Court cannot issue a direction in breach of law however noble it may seem to appear; Madras HC declined to issue a blanket order to release Juveniles on same day of surrender

Madras High Court recently ruled that it cannot direct the Juvenile Justice Board to release the Juveniles on bail on the same day of their surrender. Dismissing a batch of petitions filed on behalf of the juveniles, Justice P.N. Prakash observed,

“Whether in a given case, the juvenile in conflict with law will be exposed to “moral, physical or psychological danger” is a fact that can be assessed only by the Juvenile Justice Board, where members are trained to gauge the situation. Therefore, this Court should not give a blanket order in all the cases to the Juvenile Justice Board to release the juvenile in conflict with law on bail on the very same day of his production. Such direction will go contrary to the mandates of Section 12(1) of the Old Act as well as New Act. No direction under Section 482 of the Code can be given contrary to the express statutory provisions under a Special Act”

It was contended by the petitioners that if an accused juvenile was arrested and produced before the Board, he is placed in the custody of an Observation Home till a report from the Probation Officer is obtained. This, they contended, causes undue prejudice to the juvenile inasmuch as he is likely to come into contact with those involved in serious offences in the Observation Home, which will be detrimental to his interest.

They referred to several earlier judgments wherein such orders have been passed in the past. One of these orders was actually passed by Justice P.N. Prakash himself. The Judge however was of the view that the order required reconsideration. “After all, we become wiser day by day,” he observed.

The Judge noted that as per the New Juvenile Justice (Care and Protection of children) Act 2016, those involved in bailable or non-bailable crimes should not be released if there appeared reasonable grounds to believe that in doing so, it was likely to bring that person in association with any known criminal or expose them to moral, physical or psychological danger.

However, the was of the view that question of a juvenile in conflict with law being exposed to moral, physical or psychological danger can be assessed by the JJB, where members are trained to gauge the situation. It therefore observed that it should not give a blanket order in all cases to the JJB to release the juvenile in conflict with law on bail on the very same day of his production.

Justice Prakash referred to one of the cases before him, where in the juvenile was alleged to have made derogatory remarks about women of another community in the village, which, in all probabilities, would lead to communal violence. Under such circumstances, it noted that the release of the juvenile on the same day would, in all probabilities, lead to communal violence. The petitioner also requires counseling so that he refrains from making such inflammatory statements and posting them on Facebook, he added.

The Court further reasoned that no such power to grant bail can be derived from Section 482 of the Code of Criminal Procedure, as the same is traceable to Section 12 of the JJ Act. “Section 12 of Act 2 of 2016 also has non obstante clause, indicating the legislative intent, that the source of power to grant bail under this Act is independent from that of the Code. Section 5 of Code of Criminal Procedure indubitably protects the procedures laid down in special statutes from the onslaught of the provisions of the Code in the absence of a specific provision to the contrary in the Code. This rests on the principle Generalia Specialibus Non Derogant (special law prevails over general law). The non obstante clause used in Section 1(4) and Section 12 of the Juvenile Justice Act cited supra denudes the power of this Court to issue such directions under Section 482 Cr.P.C. Section 482 cannot be used to foreclose the power of the Board to conduct a full pledged enquiry under Section 12 of the J.J. Act,” the Court observed

“Therefore, this Court has no jurisdiction under Section 482 Cr.P.C. to give such directions as prayed for by the petitioners in matters concerning a special statute, namely, the Juvenile Justice Act, and directing the Board to act in breach of law, however, noble it may seem to appear” the Court concluded.

Read the order here.