Bombay HC: Whether child in conflict with law is not entitled to be released on bail as per S 12 of Juvenile justice Act if he is tried as adult?

 In the aforesaid circumstances, when the Children’s

Court has rejected his application, without adverting to the

said facts and also the statutory mandate of Section 12, is an

unfortunate part. Merely because, he is directed to be tried as

an adult, he cannot be denied the beneft of Section 12. I am

fortified by the earlier view taken by this Court in the case of

Sandeep Ayodhya Prasad Rajak (Bail Application No.3838 of

2021 decided on 22/08/2022) and also in the case of Prasad

Subhash Khade Vs. State of Maharashta (Bail Application

No.1647 of 2020 decided on 18/03/2021).{Para15}

16. In any case, the J.J.Act focuses on a principle of

presumption of innocence and on the principle of best interest

as well as principle of repatriation and restoration, by virtue of

which, the applicant, who is a juvenile, has a right to be reunited with his family at the earliest and to be restored to the

same socio-economic and cultural status that he was in, before

coming under the purview of this Act, unless such restoration

and repatriation is not in his best interest. 

 IN THE HIGH COURT OF BOMBAY

BAIL APPLICATION NO.2282 OF 2021

Date of Order: 21.10.2022

Shubham @ Bablu Milind Vs. The State Of Maharashtra

Hon'ble Judges/Coram:

Bharati Dangre, J.

Citation: MANU/MHOR/142201/2022,2022:BHC-AS:26901

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Uttarakhand HC Rules: Bail Applications Under Section 12 of Juvenile Justice Act to be Considered Even if Child Transferred for Adult Trial

 Even if a CIL is transferred for trial as an adult under Section 18(3) of the Act, his bail application shall be entertained under Section 12 of the Act. This view has been consistently discussed and followed in various judgments of various High Courts. In the case of Ccl A vs. State Nct of Delhi, MANU/DE/1914/2020 : (2020) 10 DEL CK 0155, the Hon'ble Delhi High Court has categorically held that, "even when a child is sent-up for trial as an adult before a Children's Court, the child does not become an adult or 'major', but is only to be treated differently considering the heinous nature of the offence alleged and consequent need for a stricter treatment of the offender, though still as a juvenile in conflict with law." The Hon'ble Delhi High Court further observed that, "even though a child may be sent-up for trial before the Children's Court as an adult, there is no provision in the JJ Act that requires any departure from considering the matter of release of such child on bail under section 12." Similar views have been expressed in the cases of Siddalinga SN Vs. State of Karnataka MANU/KA/0774/2023 : 2023:KHC(BB):9534, and Shubham Alias Bablu Milind Vs. State of Maharashtra, MANU/MHOR/142201/2022. {Para 10}

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Bail Application No. 273 of 2024

Decided On: 11.06.2024

X Vs. State of Uttarakhand

Hon'ble Judges/Coram:

Ravindra Maithani, J.

Citation:  MANU/UC/0195/2024.

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Understanding the Applicability of the POCSO Act: Can a Child Be Prosecuted Under POCSO Act?

 The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a landmark legislation in India, designed to safeguard children from sexual abuse and exploitation. While the Act is primarily focused on protecting children as victims, questions often arise regarding its applicability and whether a child can be prosecuted under its provisions. This article explores these aspects in detail.

Who Does the POCSO Act Apply To?

The POCSO Act is a gender-neutral law that applies to:

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Whether Child In Conflict With Law(Juvenile) Can Seek Anticipatory Bail U/S 438 CrPC?

  Section 5 of the Cr.P.C. is also relevant in this context,

which reads thus:

“5. Saving.– Nothing contained in this Code

shall, in the absence of a specific provision to the

contrary, affect any special or local law for the time

being in force, or any special jurisdiction or power

conferred, or any special form of procedure

prescribed, by any other law for the time being in

force.”

This section makes it very clear that the Cr.P.C.

shall not affect any special form of procedure prescribed by any

other law for the time being in force. If the JJ Act was to provide for procedure in the nature of Section 438 of the Cr.P.C., that procedure would have overridden the Cr.P.C. But if no special form of procedure is prescribed in the nature of Section 438 of the Cr.P.C., then the provisions of the Cr.P.C. shall operate. Only when there is a special procedure, which is departure from the procedure laid down in the Cr.P.C. for a particular remedy, then only the special procedure would operate to the exclusion of the Cr.P.C. But in the JJ Act there is no special provision, which could operate in the field of Section 438 of the Cr.P.C. and therefore, the provisions of Section 438 of the Cr.P.C. can operate in case of child in conflict with law. {Para 29}

30 As is provided under Section 8 (2) of the JJ Act, the High

Court and the Children’s Court can exercise the same powers, which

can be exercised by the Board. These powers can be exercised in

appeal, revision or otherwise. The proceedings under Section 438 of

the Cr.P.C. are covered under these powers. Because these powers

are also available besides proceedings of appeal or revision.

