Landmark Judgment on grant of bail to juvenile and conduct of trial under Juvenile Justice Act 2015

We, thus, sum up the references by

holding as under:-

Q. (i). Under which provision of law, a

child, who has completed or is above the age

of 16 years and is alleged to have committed

a ‘heinous offence’ can maintain his

application during the pendency of

preliminary assessment by the Board under

Section 15 of the Act of 2015?

A. For the reasons recorded hereinabove, a

child, who has completed or is above the age of

16 years and is alleged to have committed a

‘heinous offence’ can maintain his application for

release on bail under Section 12 of the Act of

2015 during the pendency of preliminary

assessment by the Board under Section 15 of the

Act of 2015.

Q. (ii). Under which provision of law, a

child, who has completed or is above the age

of 16 years and is alleged to have committed

a ‘heinous offence’ can maintain his

application for release on bail after the

transfer of his case to the Children’s Court

for trial by the Board ?

A. For the reasons recorded hereinabove, a

child, who has completed or is above the age of

16 years and is alleged to have committed a

‘heinous offence’ can maintain his application for

release on bail under Section 12 of the Act of

2015 after the transfer of his case to the

Children’s Court.

Q. (iii). Whether the powers conferred

on the Board in the matter of bail to a

person, who is apparently a child alleged to

be in conflict with law are also available to

the Children’s Court ?

A. In view of clear, unambiguous and specific

stipulation in Section 8(2) of the Act of 2015,

which provides that the powers conferred on the

Board under the Act may also be exercised by the

High Court and the Children’s Court in the matter

of grant of bail to a person, who is apparently a

child and is alleged to have committed a bailable

or non-bailable offence, the powers conferred on

the Board under the Act of 2015 are also

available to the Children’s Court and the High

Court.

Q. (iv). Whether seriousness of the

offence alleged is a ground for rejecting the

bail in case of a child in conflict with law?.

A. Seriousness of the offence alleged cannot

be made a ground for rejecting bail under the Act

of 2015.

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 Children’s Court?

A. Against an order granting or refusing bail

passed by the Children’s 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.

Q. (vi). What is the scope of Section

19(1)(i) of the Act of 2015 in connection

with the trial of a child as an adult? Whether

the provisions of Section 19 of the Act of

2015 are mandatory or the Children’s Court

has to compulsorily follow the

recommendations of the Board made under

Section 15 read with Section 18(3) of the

Act of 2015 ?

A. Upon a case of a child having been

transferred to the Children’s Court, a duty has

been cast upon the Children’s Court to further

decide about the suitability of the child to be tried

as an adult. The words used in Section 19(1)(i)

and 19(1)(ii) of the Act of 2015 give two options

to the Children’s Court. First, to try the

transferred child as an adult and second not to

deal with child as an adult. The Children’s Court is

required to record its reason while arriving at a

conclusion whether the child should be treated as

child or an adult in view of Rule 13 (6) of the

Rules. In case, the Children’s Court decides to

deal with child as a child it has to conduct an

inquiry as a Board following the procedures for

trial of a summons case in accordance with the

provisions of Section 18 as would appear from

the words used in Section 19(1)(i) of the Act of

2015. In case, it decides to try the child as an

adult, it shall follow the procedure as prescribed

by the CrPC for the purpose of trial by Sessions

Court and pass appropriate orders after trial

without prejudice to the provisions of Sections 19

and 21 of the Act of 2015 considering special

‘needs of the child’ the tenets of ‘fair trial’ and

maintaining a ‘child friendly’ atmosphere as

provided under Section 19(1)(i) of the Act of

2015.

The provisions of Section 19(1) of the Act

of 2015 are mandatory. The Children’s Court

cannot dispense with the requirement of deciding

as to whether there is need to try the transferred

child as an adult or to deal with the transferred

child as a child.

Q. (vii). What is the scope of application

of the provisions of CrPC after the Board

transfers the trial of the case to the

Children’s Court having jurisdiction to try

such offences and the Children’s Court

decides that there is a need for trial of the

child as an adult?

A. The procedure followed by the Children’s

Court for trial of a child as an adult would be of a

warrant case and the proceedings in Chapter

XVIII prescribed under Sections 225 to 237 of

the CrPC, which deal with warrant cases by a

Court of Sessions only would be applicable while

trying a child as an adult, subject to exceptions

indicated under the Act of 2015.

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.2117 of 2019

LALU KUMAR @ LAL BABU @ LALLU,  Vs  The State of Bihar

CORAM: MR. JUSTICE ASHWANI KUMAR SINGH

and  MR. JUSTICE BIRENDRA KUMAR

(Per: MR. JUSTICE ASHWANI KUMAR SINGH)

Date :01-10-2019

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Difference between trial before the regular court and before the children's court

 On transfer to the regular criminal court, the trial may be according to the mainstream criminal procedure, but the punishment, however, must be reformative and rehabilitative--rather than retributive. Then what is the difference between the two trials--the trial before the regular court and that before the children's court?

43. Essentially, the trial in the regular court is offense oriented; in the juvenile court, it is offender oriented. In other words, in the children's court, societal safety and the child's future are balanced. For an adult offender, prison is the default option; for a juvenile it is the last resort. Aaron Kupchik calls the method adopted by the regular criminal courts vis-a-vis juveniles the "sequential model of justice." That is, it adheres to a criminal justice model during the trial phase of case processing, but moves toward a juvenile justice model during sentencing, though the quantum varies in both methods. In contrast, the juvenile court follows a justice model throughout.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 1153 of 2018, Criminal Writ Petition No. 1346 of 2018 and Criminal Application No. 262 of 2018 in Writ Petition No. 1346 of 2018

Decided On: 15.07.2019

Mumtaz Ahmed Nasir Khan  Vs.  The State of Maharashtra 

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Important provisions of juvenile justice Act 2015

2. Definitions.—In this Act, unless the context otherwise requires,—

(12) “child” means a person who has not completed eighteen years of age;

(13) “child in conflict with law” means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence;

(20) “Children's Court” means a court established under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court under the Protection of Children from Sexual Offences Act, 2012 (32 of 2012), wherever existing and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the Act;

(23) “court” means a civil court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts;

(33) “heinous offences” includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more;

(45) “petty offences” includes the offences for which the maximum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment up to three years;

(54) “serious offences” includes the offences for which the punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force, is imprisonment between three to seven years;

4. Juvenile Justice Board.—

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Whether a child, who has not committed heinous offence can be transferred to Children's Court?

