1. The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have raised no complaint
regarding audio and visual quality.
2. The instant bail application is being heard by the Division Bench of this Court on reference being made by the learned Single Judge vide order
17.10.2020, on the issue of maintainability of bail under Section 439 of the Code of Criminal Procedure for juvenile or remedy under Section 101 of the
Juvenile Justice (Care and Protection of Children) Act, 2015, (herein after referred to as the 'Act, 2015'), as two divergent views have been expressed
on the issue in question.
For ready reference, the reference made by learned Single Judge, to answer by the Division Bench, is quoted hereunder as:
(i)Whether in view of sub section (5) of Section 101 of the Act, an appeal is maintainable in a case where bail filed by a juvenile under the Act is
rejected by the Children's Court?
(ii)Whether the order dated 11.12.2017, passed by the Coordinate Bench in Cr. Appeal (S.J.) No.2119 of 2017 [Sahabuddin Ansari @ Nannu Ansari
@ Md. Sahabuddin Ansari versus The State of Jharkhand & Another], holding that appeal is not maintainable, is good a law or not?
3. Mr. Mukesh Bihari Lal, learned counsel for the petitioner has submitted that a bail petition for grant of regular bail, being M.C.A. No. 847 of 2020,
was filed on behalf of petitioner, Guddu Kumar Singh, a juvenile, who is languishing in observation home since 08.11.2019 in connection with Baliapur
P.S. Case No. 151 of 2019 corresponding to G.R. Case No. 199 of 2020 registered under Section 302/34 of the Indian Penal Code before the Court of
District & Additional Sessions Judge-1, Dhanbad, which was rejected vide order dated 17.06.2020.
4. Challenging the same, the present bail application under Sections 439 and 440 of the Code of Criminal Procedure has been filed by the petitioner.
5. Learned counsel for the petitioner submitted that since the bail application of the petitioner was rejected by the Sessions Judge, the only remedy
was to file bail application under Sections 439 and 440 of the Code of Criminal Procedure and provision as contained in Section 101 of the Juvenile
Justice (Care and Protection of Children) Act, 2015 will not be applicable.
In support of his submission, he has referred to the judgment rendered in the case of Sahabuddin Ansari @ Nannu Ansari @ Md. Sahabuddin Ansari
versus The State of Jharkhand & Another in Cr. Appeal (S.J.) No.2119 of 2017, wherein it has been hold that "".. in the instant case finding has not
been challenged, rather prayer has been made for bail of the appellant. Prayer of the bail of the appellant lies under regular provisions of law. So, this
criminal appeal is not maintainable in the present form.
6. Mr. Satish Prasad, learned A.P.P. appearing for the State and Mr. Rohit, learned counsel appearing for the informant have jointly submitted that
application under Section 439 of the Code of Criminal Procedure will not be applicable for grant of regular bail rather the provision as contained in
sub-section (5) of Section 101 of the Act, 2015 would be applicable.
7. This Court, having heard learned counsel for parties and in order to answer the issue, deem it fit and proper to travel across the provisions as
contained in Section 101 of the Act, 2015 in entirety.
For ready reference, the same is reproduced hereunder as:
101.(1) Subject to the provisions of this Act, any person aggrieved by an order made by the Committee or the Board under this Act may, within thirty
days from the date of such order, prefer an appeal to the Children's Court, except for decisions by the Committee related to Foster Care and
Sponsorship After Care for which the appeal shall lie with the District Magistrate:
Provided that the Court of Sessions, or the District Magistrate, as the case may be, may entertain the appeal after the expiry of the said period of
thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time and such appeal shall be decided within a
period of thirty days.
(2) An appeal shall lie against an order of the Board passed after making the preliminary assessment into a heinous offence under section 15 of the
Act, before the Court of Sessions and the Court may, while deciding the appeal, take the assistance of experienced psychologists and medical
specialists other than those whose assistance has been obtained by the Board in passing the order under the said section.
(3) No appeal shall lie from,--
(a) any order of acquittal made by the Board in respect of a child alleged to have committed an offence other than the heinous offence by a child who
has completed or is above the age of sixteen years; or
(b) any order made by a Committee in respect of finding that a person is not a child in need of care and protection.
(4) No second appeal shall lie from any order of the Court of Session, passed in appeal under this section.
