Research › Search › Judgment

Chhattisgarh High Court · body

2005 DIGILAW 86 (CHH)

MOHAN v. STATE OF CHHATTISGARH

2005-03-09

V.K.SHRIVASTAVA

body2005
( 1 ) HEARD. ( 2 ) THE petitioner-Mohan, aged about 17 years, was found in possession of 34 liters and 507 milliliters of illicit liquor. The liquor was seized from him, and he was arrested for committing the offence under S. 34 (l) (a)of the Excise Act. The petitioner filed an application under S. 12 of the Juvenile Justice (Care and Protection of the Children)Act, 2000 (henceforth the Act') for grant of bail. The Juvenile Justice Board rejected his application vide order dated 5-1-2005. Disgruntled with the said order, he preferred an appeal under S. 52 of the Act before Sessions Judge, Raipur. Learned Sessions judge, Raipur, after hearing both the parties, maintained the finding of the Juvenile justice Board to the effect that there is reason to believe that the petitioner may come into association with criminals connected with the crime for which the petitioner was arrested and his release would defeat the ends of justice, and accordingly dismissed his Criminal Appeal No. 16/2005 vide order dated 18-1-2005. ( 3 ) THE petitioner, instead of filing revision, applied under S. 439 of the Code of criminal Procedure before this Court for releasing him on bail. During the pendency of the application, the petitioner, relying on the decision rendered in Hardip Singh v. State of Punjab, reported in 2002 (2) Crimes 179, filed LA. No. 510/2005 for converting the bail application into revision. ( 4 ) FOR deciding the petitioner's application filed for converting the bail application into revision, following legal points are required to be decided :-1. Whether the Act takes away the power and jurisdiction of High Court or Court of session regarding bail under Ss. 438 and 439 of the Code of Criminal Procedure. 2. Whether the bail application filed under S. 439 of the Code of Criminal Procedure can be converted into revision at the instance of the petitioner. ( 5 ) ACCORDING to S. 4 of the Act, a duly constituted Juvenile Justice Board shall have the powers conferred by the Code of criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a judicial Magistrate First Class. Section 12 (1)of the Act confers special powers to Juvenile Justice Board to grant bail to juvenile who is accused of a bailable or non-bailable offence. For appreciation of the matter, S. 12 (1) of the Act is reproduced below :-"12. Section 12 (1)of the Act confers special powers to Juvenile Justice Board to grant bail to juvenile who is accused of a bailable or non-bailable offence. For appreciation of the matter, S. 12 (1) of the Act is reproduced below :-"12. 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, notwith-standing 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. " ( 6 ) IT is manifest that, the above provision provides certain specific conditions for consideration for releasing the juvenile who is accused of a bailable or non-bailable offence, and the said special authorisation begins with "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force. " The said non obstante clause is appended herein with a view to give the enacting part of the section in case of conflict an overriding effect over the provisions of the Code of Criminal procedure applicable to the case. The said non obstante clause does not take away the various provisions of bail, but only removes various barriers, and authorises that, in spite of the various barriers, the conditions, enumerated under S. 12 of the Act, shall prevail while considering the matter of granting or refusing bail to juvenile, accused of a bailable or non-bailable offence. ( 7 ) JUVENILE Justice Board has been conferred with the powers of a Metropolitan magistrate or, as the case may be, a Judicial Magistrate First Class. Therefore, the non obstante clause, contained in S. 12 of the Act, has overriding effect against those provisions, which empowers Judicial Magistrate First Class or Metropolitan Magistrate to decide the matter of bail, and those relevant provisions are Ss. 436 and 437 of the code of Criminal Procedure. Therefore, although certain barriers and limitations have been imposed under Ss. Therefore, the non obstante clause, contained in S. 12 of the Act, has overriding effect against those provisions, which empowers Judicial Magistrate First Class or Metropolitan Magistrate to decide the matter of bail, and those relevant provisions are Ss. 436 and 437 of the code of Criminal Procedure. Therefore, although certain barriers and limitations have been imposed under Ss. 436 and 437 of the code of Criminal Procedure for releasing the person arrested or detained or appears or is brought before a Court, yet Juvenile Justice Board, if conditions mentioned under s. 12 of the Act are fulfilled, has power to release the juvenile on bail. ( 8 ) SECTION 438 of the Code of Criminal procedure empowers High Court of Session for issuing directions to release the person, against whom there is accusation of having committed a non-bailable offence, on bail in the event of arrest. Section 439 of the Code