Full Judgment
S.K. Chattopadhyaya, J.
1. Heard Mr. B.B. Sinha for the petitioner and Mrs. Sheela Prasad for the State.
In this revision petition the petitioner has impugned the order dated 20.12.1997 by reason of which the learned Sessions Judge while agreeing with the order of the Chief Judicial Magistrate dated 23.10.1997, has refused to release the petitioner on bail.
2. Some undisputed facts are that the petitioner who is an accused for offence under Sections 302/34 of the Penal Code moved several bail applications repeatedly, before regular criminal Court and, thereafter, upto the High Court but without any success. All those bail applications were filed under the provisions of the Code of Criminal Procedure (shortly Cr PC) and taking into consideration the allegation made against the petitioner, his prayer for bail was refused.
3. However, when the Medical Board found that the petitioner is a juvenile as he appears to be below 16 years of age, he moved the learned Court below for grant of bail under Section 18 of the Juvenile Justice Act, 1986. Being unsuccessful there, the petitioner appealed against the said order dated 23.10.1997, but unfortunately the appellate Court also refused the prayer for bail mainly taking into consideration the fact that the petitioner earlier moved the lower Court as well as the High Court under the provisions of Cr. P.C. and on all account his prayer for bail was refused.
4.Mr. Sinha contended that both the Courts below have failed to appreciate that for consideration of bail of a Juvenile under Section 18 of the Act, it was not necessary for the Courts to see as to whether is previous bail applications filed under Section 439, Cr. PC were rejected. According to him, the petitioner on some wrong advice, instead of filing a bail application under Section 18 of the Act, moved the Court below under the provisions of Cr PC and, as such, when he was advised to file an application under Section 18 of the act, he ought to have been released on bail irrespective of the nature of the offence alleged to have been committed by him. In support of his contention learned Counsel has relied on a decision of the Rajasthan High Court in the case of Mata alias Manohar Singh v. State of Rajasthan reported in 1996 Cr LJ 743.
5. Mrs. Sheela Prasad, learned A.P.P. has very fairly submitted that there is no contrary decision either of the Apex Court or of this Court which has taken a different view than that of the Rajasthan High Court.
6. The allegation against the petitioner is that he gave dagger blow to one Bijoy, who succumbed to his injuries subsequently. It appears from Annexure-2 that on 16.6.1997 the age of the petitioner was determined by the Medical Board consisting of four doctors to be in the range of 14 to 16 years.
7. Section 18 of the Act, is in Chapter IV which deals with the delinquent juvenile. It reads as follows:
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 Juvenile Court, such person shali, notwithstanding anything contained in the Code of Criminal Procedures 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 appears reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice.
8. From a bare perusal of the aforesaid Section, it appears that bail to a delinquent offender is a rule and mandate of the Act, to grant bail irrespective of nature and seriousness of the offence committed by him. Section further provides the grounds and circumstance when bail can be declined to a juvenile delinquent which are, that release is likely to bring him into association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice.
9. From the aforesaid provision it is abundantly clear that the intention of the Legislature is that whatever may the allegation against a juvenile delinquent, he can be granted bail and if his prayer of bail is refused, the aforesaid grounds must be taken into consideration. Same view has been expressed by the Rajasthan High Court in the aforesaid decision (supra).
10. In the case of Mohd. Dahaur Mia v. State of Bihar reported in 1995 (1) East Cr. C. 436, this Court has held that in case of juvenile his bail petition has to be considered only under the Juvenile Justice Act, and the petition under Section 439, Cr PC would not be maintainable.
11. Under these circumstances, there is no doubt that both the Courts below have failed to appreciate the distinguishing feature of the provisions of Section 18 of the Act. Even assuming that the prayer of the petitioner for bail was earlier rejected even by this Court but admittedly, those applications were filed under Section 439, Cr PC and not under Section 18 of the Act. Therefore, in my view, rejection of the petitioner's prayer for bail earlier on merits by this Court cannot be a ground for the Courts below to refuse bail to the petitioner under Section 18 of the Act. As noticed above, if a Juvenile Court refused to grant bail to such person under Section 18 of the Act, he must apply his mind to the aforesaid grounds for passing his order. From the impugned order, I find that no such consideration has been made by the appellate Court and, therefore, it is not sustainable in law.
12.In the result, the order dated 20.12.1997 passed by the appellate Court as well as the order dated 23.10.1997 passed by the Chief Judicial Magistrate are hereby quashed and the matter is remitted to the Court below (appellate Court) with a direction that he will hear the petitioner's counsel afresh and will be satisfied with the grounds for refusing to release the petitioner on bail. It is made clear that after due enquiry in accordance with law if the appellate Court finds that the grounds mentioned under Section 18 of the Act, for refusing bail to a juvenile delinquent is not applicable to the petitioner, he will order release of the petitioner forthwith. It is needless to say that final order must be passed by the appellate Court after holding such enquiry, if necessary, within two weeks from the date of receipt/production of a copy of this order.