(5) Any person aggrieved by an order of the Children's Court may file an appeal before the High Court in accordance with the procedure specified in
the Code of Criminal Procedure, 1973.
It is evident from the aforesaid provision that any person aggrieved by an order made by the Committee or the Board under this Act may, within thirty
days from the date of such order, prefer an appeal to the Children's Court, except for decisions by the Committee related to Foster Care and
Sponsorship After Care for which the appeal shall lie with the District Magistrate.
Sub-section (2) thereof makes provision for appeal against the order passed under Section 15 of the Act, 2015, after making preliminary assessment
into the 'henious offence' of a child in conflict with law.
Sub-section (4) thereof says that no second appeal shall lie from any order of the Court of Session, passed in appeal under this Section.
Sub-section (5) of Section 101 provides that person aggrieved by an order of the Children's Court may file an appeal before the High Court in
accordance with the procedure specified in the Code of Criminal Procedure, 1973.
8. It is further evident from the statement of objects and reasons of the Act, 2015 that it has been enacted to ensure that all needs of the children are
met and their basic human rights are fully protected.
For ready reference, the statement of objects and reasons of the Act, 2015 is reproduced hereunder as:
Statement of Objects and Reasons.- Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children.
Articles 39(e) and (f), 45 and 47 further makes the State responsible for ensuring that all needs of children are met and their basic human rights are
protected.
2. The United Nations Convention on the Rights of Children, ratified by India on 11 th December, 1992, requires the State Parties to undertake all
appropriate measures in case of a child alleged as, or accused of, violating any penal law, including (a) treatment of the child in a manner consistent
with the promotion of the child's sense of dignity and worth (b) reinforcing the child's respect for the human rights and fundamental freedoms of others
(c) taking into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
3. The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000 to provide for the protection of children. The Act was amended
twice in 2006 and 2011 to address gaps in its implementation and make the law more child-friendly. During the course of the implementation of the
Act, several issues arose such as increasing incidents of abuse of children in institutions, inadequate facilities, quality of care and rehabilitation
measures in Homes, high pendency of cases, delays in adoption due to faulty and incomplete processing, lack of clarity regarding roles, responsibilities
and accountability of institutions and, inadequate provisions to counter offences against children such as corporal punishment, sale of children for
adoption purposes, etc. have highlighted the need to review the existing law.
4. Further, increasing cases of crimes committed by children in the age group of 16-18 years in recent years makes it evident that the current
provisions and system under the Juvenile Justice (Care and Protection of Children) Act, 2000, are ill equipped to tackle child offenders in this age
group. The data collected by the National Crime Records Bureau establishes that crimes by children in the age group of 16-18 years have increased
especially in certain categories of heinous offences.
5. Numerous changes are required in the existing Juvenile Justice (Care and Protection of Children) Act, 2000 to address the above mentioned issues
and therefore, it is proposed to repeal existing Juvenile Justice (Care and Protection of Children) Act, 2000 and reenact a comprehensive legislation
inter alia to provide for general principles of care and protection of children, procedures in case of children in need of care and protection and children
in conflict with law, rehabilitation and social re- integration measures for such children, adoption of orphan, abandoned and surrendered children, and
offences committed against children. This legislation would thus ensure proper care, protection, development, treatment and social re-integration of
children in difficult circumstance by adopting a child-friendly approach keeping in view the best interest of the child in mind.
6. The notes on clauses explain in detail the various provisions contained in the Bill.
7. This Bill seeks to achieve the above objectives."" Paragraph (1) of statement of objects and reasons confers power upon the State to make special
provision for children. It further makes the State responsible for ensuring that all needs of children are met and their basic human rights are protected.
Paragraph (2) of statement of objects and reasons requires the State to undertake all appropriate measures in case of a child alleged as, or accused of,
violating any penal law, including (a) treatment of the child in a manner consistent with the promotion of the child's sense of dignity and worth; (b)
reinforcing the child's respect for the human rights and fundamental freedoms of others; and (c) taking into account the child's age and the desirability
of promoting the child's reintegration and the child's assuming a constructive role in society. Paragraph (4) of the statement of objects and reasons is
focused towards child in conflict with law in case of 'heinous offences' in the age group of 16-18 years. It states that existing provisions and system
under the Act of 2000 are ill equipped to tackle child offenders in the age group of 16-18 years as the crimes by children in the said age group had
increased especially in certain categories of 'heinous offences'. Paragraph (5) of the statement of objects and reasons while proposing to repeal the
existing Act of 2000 and re-enact a comprehensive legislation inter alia to provide for general principles of care and protection of children, procedures
in case of children in need of care and protection and children in conflict with law, rehabilitation and social reintegration measures for such children,
re-assures the legislative intent to ensure proper care, protection, development, treatment and social re-integration of children in difficult circumstances
by adopting a child friendly approach keeping in mind the best interest of the child.
