While setting the record entirely straight, the Karnataka High Court in a notable judgment titled ABC And State of Karnataka in CRL.R.P. No. 1372 of 2022 and cited in 2023 LiveLaw (Kar) 106 that was finally pronounced on February 27, 2023 has made it absolutely clear that a juvenile directed to be tried as an adult can seek bail from children’s court under Section 12 of the Juvenile Justice Act. It was also made clear that the juvenile need not resort to CrPC in such case. It must be mentioned here that the Bench relied on the Bombay High Court ruling in Shubham @ Bablu Milind Suryavanshi v. State of Maharashtra decided on October 21, 2022 where it was held that on being tried as an adult, the juvenile is not denuded of the statutory right available to him under Section 12 of the Act. Very rightly so!
At the very outset, this learned, laudable and latest judgment authored by the Single Judge Bench of Hon’ble Mr Justice S Vishwajith Shetty of the Karnataka High Court sets the ball in motion by first and foremost putting forth in para 1 that, “This criminal revision petition under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ‘the Act’) has been preferred by the child in conflict with law/petitioner challenging the judgment and order dated 24.082021 passed by the Court of Principal Sessions Judge, Mandya, in Crl.A.No.360/2021 and the order dated 10.12.2020 passed by the Juvenile Justice Board, Mandya (for short, ‘the Board’), in FIR No.5/2020 (JC.No.26/2020).”
While dwelling on the facts, the Bench states in para 3 that, “Facts leading to filing of this petition as revealed from the records that may be necessary for the disposal of this petition are, on the basis of the complaint lodged by CW-1 – Ningamma, a criminal case was registered against the petitioner and others in Crime No.110/2020 for the offences punishable under Sections 341, 302, 120B, 109 read with 34 IPC. It is averred in the complaint that her son Raghu was murdered by the petitioner at the instance of other accused persons and during the course of investigation, the petitioner was arrested and he is in custody.”
To put things in perspective, the Bench envisages in para 4 that, “The petitioner, initially, had filed an application under Section 12 of the Act before the Board seeking bail and the Board before considering the same, passed orders under Section 15 of the Act on 10.12.2020, and accordingly held that the bail application did not survive before it for consideration. The petitioner instead of challenging the said order in accordance with law, had filed a separate application under Section 439 Cr.PC before the Court of Principal Sessions Judge, Mandya, in S.C.No.3/2021 which was dismissed on 08.02.2021. Challenging the said order passed in S.C.No.3/2021, petitioner had approached this Court in Crl.R.P.No.605/2021. In the said revision petition, the learned Counsel for the petitioner sought permission to withdraw the revision petition with liberty to exhaust the remedy of filing an appeal under Section 101 of the Act. This Court had, therefore, dismissed the said revision petition with liberty as prayed. The petitioner, thereafter, has preferred Crl.A.No.360/2021 before the Court of Principal Sessions Judge, Mandya, under Section 101 of the Act. The same was dismissed by the Appellate Court on 24.08.2021. It is under these circumstances, the petitioner is before this Court in this revision petition.”
As it turned out, the Bench then points out in para 8 that, “The petitioner, after his arrest, had filed an application under Section 12 of the Act with a prayer to release him on bail. After receipt of the said application, the Board had proceeded to pass an order under Section 15 of the Act which provides for a preliminary assessment of the juvenile, wherein a juvenile aged between 16 to 18 years is involved in committing a heinous crime, for the purpose of testing whether the juvenile can be deemed to be considered as an adult and can be tried before a criminal court under Section 6 of Cr.PC in accordance with the ordinary procedure of law and on passing of an order under Section 15 of the Act regarding the preliminary assessment of the juvenile and if it finds that there is a need for trial of the said juvenile as an adult, then the Board may order transfer of trial of the case to the Children’s Court having jurisdiction to try such offence. The term ‘Children’s Court’ is defined under Section 2(20) of the Act, which reads as under:
“(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.””
Be it noted, the Bench notes in para 14 that, “Though in the present case, the appeal has been filed invoking Section 101(1) of the Act, since the order impugned in appeal is one passed under Section 15 of the Act, the appeal lies only under Section 101(2) of the Act and not under Section 101(1) of the Act. This aspect has been lost sight of by the learned Sessions Judge.”
