Allahabad High Court
Udayveer vs State Of U.P. on 26 July, 2017
Bench: Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 51
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25134 of 2017
Applicant :- Udayveer
Opposite Party :- State Of U.P.
Counsel for Applicant :- Brij Bhushan Upadhyay
Counsel for Opposite Party :- G.A.
Hon'ble Pratyush Kumar,J.
Parcha and supplementary affidavit filed by Sri J.P.Singh, Advocate, on behalf of applicant, are taken on record.
Heard Sri J.P.Singh, Advocate, learned counsel appearing for the applicant and learned Additional Government Advocate on behalf of the State.
This bail application has been preferred by the accused-applicant, Udayveer, who is involved in Case Crime No. 233 of 2016, under Sections 498A, 304B I.P.C.& 3/4 Dowry Prohibition Act, P.S.- Faizganj Behta, District-Badaun.
This is an application for bail moved under section 439 Cr.P.C. on behalf of the applicant who has been declared juvenile by Juvenile Justice Board vide order dated 5th January, 2017 whereby holding him to be aged 17 years four months 27 days from the date of occurrence. The applicant is an accused under sections 498-A, 304-B I.P.C. and 3/4 Dowry Prohibition Act. By the same order preliminary assessment report was called from the specialist, thereafter, on 21st January, 2017 applicant was found to be person of understanding the gravity of offences and their consequences. Under section 18(3) of Juvenile Justice Act, 2015, his case was sent for trial to Children's Court.
Since in district Badaun, Children Court has not been established as yet, therefore, under the provisions contained in Section 2(20) his case was sent for trial to Special Court established under the provisions of POSCO Act.
On 12th April, 2017, bail application moved on behalf of the applicant was rejected by the Additional Sessions Judge, Court No.10, Badaun, who has taken into consideration all the legal proceedings narrated above has rejected the bail application.
Now the question is whether bail prayer of juvenile can be considered by this Court under section 439 Cr.P.C. or his prayer should be considered in accordance with the provisions contained in Juvenile Justice Act, 2015.
Section 12 of the Juvenile Justice Act, 2015 provides for grant of bail to juvenile. Section 101 provides remedy of appeal against an order made by Child Welfare Committee or Juvenile Justice Board to be filed before the Children's Court with an exception in reference to foster care and second exception an order passed under section 15 of the Act. Section 101 sub-section (1) further provides that any person aggrieved by any order of the Children's Court may file an appeal before the High Court in accordance with procedure specified in Code of Criminal Procedure.
In view of provisions contained in Section 2(20) of the Juvenile Justice Act, 2015, Special Court POSCO Act may be taken as Children's Court. Had the prayer for bail of the present applicant had been declined by Juvenile Justice Board and Special Judge POSCO Act, clearly applicant would have a right to file an appeal before this Court under section 101 (5) of the Juvenile Justice Act, 2015. However, in the present matter, bail application of the applicant was considered by the Additional Sessions Judge exercising the power of Sessions Judge under section 439 Cr.P.C. but it is noticeable that the learned court below has considered the bail prayer of the applicant in the light of provisions contained in Section 12 of the Juvenile Justice Act, 2015.
It will be relevant to mention here that Court of Session Badaun has jurisdiction to hear appeal against an order of Juvenile Justice Board passed after making preliminary assessment about an heinous offence under section 15 of the Act. In this appeal, only the question of nature of an offence is heinous or not can be seen, except that the order of Juvenile Justice Board could not be assailed before the Court of Session.
In order of assess the maintainability of the present application, I have gone through the papers and supplementary affidavit. I do not find rejection of bail prayer of the present applicant by Juvenile Justice Board Badaun and further I do not find rejection of bail prayer of the applicant by Special Judge, POSCO exercising jurisdiction under section 2(20) of the Juvenile Justice Act in reference to prayer for bail to the applicant.
Thus, in my opinion, on behalf of the applicant appropriate remedy has not been pursued, hence, the present bail application in its present form is not maintainable. Hence, it is disposed of with liberty to the applicant to seek appropriate remedy before the appropriate forum.
Order Date :- 26.7.2017
SKD