of Criminal Procedure confers special powers on High Court or Court of session regarding bail. Juvenile Justice Board has not been conferred with any power for issuing directions in accordance with S. 438 of the code of Criminal Procedure nor has been conferred special powers as enumerated under S. 439 of the Code of Criminal Procedure. Therefore, the non obstante clause, contained in S. 12 of the Act, does not erode the provisions of Ss. 438 and 439 of the Code of Criminal Procedure. ( 9 ) IF a juvenile, accused of a bailable or non-bailable offence, has been refused bail by the Juvenile Justice Board, the person aggrieved has right to file an appeal under s. 52 of the Act within 30 days from the date of such order or after the expiry of the said period if prevented by sufficient cause to prefer an appeal within time, to the Court of session, and in case the appeal fails, can file revision against the appellate order before the High Court in accordance with S. 53 of the Act. Section 54 of the Act prescribes the procedure for appeals and revisions, arid according to that, as far as practicable, the procedures prescribed in the Code of Criminal Procedure, 1973 are to be followed. Section 54 of the Act prescribes the procedure for appeals and revisions, arid according to that, as far as practicable, the procedures prescribed in the Code of Criminal Procedure, 1973 are to be followed. ( 10 ) PERIOD has been fixed for filing appeal and revision, and in case, appeal or revision is not acceptable because of lapse of period of limitation, then, if harmonious interpretation is not made, a juvenile, who has been refused bail by the Juvenile Justice Board, shall become helpless. ( 11 ) SECTION 6 (2) of the Act empowers High court and Court of Session to exercise all the powers conferred on the Board by or under this Act when the proceeding comes before them in appeal, revision or "otherwise. " The word "otherwise" has a wide edifice and it includes the proceedings under ss. 438 and 439 of the Code of Criminal procedure. After considering all aspects, I am of the view that, the said non obstante clause only has overriding effect over Ss. 436 and 437 of the Code of Criminal Procedure. A juvenile accused of a non-bailable offence, can approach for remedy available under S. 438 of the Code of Criminal Procedure. The juvenile, accused of a bailable or non-bailable offence, under custody, after exhausting the remedy available under S. 12 of the act, has option to file application for grant of bail under S. 439 of the Code of Criminal procedure. The High Court or the Court of session can exercise not only the powers contained in Ss. 438 and 439 of the Code of criminal Procedure but also the powers conferred on the Juvenile Justice Board being empowered under S. 6 (2) of the Act. ( 12 ) SECTION 53 of the Act empowers High court to examine legality or propriety of any order on its own motion or on an applica-tion preferred by the aggrieved party, and according to S. 54 of the Act, a revision can be filed following the procedure laid down in the Code of Criminal Procedure. ( 13 ) THE petitioner has filed application for converting the bail application into revision. ( 13 ) THE petitioner has filed application for converting the bail application into revision. If any person, aggrieved by any order, files revision, it is necessary that, the same should be filed within period of limitation and the same should contain the description of the impugned order and the ground on which its legality or property has been assailed, All these ingredients are not required in a petition filed under S. 439 of the code of Criminal Procedure. The petitioner has placed reliance on the decision rendered in Hardip Singh v. State of Punjab (2002 (2)Crimes 179) (supra ). On facts, the ease is distinguishable. In the application, filed for grant of bail under S. 439 of the Code of criminal Procedure, all the aforesaid ingredients are lacking. Apart from that, neither the Act nor the Code of Criminal Procedure authorises for converting any bail application into revision. ( 14 ) FROM the aforesaid discussions, it is held that the Act does not take away the power and jurisdiction of High Court or court of Session regarding bail as provided under Ss. 438 and 439 of the Code of Criminal Procedure. It is further held that the bail application filed under S. 439 of the Code of criminal Procedure cannot be converted into revision. ( 15 ) THE petitioner has right either to file properly drafted revision-petition within the period of limitation in accordance with law before the High Court or can apply for grant of bail under S. 439 of the Code of Criminal procedure to the Court of Session, and in case of refusal, the petitioner can apply for grant of bail before this Court under S. 439 of the Code of Criminal Procedure. ( 16 ) WITH the aforesaid observations, I. A. No. 510/2005, preferred for converting the m. Cr. C. into revision, as well as the M. Cr. C. i. e. the application for grant of bail filed under S. 439 of the Code of Criminal Procedure are disposed of. Certified copy as per rules. Order accordingly. --- *** ---