Jharkhand High Court

Guddu Kumar Singh vs The State Of Jharkhand on 12 May, 2021

                                1

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
            B.A. No. 4677 of 2020
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Guddu Kumar Singh, aged about 17 years through natural guardian father of the petitioner Sri Rajesh Singh, aged about 38 years, S/o Amulay Prasad Singh, R/o village - Golmara, P.O + P.S. - Baliapur, District - Dhanbad.

                                                 ..      Petitioner
                           Versus
The State of Jharkhand          ...   ...      ...            Opp. Party
                         ----
 CORAM: HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Mukesh Bihari Lal, Advocate.

For the State        : Mr. Satish Prasad, A.P.P.
For the Informant    : Mr. Rohit, Advocate
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 .
C.A.V. on 26.11.2020         Pronounced on 12/05/2021
Per Sujit Narayan Prasad, J:

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