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Provisions for Grant of Bail Under J.J Act & CrPC Inconsistent with Each Other : H.C. of Punjab & Haryana
Two petitions i.e. Vicky v State of U.T, Chandigarh & Nitesh v State of U.T, Chandigarh were filed before the High Court of Punjab & Haryana u/s 439 of CrPC for grant of regular bail during the pendency of trial. The petitioners were being tried for the offences u/s 147, 148, 149, 302, 34 of IPC. The FIR was registered at Mauli Jagran, Chandigarh on 18-02-2019.
Facts :
The F.I.R was registered based on the statement of Viney Pandey. While standing on his roof, he saw 4-5 persons fighting & the petitioners were holding some shiny weapons. Thereafter, he heard the noise of 'bachao bachao' due to which he called the police. When the PCR van arrived, he too reached at the spot where Viney saw one person injured & he was immediately taken to the hospital. The victim stated that the petitioners intended to kill him & he could identify them.
The matter was investigated, thereby Vicky & Nitesh were found to be the accused. A Kulhari & Clothes covered in blood stains were recovered from Vicky's hut. The petitioners were sent to juvenile home, thereafter Vicky was to be tried as an adult in the Children's Court for the death of Laxman, the victim due to the order by the Juvenile Justice Board on 11-03-2019. His bail application was dismissed by AddI. Sessions Judge, Chandigarh by an order dated 12-06-2019.
Subsequently, a broken piece of sword was recovered from the possession of Nitesh & he was too ordered to be tried by the Children's Court as an adult. His bail application was too dismissed on 07-07-2020. Therefore, the petitions have been filed before the H.C.
Petitioner's Submission :
The learned counsel appearing for the petitioners submitted,
- That both the petitioners are juvenile within the meaning of Sec 2(35) of Juvenile Justice (Care & Protection of Children) Act, 2015 & therfore they are entitled to bail u/s 12 of the Act.
- That the gravity of the offence should not be taken into consideration while deciding on the bail application of the juveniles.
- That bail can only be denied u/s 12, if the juvenile released, would come into association with any known criminal, or be exposed to moral, physical or psychological danger or his release would defeat the ends of justice.
- That none of the contengencies are to be found in the instant case and so the petition should be allowed.
- That as the trial is now being tried by Children's Court, the provisions of CrPC are applicable & the application for bail u/s 439 is maintainable.
Respondent's Submission :
The learned counsel appearing for the respondents submitted,
- That the petitioner are guilty of heinous crime & weapons are also been recovered from them.
- That the JJB by virtue of Sec 15 of the Act conducted the preliminary assessment, whereby the board passed an order u/s 18 (3) of the Act, that the petitioners are to be tried as an adult.
- That the petitioner- Vicky has withdrawn the bail application u/s 12 of JJ Act on 26-04-2019 & once it has been withdrawn the only remedy available is to re-apply for bail before the JJ Board and on rejection to appeal u/s 101(1) of the JJ Act & a revision u/s 102 of the Act. (Radhika Juvenile & ors v State of U.P & ors 2019 (3) Crimes 311).
- That the petitioner- Vicky cannot file a petition for grant of bail u/s 439 of CrPC.
Observations of the Court :
The court quoted some relevant provisions of the Act. It was also observed that Sec 1(4) clearly speaks out that the provisions would apply to all matters concerning children irrespective of any law in force. The JJ Act is a special law & it will always prevail over the general law. The Act lays down that a child above the age of 16 years who has committed a heinous crime has to be dealt with Sec 15 of the Act & not otherwise.
Section 15 of the Act provides for the preliminary assessment to be carried out with regard to the mental & physical capacity of the juvenile to commit an offence & understand the consequences after which the Board can transfer the trial of the case to the Children's Court which can try the matter u/s 18 of the Act.
Therefore the provisions of CrPC are only applicable for the purpose of trial u/s 19 of the Act. Sec 19(1)(i) specifies "there is a need for trial as an adult as per the provisions of CrPC & pass appropriate orders after trial subject to the provisions of this section."
The court stated, that the only section which speaks about the bail is Sec 12. However, the court found, that the provision does not differentiate between a bail allowed to a juvenile involved in petty, serious & heinous offence, or between a juvenile who is being tried by the Children's Court as an adult.
Sec 12 of the Act provides that a juvenile should be granted bail notwithstanding the provisions of CrPC or any other law. U/s 439 of CrPC, bail can only be rejected keeping in mind the gravity of the offence but JJ Board cannot consider it u/s 12 of the Act. The bail can only be rejected on three grounds & not beyond that. Hence, both the provisions of JJ Act & CrPC are inconsistent with each other.
The court pointed out that in the case of Tejram Nagrachi Juvenile v State of Chhatisgarh & ors 2019 CriLJ 4017, the bench held that the term 'otherwise' in Sec 8(2) of the Act does not attract Sec 439 of CrPC which have been excluded u/s 12 of the Act. Sec 12 of the Act has an overriding effect, & so the bail of Juvenile in conflict with law has to be dealt u/s 12 of the Act to the extent it excludes Sec 437 & 439 of the Code.
Judgement :
The court therefore, held that bail application u/s 439 of the Code is not maintainable & directed the petitioners to approach the JJ Board u/s 12 of the Act which is to be decided within 7 days & Vicky is at liberty to file an appeal u/s 101 of the JJ Act.
Judge : Hon'ble Ms Justice Jaishree Thakur.
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