs 1 to 3 to the relevant locations for recovery of material objects stands confirmed.