It is worth noting that the Bench also notes in para 15 that, “From the reading of Section 18(3) of the Act, it is clear that once an order is passed by the Board stating that there is a need for trial of the juvenile as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences, and accordingly, in the present case, the Board has passed an order in exercise of its power under Section 18(3) of the Act. Once such an order is passed by the Board, it has no jurisdiction to consider the bail application pending before it, and therefore, the Board had rightly rejected the same on the ground that the same will not survive for consideration. As against the said order, the juvenile has an option to file an appeal before the Sessions Court under Section 101(2) of the Act or he may also choose to file an application under Section 12 of the Act before the Children’s Court to which his case is transferred in compliance of the requirement under Section 18(3) of the Act by the Board after having passed an order under Section 15 of the Act.”
Most significantly, while citing a recent, relevant and remarkable case law, the Bench then propounds in para 16 that, “The Bombay High Court in the case of SHUBHAM @ BABLU MILIND SURYAVANSHI VS THE STATE OF MAHARASHTRA (Bail Application No.2282/2021, disposed of on 21.10.2022), considering the question whether on being tried as an adult, is the juvenile denuded the statutory right available to him under Section 12 of the Act, has answered the said question in the negative and has held that the application under Section 12 of the Act by the juvenile against whom an order under Section 15 of the Act is passed for trying him as an adult is maintainable and he need not file an application under Section 439 Cr.PC for grant of bail. The parameters for considering the application for bail by a juvenile under Section 12 of the Act are clearly distinguishable from the application one under Section 439 Cr.PC. As against the orders passed under Section 12 of the Act, an appeal lies to the competent court under Section 101(1) of the Act whereas against the order passed under Section 15 of the Act appeal lies to the competent court under Section 101(2) of the Act.”
Do note, the Bench then observes in para 17 that, “Section 12 of the Act provides that a juvenile who is brought before the Board shall be released on bail notwithstanding anything contained in the Code of Criminal Procedure, 1973, or any other law for the time being in force with or without surety or placed under the supervision of a probation officer or under the care of any fit person. The only embargo in not releasing the juvenile on bail under this Section is the proviso to the said Section which prescribes that if there appears reasonable ground for believing that the release is likely to bring the juvenile into association with any known criminal or expose the juvenile to moral, physical or psychological danger or the juvenile’s release would defeat the ends of justice.”
Most forthrightly, the Bench hastens to add in para 18 holding that, “Undisputedly, the petitioner was aged 16 years 11 months 9 days at the time of committing the crime and after recording the reasons and complying with the requirement of Section 15 of the Act, the Board has recorded a finding that the petitioner is required to be tried as an adult by the Children’s Court. Inspite of the petitioner challenging the said order in appeal before the Sessions Court, it is always open to him to also file an application under Section 12 of the Act for grant of bail. If the same is filed, the Sessions Court is required to consider the same strictly in compliance of the requirement of Section 12 of the Act. Since the learned Sessions Judge has failed to consider the appeal arising out of an order passed under Section 15 of the Act in compliance of the requirement of Section 101(2) of the Act, the impugned judgment and order passed by the Sessions Court in Crl.A.No.360/2021 cannot be sustained.”
Finally, the Bench concludes by holding in para 19 that, “The revision petition is allowed. The order dated 24.08.2021 passed by the Principal Sessions Judge, Mandya, in Crl.A.No.360/2021 is set aside and the appeal is remitted to the learned Sessions Judge for fresh consideration in accordance with law. It is open for the petitioner to file an application seeking bail under Section 12 of the Act and if such an application is filed, the Sessions Court is directed to consider the same strictly with the requirement of Section 12 of the Act. Considering the fact that the petitioner is likely to complete three years in custody within a short period, the Sessions Court is directed to consider and dispose of the criminal appeal and the application under Section 12 of the Act, if any, filed by the petitioner, within a period of one month from the date of receipt of a copy of this order.”
In sum, we thus see that the Karnataka High Court has minced absolutely no words to make it crystal clear that a juvenile who is directed to be tried as an adult can seek bail from the children’s court under Section 12 of the Juvenile Justice Act as discussed herein aforesaid! This judgment makes it also clear that there is no need for juvenile to seek bail by filing application under Section 439 of the CrPC. No denying it!
Sanjeev Sirohi