[BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-IX

Ans. No. A child in conflict with law cannot be kept in jail or in a police lockup under any circumstance and has to be kept in an “observation home” or any other place of safety. All the Juvenile Justice Boards (“JJB” for short) in the country must follow the letter and spirit of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ Act” for short). JJBs are not meant to be silent spectators and pass orders only when the matter comes before them. They can take note of the factual situation if it comes to their knowledge that a child has been detained in prison or police lock up. It is the duty of the JJBs to ensure that the child is immediately granted bail or is sent to an observation home. (Vide para 6 of In Re. Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India (Writ Petition (Criminal) No: 102/ 2007 (SC) – Madan B. Lockur, Deepak Gupta - JJ.

Q.42 What are the rules regarding the competence of the Court admitting an accused to bail and the difference in the phraseology employed by the enabling provisions ?

Ans.

1. Where the case is triable by a Court including a Special Court without a committal of the case to that Court, then the Court which can grant bail to the accused is the Court having jurisdiction to try the case. (Vide Section 167 (2) Cr.P.C.)

In such a case, the Court superior to the trial Court also can grant bail.

2. Where the case is triable by a Court of Session requiring a committal of the case to the Court of Session, then bail to the accused can be granted by the committal Magistrate also, but prior to the committal of the case to the Court of Session.

3. A Magistrate cannot grant bail to an accused in a case covered by clauses (i) and (ii) of Section 437 (1) Cr.P.C. unless the case attracts the first and second provisos to Section 437 (1) Cr.P.C.

4. The wording of Section 436 (1) in the case of bailable offences and of Section 437 in the case of non-bailable offences is that the person (i.e. the accused) may be released on bail by the Police Officer or the Court.

5. But the wording of Section 439 (1) (a) Cr.P.C. is “the High Court or the Court of Session may direct that the accused in custody be released on bail”. (Vide Mahesh v. State of Kerala 2010 (4) KLT 921 – K. Hema – J )

BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS AT ………………………………………..

Criminal Miscellaneous Petition No ……………..of 2020

(Filed under Section 437 Cr.P.C.)

ABCD (Name) ………………………………………………………………..Petitioner

Versus

State, represented by the Station House

Officer, of ………………………………..Police Station

Crime (FIR) No………………………………………….

Informant (name and address)……………………...

Offences…………………………………………………..

Rank of the petitioner ……………………….A1.

Date of arrest…………………………………………..

Date of remand………………………………………..

Date of this petition…………………………………

APPLICATION FOR REGULAR BAIL FILED UNDER SECTION 437 Cr.P.C.

The petitioner has been arrayed as the first accused in the above crime. The informant in the above case is Shri…………………………

2. The allegations leveled against the petitioner are as follows:-

Here, briefly describe the first informant’s case (.………………………………

…………………………………………………………………………………………………………………………………………………………………………………………………)

3. It is respectfully submitted that the allegations made against the petitioner are not true. The petitioner has not committed any of the offences alleged against him. The petitioner is innocent. The petitioner is a law abiding citizen and he has not been involved in any crime before also. If the petitioner is detained in Police or judicial custody, it will cause incalculable and irreparable laws and hardship to the petitioner and his family. In that event, the reputation of the petitioner and his family will also be lost.

4. The petitioner is prepared to furnish solvent sureties and is willing to abide by any reasonable condition which this Honorable Court may impose.

It is, therefore, respectfully prayed that this Honorable Court may be pleased to grant bail to the petitioner in the above crime and direct his release from custody forthwith.

Dated this the 26^th day of August, 2020.

Signed Petitioner

Signed Advocate for the petitioner