Jharkhand High Court
Guddu Kumar Singh vs The State Of Jharkhand ... Opposite ... on 17 October, 2020
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No. 4677 of 2020
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Guddu Kumar Singh ... Petitioner
-versus-
The State of Jharkhand ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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For the Petitioner : Mr. M.B. Lal, Advocate
For the State: Mr. Satish Prasad, A.P.P.
For the Informant : Mr. Rohit Sinha, Advocate
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6/ 17.10.2020 A question of maintainability has been raised in this bail
application.
2. This bail application has been filed by the petitioner under Section 439 and 440 of the Code of Criminal Procedure, praying for regular bail. The petitioner is a juvenile. His prayer for bail was rejected by the Children's Court, i.e., the Court of First Additional Sessions Judge, Dhanbad, constituted in terms of Section 18(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 [hereinafter referred to as the Act].
3. The petitioner is facing trial for an offence punishable under Sections 302/34 of the Indian Penal Code and is aged about 17 years. He was declared a juvenile. As he was found above 16 years of age at the time of occurrence, vide order dated 11.02.2020, the case was transferred to the Children's Court. The Children's Court dismissed the bail application of this petitioner.
4. Now, a question arose as to whether the bail application under Section 439 and 440 of the Code of Criminal Procedure would be maintainable before this Court or an appeal in terms of Section 101 of the Act would be maintainable.
5. As mentioned earlier, this application has been filed under Section 439 and 440 of the Code of Criminal Procedure.
6. Counsel for the petitioner, in support, submits that since his bail application was dismissed by the Sessions Judge, the remedy would be to file a bail application under Sections 439 and 440 of the Code of Criminal 2 Procedure and Section 101 of the Act is not applicable. In support of his contention, learned counsel for the petitioner placed before this Court an order dated 11.12.2017 passed by a Coordinate Bench of this Court in Cr. Appeal (S.J.) No.2119 of 2017. In Cr. Appeal (S.J.) No.2119 of 2017 [Sahabuddin Ansari @ Nannu Ansari @ Md. Sahabuddin Ansari versus The State of Jharkhand & Another], the Coordinate Bench of this Court has held that Section 101 of the Act only provides for appeal in respect of the orders confined to provisions of Section 15 of the Act under which the Board has been empowered to hold preliminary assessment regarding mental and physical ability of the child, who has committed the offence. The Court further concluded that in case of prayer for bail, criminal appeal is not maintainable. It is necessary to quote the findings of the Coordinate Bench, which reads as under :-
"Prima facie, it appears that appeal under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015 only provides about the orders confined to provisions of Section 15 of the Act under which the Board has been empowered to hold preliminary assessment regarding mental and physical capacity of the child alleged to have committed an offence, but in the instance 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."
7. Before proceeding further, it needs to be mentioned that since the question was already decided by the Coordinate Bench in the above criminal appeal and appeal was converted in bail application, in the bail application, the prayer for bail was rejected by this Court, without reopening the maintainability issue.
8. After going through the order dated 11.12.2017, am not in agreement with the aforesaid conclusion arrived at by the Coordinate Bench, mainly on the following grounds: -
(i) Section 101 of the Act provides for filing an appeal. Appeal is a creature of statute and can be invoked only against those orders, which are made appealable by the statute.3
(ii) Now, it has to be seen as to what is the appellate power granted in Section 101 of the Act.
(iii) The first sub section provides that if a person is aggrieved by an order made by the Committee or 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.
This provision is not applicable in the instant case.
(iv) Sub section (2) of the Act is the provision, which has been relied upon by the Coordinate Bench while holding that against the rejection of prayer for bail, appeal is not maintainable. According to this Court, the sub section (2) of Section 101 of the Act provides for an appeal against an order under Section 15 of the Act.
(v) Now, if Section 15 of the Act is read, it is seen that it deals with preliminary assessment into a heinous offence by the Board. Said section provides that in case of heinous offence committed by a child, who has completed 16 years or is above 16 years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18.
(vi) Sub section (2) of Section 101 of the Act provides that 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 4 obtained by the Board in passing the order under the said section.
(vii) Thus, prima facie, this Court feels that if any order has been passed under Section 15 of the Act, the same is appealable in terms of Section 101(2) of the Act.
(viii) Sub Section (3) of Section 101 of the Act provides for cases where no appeal shall lie. This sub section is quite clear and does not prohibit filing an appeal where the bail is rejected.
(ix) Sub section (4) of Section 101 of the Act bars second appeal.
(x) According to this Court, the important provision, which is applicable in this case, is sub section (5) of Section 101 of the Act, which reads as under: -
101. Appeals (1) ............
(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 (2 of 1974).
(xi) This provision in sub section (5) of Section 101 of the Act provides for filing an appeal before the High Court against an order of the Children's Court. Sub section 101(2) of the Act, which has been relied upon by the Coordinate Bench, gives power to file an appeal against the order of the Board and that too against a specific type of order, but, sub section (5) of Section 101 of the Act gives the power to file appeal against an order of the Children's Court. It does not limits or restricts to a particular nature of order passed by the Children's Court. Order of rejection of bail by exercising powers under the Act, according to this Court's view, will be governed by this sub section (5) of Section 101 of the Act. Sub section (5) of Section 101 of the Act does not restrict filing of appeal to any particular type or nature of order, 5 rather, an aggrieved person can file an appeal against any order passed by the Children's Court.
(xii) Further section 101(2) is in relation to an order passed by the Board and section 101(5) of the Act is in relation to Children's Court. Both these functionaries are different and so is the appellate provision under the Act.
(xiii) This provision of sub section (5) of Section 101 of the Act has not been taken note of by the Coordinate Bench while holding that the order dismissing the bail by the Children's Court is not appealable.
9. In view of what has been expressed above, I feel that there emerges a divergent view on the question and interpretation of law, especially sub section (5) of Section 101 of the Act needs interpretation as the Coordinate Bench has not considered the same.
10. Since there is divergent view, which I am expressing, this issue needs to be heard and decided by a Division Bench. Accordingly, this matter is referred to the Division Bench on the question (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? and (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?
11. Keeping in view that this is a bail application, and as the petitioner is in custody and without the decision on the aforesaid question, the matter cannot proceed, I direct the Registrar General of this Court to immediately place this matter before Hon'ble the Chief Justice.
(Ananda Sen, J.) Kumar/Cp-03