Point of Law: Special powers of High Court or Court of Session regarding bail - Bail Application under Section 439 of Cr.P.C for juvenile or remedy under Section 101 of Act, 2015 - Power to grant bail to any person, who has not completed age of 18 years irrespective of nature of offence being ‘bailable’ or ‘non-bailable’ or specified in any of three categories of Act, as ‘petty offences’, ‘serious offences’ and ‘heinous offences’.

JUDGMENT :

Per Sujit Narayan Prasad, J:

The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have raised no complaint regarding audio and visual quality.

2. The instant bail application is being heard by the Division Bench of this Court on reference being made by the learned Single Judge vide order 17.10.2020, on the issue of maintainability of bail under Section 439 of the Code of Criminal Procedure for juvenile or remedy under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015, (herein after referred to as the ‘Act, 2015’), as two divergent views have been expressed on the issue in question. For ready reference, the reference made by learned Single Judge, to answer by the Division Bench, is quoted hereunder as:

“(i)Whether in view of sub section (5) of Section 101 of the Act, an appeal is maintainable in a case where bail filed by a juvenile under the Act is rejected by the Children’s Court? (ii)Whether the order dated 11.12.2017, passed by the Coordinate Bench in Cr. Appeal (S.J.) No.2119 of 2017 [Sahabuddin Ansari @ Nannu Ansari @ Md. Sahabuddin Ansari versus The State of Jharkhand & Another], holding that appeal is not maintainable, is good a law or not?”

3. Mr. Mukesh Bihari Lal, learned counsel for the petitioner has submitted that a bail petition for grant of regular bail, being M.C.A. No. 847 of 2020, was filed on behalf of petitioner, Guddu Kumar Singh, a juvenile, who is languishing in observation home since 08.11.2019 in connection with Baliapur P.S. Case No. 151 of 2019 corresponding to G.R. Case No. 199 of 2020 registered under Section 302/34 of the Indian Penal Code before the Court of District & Additional Sessions Judge-1, Dhanbad, which was rejected vide order dated 17.06.2020.

4. Challenging the same, the present bail application under Sections 439 and 440 of the Code of Criminal Procedure has been filed by the petitioner.

5. Learned counsel for the petitioner submitted that since the bail application of the petitioner was rejected by the Sessions Judge, the only remedy was to file bail application under Sections 439 and 440 of the Code of Criminal Procedure and provision as contained in Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015 will not be applicable.

In support of his submission, he has referred to the judgment rendered in the case of Sahabuddin Ansari @ Nannu Ansari @ Md. Sahabuddin Ansari versus The State of Jharkhand & Another in Cr. Appeal (S.J.) No.2119 of 2017, wherein it has been hold that “.. in the instant case finding has not been challenged, rather prayer has been made for bail of the appellant. Prayer of the bail of the appellant lies under regular provisions of law. So, this criminal appeal is not maintainable in the present form.”

6. Mr. Satish Prasad, learned A.P.P. appearing for the State and Mr. Rohit, learned counsel appearing for the informant have jointly submitted that application under Section 439 of the Code of Criminal Procedure will not be applicable for grant of regular bail rather the provision as contained in sub-section (5) of Section 101 of the Act, 2015 would be applicable.

7. This Court, having heard learned counsel for parties and in order to answer the issue, deem it fit and proper to travel across the provisions as contained in Section 101 of the Act, 2015 in entirety.

For ready reference, the same is reproduced hereunder as:

“101.(1) Subject to the provisions of this Act, any person aggrieved by an order made by the Committee or the Board under this Act may, within thirty days from the date of such order, prefer an appeal to the Children’s Court, except for decisions by the Committee related to Foster Care and Sponsorship After Care for which the appeal shall lie with the District Magistrate:

Provided that the Court of Sessions, or the District Magistrate, as the case may be, may entertain the appeal after the expiry of the said period of thirty days, if i