9. The opening statements of the Act, 2015 contain the reasons and purposes of the Act.
For ready reference, the opening statement of the Act, 2015 is quoted hereunder as:
An Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection
by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in
the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and
bodies established, hereinunder and for matters connected therewith or incidental thereto.
WHEREAS, the provisions of the Constitution confer powers and impose duties, under clause (3) of article 15, clauses (e) and (f) of article 39, article
45 and article 47, on the State to ensure that all the needs of children are met and that their basic human rights are fully protected;
AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the
General Assembly of United Nations, which has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the
child;
AND WHEREAS, it is expedient to re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) to make comprehensive
provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration the standards
prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985
(the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of
Children and Co-operation in Respect of Inter-country Adoption (1993), and other related international instruments.
Section 10 of the Act, 2015 provides that as soon as a child alleged to be in conflict with law is apprehended by the police, such child shall be placed
under the charge of the special juvenile police unit or the designated child welfare police officer. It also provides that the State Government shall make
rules consistent with this Act to provide for persons through whom any child alleged to be in conflict with law may be produced before the Board and
to provide for the manner in which the child alleged to be in conflict with law may be sent to an observation home or place of safety, as the case may
be.
Section 12 of the Act, 2015 provides that the Board is duty bound to be guided by the fundamental principles enumerated in Section 3 of the Act of
2015, specially the principles of 'best interest', 'repatriation' and 'restoration' of child. The fundamental principles in Section 3(xii) of the Act, 2015
provide that a child shall be placed in institutional care as a step of last resort after making a reasonable inquiry.
10. The gravity and nature of the offence are immaterial for consideration of bail under the Act of 2015. The Board is vested with the power to grant
bail to any person, who has not completed the age of 18 years irrespective of the nature of offence being 'bailable' or 'non-bailable' or specified in any
of three categories of the Act, as 'petty offences', 'serious offences' and 'heinous offences'.
11. It is evident from Section 101 of the Act, 2015, that it contains a provision to prefer appeal before the High Court against the order passed by the
committee or Board as under the provision of Section sub-section (5) of Section 101 of the Act, 2015. The purpose of inserting objects and reasons, as
quoted above, is that the Act, 2015 has been enacted exclusively to look into the welfare, proper care, protection, development and treatment of the
child or disposal of the matters in the best interest of the children. It being a special enactment made in favour of the child conflict with the law.
12. It is settled position of law that if such statute has been enacted the general procedure will not be applicable as would appear from the provision,
as contained under Section 4 (2) of the Code of Criminal Procedure.
Section 4(2) of the Code of Criminal Procedure reads hereunder as:
(2)All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to
any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such
offences.
It is evident from the aforesaid provision that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with
according to the same provision, but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into,
trying or otherwise dealing with such offences. If such statute has been enacted to deal with the cases, the provision contained therein will be
applicable. It cannot be disputed that the Act, 2015 has been enacted solely for the purpose of juvenile, which contains provision for bail under Section
12 and appeal under sub- section (5) of Section 101 of the Act, 2015.
13. Therefore, the bail application filed under Section 439 and 440 of the Code of Criminal Procedure, being a general provision, to consider the bail
application, will not be applicable rather against such an order appeal under Section 101 (5) of the Act, 2015 would be maintainable. It is made clear
that the phrase '...in accordance with the procedure specified in the Code of Criminal Procedure' does not mean applicability of Code of Criminal
Procedure rather it only means the procedure, not the substantive Section.
14. In that view of the matter, we answer the issue accordingly.
15. Accordingly, we remit the matter before the learned Single Judge to pass appropriate order, in accordance with law, taking into consideration the
answer of the reference made by this Court.