 The legal issue is raised as follows :
Whether a child, who has not committed heinous offence can
be transferred to Children's Court?
 Under section 15 of the said Act, preliminary assessment in
respect of offence whether is heinous, is to be made by Juvenile Justice
Board. The word “heinous offences” is defined under section 2 (33) of
the said Act, which states as follows :
“2 (33). “heinous offences” includes the offences for
which the minimum punishment under the Indian Penal
Code (45 of 1860) or any other law for the time being in
force is imprisonment for seven years or more” .
10. Section 2 (54) of the said Act defines “serious offences” includes
the offences for which the punishment under the Indian Penal Code (45
of 1860) or any other law for the time being in force, is imprisonment
between three to seven years.

11. Under section 307 of IPC, minimum punishment is not
prescribed, but punishment may extend to ten years and fine, and if
hurt is caused to any person, then punishment can be extended upto
life imprisonment.
12. Thus, due to the benchmark of minimum punishment of 7 years
or more, section 307 of IPC cannot fall within the ambit of heinous
offences.
 In the present case, all the petitioners though are between the
age group of 16 to 18 years, they have not committed heinous offences
and, therefore, their case is not covered under section 15 of the said Act
and no order can be passed under section 18 (3) of the said Act of
transferring the case to Children's Court. Hence, the order dated 19th
January, 2018 passed by Juvenile Justice Board of Sangli District and
also the order dated 13th July, 2018 passed by Juvenile Justice Board,
Sangli are quashed and set aside and the inquiry is to be conducted by
Juvenile Justice Board, Sangli under section 18 (3) of the said Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4044 OF 2018

 Saurabh Jalinder Nangre, Vs State of Maharashtra,

CORAM: MRS.MRIDULA BHATKAR, J.
DATED: DECEMBER 10, 2018

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When offence against child will not be triable before children's court?

.In the case in question, the petitioner is alleged to have

  committed the offences under Sections 279,337 and 338.

  Causing hurt or grievous hurt by rash and negligent driving is

  the ingredient of those offences.            In Cambridge Advanced

  Learner's Dictionary, Third Edition, the word 'rash' when used as



  adjective means careless or unwise, without thought for what

  might happen or result, meaning thereby that while doing

  something, the person did not think about the costs involved. In

  Cambridge Advanced Learner's Dictionary Third Edition, the

  word 'negligence' when used as adjective means not being

  careful or giving enough attention to people or things that are

  your responsibility. Therefore, when the allegation was to the

  effect that a person has acted in a rash and negligent manner, it

  cannot be said that he has acted intentionally. In view of the

  above, the petitioner in the case on hand cannot be said to have

  acted intentionally while causing injury to the victim. Or in

  other words, hurt or grievous hurt was caused to the child not by

  any intentional act of the petitioner. Without the juncture of the

  mental element like intention, infringement or violation of a right

  is not possible. Contextually, hurt or grievous hurt was caused

  to the child in the motor accident resulted from the rash and



  negligent driving by the petitioner. But the right of the child

  cannot be said to have been infringed or violated by the

  petitioner by his act. The incident in which the child has

  sustained injuries can only be said to be caused accidentally out

  of rashness and negligence on the part of the petitioner. In such

  circumstances,       the petitioner cannot be said to have

  intentionally caused hurt or grievous hurt to the child in the case

  on hand to put the same within the jurisdiction of the Sessions

  Court, Pathanamthitta.        Therefore, the     Sessions   Court,

  Pathanamthitta, which is designated as the children's court

  cannot be said to have any authority to try the case. The Judicial

  First Class Magistrate Court, Pathanamthitta, which is the

  committal court is the appropriate court to try the case.

  13. In Abdul Aziz's case (supra), a Single Bench of this Court

  had occasion to deal with a situation of similar nature and held as

  follows:-



              "..........Even if the victim in an accident case is
              aged below 18 years, such cases registered under
              Sections 279,337,338 or 304(A) of IPC, being cases
              arising out of an accident need not be tried by the
              Children's Court, constituted under Section 25 of
              the Central Act 4/2006. But, other cases involving
              violation of 'child rights', acts done with the
              intention to violate or infringe the 'child rights' if
              done with the knowledge that by his act the child
              right is likely to be violated then such offences are
              to be tried by the Children's Court. The learned
              Magistrates, before whom such charge sheets are
              filed, are to apply their minds and find whether
              offences complained of involve violation of the
              'child rights'. If so, such cases are to be committed
              to the Court of Sessions (The children's Court),
              following the procedure prescribed under Sections
              207 to 209 Cr.P.C. "


  14.In view of the discussion hereinabove made and in view of

  the aforesaid dictum, this Court is of the view that Annexure A1

  committal order will not sustain in the eye of law.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

             MRS. JUSTICE MARY JOSEPH

         7TH DAY OF JUNE 2016
                        Crl.MC.No. 2910 of 2013
                  

            P.M.MATHEW,
        V 

            STATE OF KERALA,
           Citation:2016 CRLJ 4766

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