Juvenile Directed To Be Tried As Adult Can Seek Bail From Children's Court U/S 12 JJ Act, Need Not Resort To CrPC: Karnataka High Court

The Karnataka High Court has made it clear that once an order is passed under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, holding that a child in conflict with law is required to be tried for heinous offences as an adult, the JJ Board has no jurisdiction to consider the bail application pending before it.

A single judge bench of Justice S Vishwajith Shetty added,

"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."

The bench relied on Shubham @ Bablu Milind Suryavanshi v. State Of Maharashtra, where it was held that on being tried as an adult, the juvenile is not denuded the statutory right available to him under Section 12 of the Act.

"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 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," High Court ruled.

A criminal case was registered against the petitioner and others for the offences punishable under Sections 341, 302, 120B, 109 read with 34 IPC. The petitioner, initially, had filed an application under Section 12 of the Act before the JJ Board seeking bail. The Board, before considering this application passed orders under Section 15 of the Act and accordingly held that the bail application did not survive before it for consideration. Following which the petitioner preferred appeal before the Court of Principal Sessions Judge under Section 101 of the Act. The same was dismissed by the Appellate Court.

The Petitioner-accused thus argued that being aged below 18 years as on the date of the alleged incident, he ought to have been granted bail having regard to Section 12 of the Act.

The Prosecution opposed the plea stating that the petitioner has attempted to escape from the Observation Home and the material on record would show that he has not been cooperating for speedy disposal of the case.

Findings:

At the outset, the High Court noted that the prior to passing any order on petitioner's application for bail, the JJ Board proceeded to consider his case under Section 15 of the Act.

“The learned Sessions Judge, without appreciating that the order impugned before him was an order passed under Section 15 of the Act which is appealable under Section 101(2) of the Act, has proceeded to consider the appeal as if it is a bail application and has rejected the appeal,” it remarked.

The Court was of the view that whenever an appeal is filed challenging the order passed under Section 15 of the Act, the Sessions Court/Children's Court deciding the appeal shall take the assistance of experienced psychologists and medical specialists other than those whose assistance has been already taken by the Board in passing the order under Section 15 of the Act.

The bench held “In the present case, no such exercise has been undertaken by the learned Sessions Judge, and on the other hand, the learned Sessions Judge has dealt with the appeal as if it is an appeal arising out of the order passed under Section 12 of the Act rejecting the bail application filed by the juvenile.”

The court clarified that 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 said.

It observed 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.

The bench held

“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...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.”

Allowing the petition the court held “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, cannot be sustained.”

Case Title: ABC And State of Karnataka

Case No: CRL.R.P. NO. 1372 OF 2022

Citation: 2023 LiveLaw (kar) 106

Date of Order: 27-02-2023

Appearance: Advocate A.N Radha Krishna for petitioner.

HCGP Rashmi Jadhav for respondent.