Jharkhand High Court
Sunny Kumar @ Sunny vs The State Of Jharkhand ... Opposite ... on 26 November, 2020
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No.8849 of 2020
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Sunny Kumar @ Sunny ... Petitioner
Versus
The State of Jharkhand ... Opposite Party
Coram: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
For the Petitioner : Mr. Kripa S. Nanda, Adv.
For the State : Mr. Arup Kr. Dey, Addl. P.P.
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02 /26.11.2020 Heard the parties through video conferencing.
The petitioner has been made accused in connection with Special Children Case No.03 of 2019 arising out of Chandwara P.S. Case No.40 of 2019 registered under Sections 366 A, 376, 34 of the Indian Penal Code and Section 4, 8, 12 of POCSO Act.
A preliminary objection has been pointed out by the stamp reporter that in view of Section 101 (5) of the Juvenile Justice (Care and Protection of Children) Act of 2015, since the prayer for bail of the petitioner has been rejected by the Special Children Court, hence, an appeal will lie and this application under Section 439 of the Code of Criminal Procedure is not maintainable.
Section 101 (5) of the Juvenile Justice (Care and Protection of Children) Act of 2015 reads as under
101. (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."
Perusal of Section 101 (5) of the Juvenile Justice (Care and Protection of Children) Act of 2015 reveals that the same envisages that any person aggrieved by any order of the Children's Court may file the appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure.
The issue as to whether an appeal under Section 101(5) of the Juvenile Justice (Care and Protection of Children) Act of 2015 or an application under Section 439 of the Code of Criminal Procedure, would be maintainable before the High Court by any person aggrieved by the order granting or rejecting bail by the Childrens' Court was considered by the Division Bench of Hon'ble Patna High Court in the case of Lalu Kumar Vs. State of Bihar reported in 2019 SCC OnLine Pat 1697. The relevant question (v) framed in this respect has been answered in paragraph-178 by the Hon'ble Patna High Court as under:-
Q. (v). "Whether an appeal under Section 101(5) of the Act of 2015 or an application under Section 439 of the CrPC would be maintainable before the High Court by any person aggrieved by the order granting or rejecting bail by the Childrens' Court?
A. Against an order granting or refusing bail passed by the Childrens' Court, no application for bail or cancellation of bail under Section 439(1) or 439(2) of the CrPC shall lie before the High Court and against such an order only an appeal under Section 101(5) of the Act of 2015 would be maintainable. The 'phrase' "in accordance with the procedure specified in the Code of Criminal Procedure" does not allude to application of the entire CrPC to the Act of 2015. The said reference to the CrPC in Section 101(5) of the Act of 2015 only means that the procedure, and not the substantive Sections, prescribed under Chapter XXIX shall apply to the appeal that could be filed under the said Section. To clarify further, the appeal, in terms of Section 101(5) has to be considered on the basis of material available on the record, i.e., material produced before the Board under Section 13 of the Act of 2015 and considerations arrived at in terms of Section 12 of the Act of 2015 for the purpose of grant of bail and not the considerations of grant of bail in terms of Sections 437, 438 and 439 of the CrPC. The reference in Section 101(5) to "procedure specified in the Code of Criminal Procedure" does not enlarge the scope of sub-sections to create a substantive right in terms of Section 439 of the CrPC in Section 101(5) of the Act of 2015."
This Court is in agreement with the view expressed by the Hon'ble Division Bench of the Patna High Court.
Accordingly, this Court finds merit in the objection raised by the stamp reporter. This application under Section 439 of the Code of Criminal Procedure is dismissed being not maintainable.
The petitioner may file appropriate appeal if so advised.
Animesh// (Anil Kumar Choudhary, J.)