Can Major Accused arrested as minor file bail application before JJ Board?

In an important Judgment, the Punjab and Haryana High Court has decided the question of law as to maintainability of bail application before the Juvenile Justice Board by an adult accused who was minor at the time of arrest. The Judgment/Order has been passed by the bench of Justice Jaishree Thakur in the case of Vicky vs State fof U.T. Chandigarh (CRM-M 21388 of 2020)

Issue:

whether a child in conflict with law, who is being tried as an adult for the purpose of trial under Section 18(3) of the J.J. Act, could maintain an application for grant of regular bail under Section 12 of the J.J. Act or under Section 439 Cr.P.C. before the Children’s Court and the High Court.  

Background:

Vicky (Applicant/Accused) was arrested alongwith other accused in connection with a murder and was sent to Juvenile Home. The Juvenile Justice Board formed an opinion that Vicky was to be tried as an adult in the Children’s Court for the death of one Laxman. He thereafter preferred an application for regular bail under Section 439 Cr.P.C., which was dismissed by the Addl. Sessions Judge, Chandigarh and while dismissing the said application the Court observed that his first bail application was dismissed by an order dated 12.06.2019.  Similarly with respect to co-accused Nitesh an opinion was formed by the Juvenile Justice Board that he was to be tried as an adult in the Children’s Court. The bail application under Section 439 Cr.P.C. preferred by petitioner-Nitesh was dismissed by the Addl. Sessions Judge, Chandigarh 

Contention of Applicants:

  1. Admittedly the petitioners herein are juvenile within the meaning of Section 2(35) of the Juvenile Justice (Care and Protection of Children) Act, 2015, therefore, would be entitled to grant of bail under Section 12 of J.J. Act.
  2. There is no bar on an application being preferred under Section 439 Cr.P.C., since the matter is being tried by the Children’s Court and not by the J.J. Board.
  3. Once the J.J. Board formed an opinion that the matter is to be tried by the Children’s Court, the provisions of the Code of Criminal Procedure, 1973 would be applicable and, therefore, bail application under Section 439 Cr.P.C. would be maintainable.

Contention of State:

  1. Petitioner-Vicky filed an application under Section 12 of the J.J. Act before the Board on 12.03.2019 but withdrew his said application on 26.04.2019 and this fact has not been disclosed by the petitioner-Vicky in his petition
  2. Once the bail application has been withdrawn, he could not have filed a petition for grant of bail under Section 439 Cr.P.C. and the only remedy available to them would have been to reapply for bail before the J.J. Board under Section 12 of the J.J. Act and in case, the application had been rejected, then an appeal should have been preferred under Section 101(1) of the J.J. Act and a revision under Section 102 of the J.J. Act thereafter

The Court held:

  1. The provisions of Cr.P.C. would not be applicable in dealing with a Child in Conflict with Law, who has been apprehended or detained for having committed an offence by virtue of Section 1(4) of the J.J. Act.
  2. Section 12 itself clearly spells out that notwithstanding any contained in the Code of Criminal Procedure or in any other law for the time being in force, bail shall be allowed to a child who is alleged to have committed a bailable or non bailable offence.
  3. The term ‘otherwise’ cannot be read as a power to entertaining an application under Section 439 Cr.P.C., which would then render Section 12 of the J.J. Act meaningless. 
  4. The provisions for grant of bail under the J.J. Act and under Section 439 Cr.P.C. are inconsistent with each other. Keeping in view the Special Act where the main objective is to rehabilitate a juvenile, Section 12 regarding grant of bail was incorporated in the J.J. Act, rather than following the procedure under Section 439 Cr.P.C, where there is every possibility of continued jail term on denial of bail.
  5.  Once a procedure is prescribed within the J.J. Act for grant of Bail, there can be no cogent reason for deviating from the same. 
  6. An application for grant of bail to a Child apprehended or detained by the police will be entertained by the J.J. Board under Section 12 of the J.J. Act and an application under Section 439 Cr.P.C. before the Children’s Court will not be maintainable.

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