- (1.) The petitioner has filed this bail application u/ S. 439, Cr. P.C. for his release in criminal case FIR No. 196/1991. The accusation against the petitioner is that, Charas weighing 7 grms. and 500 Ml. grms. were recovered from his possession on Sept. 12, 1991. A report of the incided was lodged at P.S. Kunhadi-Kota by Sh. Mohan Singh, S.H.O. On the said report, Crime No. 196/91 u/ Ss. 8/ 20 of the N.D.P.S. Act, 1988 was registered. In the report, the age of the petitioner has been given as 17 years.
(2.) The petitioner moved an application for grant of his bail under Section 439, Cr. P.C. before the Sessions Judge, Kota, but his application was rejected on the ground that as per medical report, the age of the petitioner is between 14 to 15 years, as such, he is a child within the definition of the Juvenile Justice Act, 1986 (hereinafter to be referred as 'the Act'), as such, the order of bail cannot be passed by any Court constituted under the Code of Criminal Procedure. In other words, the, learned Sessions Judge was of the view that in spite of the fact that thin accused is a child, the bail can be granted by a Juvenile Court and no other Court. Therefore, a short question arises for determination as to whether Court other than a juvenile Court constituted under the Act has jurisdiction to pass an order of bail even it is satisfied that the accused is a child. In this connection, the contention of the learned counsel for the petitioner is that there is no bar either under the Code of Criminal Procedure or under the Act taking away the jurisdiction of a Court constituted under the Code of Criminal Procedure restricting its power to release a child on bail if it is satisfied that the accused is a child under the Act and there is nothing on the record to show reasonable grounds for believing that his 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. The learned counsel further argued that this Court has been granting bail to the juvenile offenders in exercise of its powers either u/ S. 437 or 439, Cr. P.C. The learned counsel further drew my attention to Section 33 of the N.D.P.S. Act which empowers a Court to release the accused on probation, who is below the age of 18 years.
(3.) In order to appreciate the above argument, it is necessary to refer certain relevant provisions of the Act. The Juvenile Justice Act, 1986 has been enacted to provide for care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to and disposition, delinquent juveniles. It is not disputed before me that the said Act has come into force. Section 2 of the said Act deals with certain definitions, 'Delinquent Juvenile' has been defined u/ S. 2(e) of the Act as a juvenile who is found to have committed an offence. 'Competent Authority' has been defined under Section 2 (d) of the Act reads as under:- " 'Competent authority' means in relation to neglected Juveniles, a Board and, in relation to delinquent juveniles, a Juvenile Court and where no such Board or Juvenile Court has been constituted, includes any Court empowered under sub-section (2) of Section 7 to exercise the powers conferred on a Board or Juvenile Court." 'Juvenile' has been defined under Section 2(h) of the Act means a boy who has not attained the age of sixteen years or a girl who not attained the age of eighteen years. 'Juvenile Court' has been defined u/ S. 2(i) of the Act as a Court constituted u/ S. 5 of the Act. 'Offence' has been defined u/ S. 2(n) of the Act to mean an offence punishable under any law for the time being in force. Chapter- II of the Act provides competent authorities and institutions for juveniles. Section- 5 of the Act provides for Juvenile Courts to be constituted by notification by the State Government for any area specified in the notification, for exercising the powers and discharging the duties conferred or imposed on such Court in relation to delinquent juveniles under this Act. Section 7 of the Act which is very much relevant is reproduced below: "Powers of Board and Juvenile Court - (1) Where a Board, or a juvenile Court has been constituted for any area, such Board or Court, shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act have power to deal exclusively with all proceedings under this Act relating to neglected juveniles or delinquent juveniles, as the case may be; Provided that a Board or a juvenile Court may, if it is of opinion that it is necessary so to do having regard to the circumstances of the case, transfer any proceedings to any juvenile Court or Board, as the case may be: Provided further that where there is any difference of opinion between a Board and a Juvenile Court regarding the transfer of any proceedings under the first proviso, it shall be referred to the Chief Metropolitan Magistrate or as the case may be, Chief Judicial Magistrate for decision, and in a case where the District Magistrate is functioning as a Board or a Juvenile Court, such difference of opinion shall be referred to the Court of Session, and the decision of the Chief Metropolitan Magistrate or Chief Judicial, Magistrate or, as the case may be, the Court of Sessions on such reference shall be final. (2) Where no Board or Juvenile Court has been constituted for any area, the powers conferred on the Board or the Juvenile Court by or under this Act shall be exercised in that area, only by the following namely, a) The District Magistrate; or b) the Sub-Divisional Magistrate; or c) any Metropolitan Magistrate or Judicial Magistrate of the first class, as the case may be. 3) The powers conferred on the Board or Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Sessions, when the proceeding comes before them in appeal, revision or otherwise. (Emphasise provided) Section 18 deals with bail and custody of juveniles. It provides that 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 shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on ball with or without sure but he shall not be so released if there appear 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. Section 8 of the Act provides the procedure to be followed by a Magistrate not empowered under the Act. It reads as under:- "Procedure to be followed by a Magistrate not empowered under the Act - (1) When any Magistrate not empowered to exercise the powers of a Board or a juvenile Court under this Act is of opinion that a person brought before him under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, he shall record such opinion and forward the juvenile and the record of the proceeding to the competent authority having jurisdiction over the proceeding. 2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile had originally been brought before it." Section 20 provides for inquiry by Juvenile Court regarding delinquent juveniles and Section 21 provides the orders that may be passed regarding delinquent juveniles. Section 23 of the Act prohibits any proceedings to be instituted or ordered to be passed against a juvenile under Chapter VIII of the Code of Criminal Procedure which deals 'security for keeping the peace and for good behaviour'. Then Section 24 prohibits a joint trial of a juvenile and a person not a juvenile. Section 32 of the Act provides for determination of age and it reads as under:- "Presumption and determination of age (1) Where it appears to be a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be- (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile, and the age recorded by the competent authority to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person." Section 38 of the Act provides revision to the High Court to satisfy itself as to the legality or propriety of any such order passed by any competent authority or Court of Session and to pass such order in relation thereto as it thinks fit. From the above provisions, it is clear that the Juvenile Justice Act is a self-contained Act and it contains all necessary provisions in relation to a delinquent juvenile.;