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Himachal Pradesh High Court · body

2002 DIGILAW 62 (HP)

MUHEBBAR v. STATE OF H. P.

2002-03-19

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J. - This petition under Sections 439 and 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) has been filed by the petitioner praying for grant of bail with further prayer .to direct the respondent-State to constitute Juvenile Justice Board as provided under the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act). 2. Brief facts leading to the presentation of this petition are that the petitioner was tried by the learned Additional Sessions Judge, Dharamshala for an offence under Section 376 I.P.C. At the time the petitioner was above 16 years of age but below 20 years of age. 3. In between the Act came into force on 1.4.2001, therefore, while convicting the. petitioner under Section 376 I.P.C. the learned Additional Sessions Judge, pursuant to the provisions of Section 20 of the Act, forwarded the petitioner to the Juvenile Justice Board for passing further orders in accordance with the provisions of the Act vide his order dated 29.11.2001. However, at the material time the Juvenile Justice Board had not been constituted nor has been constituted as yet. Therefore, the petitioner is waiting orders to be passed by the said Board as and when it is constituted. It is in these circumstances that the present petition has been filed. 4. I have heard the learned Counsel for the petitioner and the learned Assistant Advocate General for the State. 5. It may be pointed out at the very outset that before conclusion of the trial an accused person can be released on bail under the provisions of Sections 436, 437 and 439 of the Code. However, where a person after trial has been convicted of the commission of an offence none of these provisions enables the Court to direct release of such a person on bail. However, Court may grant bail to a convict in exercise of the powers under Section 389 of the Code. 6. However, where a person after trial has been convicted of the commission of an offence none of these provisions enables the Court to direct release of such a person on bail. However, Court may grant bail to a convict in exercise of the powers under Section 389 of the Code. 6. To exercise powers to grant bail to a convict person under Section 389 of the Code either of the two conditions must be satisfied i.e. either an appeal by the convict person against his conviction must be pending and the appointing Court or the High Court may for reasons to be recorded in writing suspend the execution of the sentence or order appealed against and if the convict is in confinement direct his release on bail, or on being satisfied that the accused intends to present an appeal, the Court convicting the accused may direct the release of the convict on-bail till the convict obtains orders of the appointing Court, as contemplated under sub-Section (1) of the said Section. The case of the petitioner does not satisfy either of the, aforesaid conditions, therefore, he cannot be granted bail even in i exercise of the powers under Section 389 of the Act. 7. Bail in a case of conviction cannot be granted by the Court in exercise of its inherent powers as the Code has complete scheme for grant of bail to an accused/convict at different stages. Thus, in the, given circumstances of the case, the petitioner cannot be ordered to be released on bail either in exercise of the powers under Section 439 or Section 482 of the Code. 8. It cannot, however, be overlooked that the petitioner having been convicted on 23.11.2001 is awaiting the orders to be passed as a consequence of his conviction. Such orders can be passed only by the Juvenile Justice Board which is non-existent. However, the remedy to get directions from the High Court for constitution of such a Board is not under Section 482 of the Code. If so advised the petitioner may seek such a relief under Article 226 of the Constitution of India. Thus, the prayer for issuing the directions to the State in exercise of the inherent powers of the Court to constitute a Juvenile Justice Board can also not be allowed in this petition. 9. If so advised the petitioner may seek such a relief under Article 226 of the Constitution of India. Thus, the prayer for issuing the directions to the State in exercise of the inherent powers of the Court to constitute a Juvenile Justice Board can also not be allowed in this petition. 9. It has been submitted by the learned Assistant Advocate General that as per the instructions received by him the Juvenile Justice Board is likely to be constituted within a month. It is, therefore, hoped that the State Government will constitute the said Board as expeditiously as possible and preferably within a month: 10. The learned Counsel for the petitioner has submitted that the petitioner is being detained by the police in the police lock up in the Police Station. If it is so, it is evidently contrary to the letter and spirit of laws meant for dealing with the juveniles. The concerned authorities will ensure that the petitioner is detained in a Special Home. This should be done forthwith. 11. With the aforesaid observations, the present petition is dismissed. Copy Dasti.