The main legal point established is the non-applicability of Section 439 of the Cr.P.C. for bail plea of a child in conflict with law under the Juvenile Justice Act.

ORDER :

1. Since the juvenile in conflict with law on produced before the Juvenile Justice Board, Vadodara in connection with FIR no. 11197059220396/2022 of Jarod Police Station, Vadodara Rural for the offence under Sections 143, 147, 148, 149, 302, 323, 506(2), 504, 34 of the IPC, his bail application came to be rejected, against that, he through his parents filed Criminal Appeal before the Children’s Court under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as “the Act”), which came to be rejected and has filed the Revision Application challenging the propriety and legality of the order passed by both the authorities. This Court had an occasion to deal with the bail application of a child in conflict with law and while granting bail, this Court had an occasion to deal with the provisions of Section 12 of the Act and had explicitly laid down that Section 439 of the Cr.P.C. would not be applicable on the issue of grant or denial of bail to a child alleged to have committed bailable or non-bailable offence which is dealt with by the special statute i.e. Juvenile Justice (Care and Protection of Children) Act, 2015, which contains specific provision for bail under Section 12 of the Act. In the case of Child in Conflict with Law Through Savitaben Vitthalbhai Vasava v. State of Gujarat, 2022 (0) AIJEL-HC 244005 (passed in CRRA no.901 of 2021 on 28.04.2022), it has been observed as under:-

“15. Explanation to Section 15 of the JJ Act, 2015 stipulates that in case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequence of the offence and the circumstances in which he allegedly committed the offence and then may pass an order in accordance with the provisions of sub-section (3) of Section 18. Thus, the whole endeavour of the JJ Act, 2015 is to protect a child in conflict with law from the path of destruction and being a menace to the Society. The object is reformative and not retributive.

16. Now, under these circumstances upon preliminary assessment made by the JJ Board under Section 15(2) of the JJ Act, 2015 and when the need is found for the trial of the child as an adult and his case is ordered to be transferred to the Children’s Court, the relevant consideration would be whether the child in conflict with law de-jure become an adult to be treated as a child in the subsequent proceedings and thus the question would be whether the application for bail would be maintainable in the High Court under Section 439 for the child in conflict with law, who is sent for trial before the Children’s Court or whether the application for bail should be considered under Section 12 of the JJ Act.

17. Section 12 of the JJ Act, 2015 which deals with the grant of bail to a child expressly contains the non-obstante phrase to be as “.... notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail ...”. This very provision in Section 12 clarifies that provisions of Cr.PC is excluded in the case of bail plea of the child. Further, it requires to be noted that Section 12 is a specific provision under the special statute that deals with the matter of bail and accordingly, the application of Section 439 of the Cr.PC is also necessarily excluded. Cr.PC contains a corresponding clause which is for application on special lines. Considering this aspect in case of a bail application on behalf a child, it would be required to be concluded that such bail plea would not be maintable under Section 439 of Cr.PC.

18. The order under Section 18(3) of the JJ Act transferring the trial of the case to the Children’s Court would not declare the child as an adult. Child in conflict with law is defined under Se