Chhattisgarh High Court: A Bench of Prashant Kumar Mishra, Acting C.J. and Vimla Singh Kapoor, J. has held that “the grant of bail to a juvenile is required to be dealt with under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and not under Sections 437 or 439 CrPC.”
Faced with application filed under Section 439 by a juvenile for grant of bail, the Single Judge, while differing from the view taken by coordinate benches in Mohan v. State of Chhattisgarh, 2015 SCC OnLine Chh 126 and Subhash Kumar v. State of Chhattisgarh, (MCrC No. 5651 of 2014, dated 28-11-2014), referred the following question for a decision by the present bench of two Judges: “Whether in view of non-obstante clause contained in Section 12 of the JJ Act, 2015, provisions under Section 437 and 439 of CrPC are applicable for being invoked for grant of bail by a child in conflict with law as defined under the JJ Act, 2015?”
While the view in Mohan and Subhash Kumar was that despite the provisions contained in Section 12 of the JJ Act, the bail application under Section 439 CrPC is maintainable before the Sessions Court and the High Court, the correctness of the view was doubted by the Single Judge in the present case.
Discussing the relevant provisions of the JJ Act and CrPC, the High Court noted that by use of the term “otherwise” in Section 8(2) of JJ Act, the jurisdiction under Section 439 CrPC would not be attracted which is otherwise excluded by use of the term “notwithstanding anything contained in the CrPC or in any other law for the time being in force”, as occurring in Section 12(1) of the JJ Act.
Further, under the statutory scheme of the JJ Act, a comprehensive provision has been made as to how a child in conflict with law has to be dealt with when he is apprehended and not released on bail. The said provisions are contained under sub-sections (2), (3) and (4) of Section 12. The provisions pari materia to this are not available under Section 439 CrPC. In the absence of such provision either in case of denial of bail or even when the bail is allowed under Section 439 CrPC, but the conditions of bail are not satisfied, the juvenile would be deprived of his statutory right under Section 12(2), (3) & (4) of the JJ Act.
In sum, it was held: “Section 12 of the JJ Act having included ‘notwithstanding anything contained in the Code or in any other law for the time being in force’, the provisions as contained in the Code in respect of grant of bail under Sections 437 and 439 have to be excluded and shall not apply while considering the juvenile’s right to be enlarged on bail for which a specific provision has been made under Section 12.”
While answering the reference as above, the bail application was dismissed. [Tejram Nagrachi v. State of Chhattisgarh, 2019 SCC OnLine Chh 24, Order dated 5-4-2019]
