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Judgment
O.P. Srivastava, J.—Sri Akhilesh Kumar Tripathi has put in appearance on behalf of complainant Ashwani Kumar Shukla and has filed vakalatnama on his behalf.
Rejoinder-affidavit filed by the applicant is taken on record.
Heard learned Counsel for the applicant and the learned Counsel for the complainant as also learned Additional Government Advocate.
The facts leading to filing of this Criminal Misc. Case, in brief, are as follows:
Complainant Ashwani Kumar Shukla lodged F.I.R. on 29.11.2004 in regard to an incident that had allegedly taken place on the same day. The applicant was named in the F.I.R. as an accused.
The applicant had filed an application before the learned Chief Judicial Magistrate for being declared juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short ''Act''). Learned Chief Judicial Magistrate called report from Chief Medical Officer regarding age of the applicant. However, the application was rejected for want of jurisdiction. The applicant preferred an appeal before the learned Sessions Judge. The appeal was dismissed on the ground of maintainability for the reason the same was not from an order passed by competent authority under the Act. However, learned Additional Sessions Judge before whom the said appeal appeared for hearing, exercising the power u/s 6(2) of the Act declared the applicant a juvenile. On declaration of the applicant as juvenile, the application for bail was moved on behalf of the applicant. The same was rejected by the learned Additional Sessions Judge. Thereafter, present application for bail was filed before this Court.
After going through the order passed on application for bail, I find that learned Additional Sessions Judge while dealing with the matter for bail totally lost sight of Section 12(1) of the Act. It appears that said mistake occurred because of wrong approach on the part of the counsel for the applicant itself as instead of moving application u/s 12(1) of the Act, the application for bail was moved under the provisions of Criminal Procedure Code.
Section 12(1) of the Act dealing with the provision in regard to bail to juvenile, for the ready reference, is extracted herebelow:
Bail of Juvenile.-(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
(2) ...
(3) ...
From the above provision, it is apparently clear that the juvenile is entitled to bail in a criminal case except in the three situations enumerated in Section 12(1) of the Act viz.:
(1) If there appear reasonable grounds, for believing that release is likely to bring the juvenile into association with any known criminal, or
(2) Expose the juvenile to moral, physical or psychological danger, or
(3) Release would defeat the ends of justice.
Whether any of the conditions debarring the grant of bail is made out or not, is also the matter of inquiry and, therefore, the Court before dealing with the matter of bail should afford reasonable opportunity to the parties to bring on record and produce evidence if any to show that any of the conditions prohibiting the grant of bail is made out or not. In case none of the conditions is made out, the Court will have no option except to grant bail in the matter of declared juvenile. The Court is not supposed to go into the gravity of the allegations or the evidence recorded during the investigation.
Sections 52 and 53 of the Act further deal with the situation in which the appeals or revision as the case may be, can be filed. The High Court can exercise the revisional jurisdiction. The same can be done even suo motu also. Section 6(2) of the Act similarly further confers the power on High Court to exercise such power as may be necessary under the Act if matter comes before the Court either in appeal or in revision or even otherwise.
Therefore, in view of Sections 53 and 6(2) of the Act, I am of the view that this application for bail may be disposed of with the direction to the learned Sessions Judge to consider the prayer for bail of the applicant in light of Section 12(1) of the Act and the observations made in the body of this order.
Before parting with this order it may also be noted that while holding any inquiry under any of the provision of this Act, the competent authority has to follow the procedure as prescribed u/s 54 of the Act which lays down that save as otherwise provided by the Act, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) for trials in summons cases has to be followed. Thus, in the matter of inquiry for declaration of a juvenile or for the purpose of Section 12, if any, inquiry is gone into then the procedure u/s 54 of the Act should invariably be followed.
This application for bail is accordingly disposed of with the aforesaid observations.
The applicant will be at liberty to move a fresh application for bail u/s 12 of the Act.