Therefore, when deciding the anticipatory bail application, the High Court or the Sessions Court will have to give due importance to the considerations mentioned in the proviso to sub-Section (1) of Section 12 of the JJ Act. However, that proviso does not make the Section 438 of the Cr.P.C. inconsistent with Sections 10 and 12 of the JJ Act. The inconsistency between Cr.P.C. and these two provisions is in respect of Sections 167 and 437 of the Cr.P.C. mainly because the child will have to be produced before the Board and not before any other Court. In those cases, the special procedure provided under Sections 10 and 12 of the JJ Act will have to be followed. But Section 438 of the Cr.P.C. is enacted for a different purpose as discussed earlier and there is no inconsistency.

32 Based on this discussion, we answer the reference as

under:

“A ‘child’ and a “child in conflict with law” as defined

under the Juvenile Justice (Care and Protection of

Children) Act, 2015 can file an application under

Section 438 of the Code of Criminal Procedure, 1973.”

THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD.

ANTICIPATORY BAIL APPLICATION NO. 277 OF 2022

Raman  Prakash Mundhe Vs  The State of Maharashtra,

CORAM : SARANG V. KOTWAL AND

BHARAT P. DESHPANDE, JJ.

PRONOUNCED ON : 15th July, 2022.

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Whether juvenile is entitled to get anticipatory bail?

In Sudhir Sharma v. State of Chattisgarh :
MANU/CG/0449/2017, a Division Bench of the Chattisgarh
High Court has held as follows:
“There is no warrant for conclusion that non obstante
clause contained in Section 12 of the Act of 2015
completely excludes the availability of remedy of
applying for grant of anticipatory bail by a CICL, who is
apprehending his arrest on the accusation of
commission of any offence. The only provision for grant
of bail as contained under Section 12 of the Act of
2015, which deals with application for grant of bail by a
CICL applies, when he is apprehended or detained by
the police or appears or brought before the Board on
the allegation of having committed a bailable or non-
bailable offence. The statutory scheme of Section 12
mandates grant of bail to a CICL by use of word "shall"
unless there appears reasonable grounds for believing
that the release is likely to bring the CICL in
association with known criminal or to expose such
person to mental, physical or psychological danger or
his release would defeat the ends of justice. The
provision, in fact, deals with a case of child differently
from any other person who is not a child. Unless the
aforesaid three exceptional grounds are made out for
rejection of application for grant of bail, CICL has to be
granted bail irrespective of nature and gravity of
allegations against him. We fail to see how the
beneficial provision for grant of bail to CICL could be
interpreted to the utter prejudice of a CICL to say that
he would not be entitled to say that important
statutory scheme of seeking anticipatory bail provided
under Section 438 of the Code of Criminal Procedure,
1973 is not available to him. On rational construction of
the non obstante clause in Section 12, it only seeks to
put a CICL in a better position as compared to any
other person who is not a CICL by providing that
ordinarily a CICL has to be granted bail and it could be
rejected upon existence of three specified grounds
exhaustively enumerated in the provision itself. There
is no justification for giving non obstante of such a wide
amplitude as to exclude the statutory remedy of
applying for anticipatory bail by a CICL”.
24. I am in respectful agreement with the aforesaid view. At
this juncture, it is to be noticed that in Gopakumar v. State of
Kerala (2012 (4) KHC 841: 2012 (4) KLT 755), while considering
the provisions contained in the Act of 2000, this Court has held
that a juvenile in conflict with law apprehending arrest in a non -
bailable offence, no doubt, will be entitled to seek the
discretionary relief of pre-arrest bail envisaged under Section 438
of the Code because that Section takes within its ambit 'any
person' to seek such relief when he has reason to believe that he
may be arrested on an accusation of having committed a non -
bailable offence.
25. The upshot of the discussion above is that an
application for anticipatory bail under Section 438 of the Code at
the instance of a child in conflict with law is maintainable before
the High Court or the Court of Session.
26. One thing more deserves to be mentioned here. While
granting anticipatory bail to a child in conflict with law, the court
shall not impose conditions which are violative of or not in
conformity with the provisions of the Act. The court shall not
impose conditions which are against the object and spirit of the
Act. For example, the court shall not direct the child in conflict
with law to appear in the police station.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM
 PRESENT:
MR. JUSTICE R. NARAYANA PISHARADI

 Bail Appl..No. 3320 of 2018

 MR.X, S/O BABY V.M   Vs  THE STATE OF KERALA


 Dated: 5th day of June, 2018

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