Mohd. Amir and Others vs State of U.P.

B.K. Rathi, J.—The applicants are accused in Case Crime No. 26 of 2002 for offences under Sections 302 and 307, Indian Penal Code, police station, Bardah, district Azamgarh and are in custody.

It is alleged that all the applicants are "Juvenile in conflict with law" and, therefore, they may be released on bail as no Board has been constituted u/s 4 of the Act in the State of U. P.

I have heard Sri P. C. Srivastava, learned Counsel for the applicants and the learned A.G.A.

The Juvenile Justice Act, 1986, has been repealed and the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ''the Act'') has been enforced w.e.f. 1.4.2001. It provides that "Juvenile in conflict with law" shall be tried by the Juvenile Justice Board constituted u/s 4 of the Act. It is admitted to the applicants as well as to the A.G.A. that no Board has yet been constituted. Sri P. C. Srivastava has, therefore, prayed that the bail application of the applicants be disposed of by this Court and a finding be recorded that the applicants are "Juvenile in conflict with law."

The old Juvenile Justice Act, 1986, has been repealed since 1.4.2001 which contained the provision for appointment of Juvenile Judge and with the repeal of the old Act, the appointments of Juvenile Judge under that Act had automatically ceased as in the new Act there is no Court of Juvenile Judge. On the other hand, u/s 4, there is provision for constitution of Juvenile Justice Board.

Therefore, even with the help of the provision of Section 20 of the General Clauses Act, in the absence of the constitution of the Board, the Juvenile Judge appointed under the old Act cannot exercise power of the Juvenile Justice Board after the enforcement of the new Act in which there is no court of Juvenile Judge.

Therefore, in the absence of creation of Juvenile Justice Board, the question is as to who should consider the bail application and record a finding that the applicants are "juvenile in conflict with law" and whether the application can be entertained directly by the High Court.

In my opinion, till the Board is constituted, u/s 4 of the Act, the bail application can be entertained and decided in accordance with the provisions of Criminal Procedure Code as provided by Clause (1) of Section 4, Criminal Procedure Code, which is as follows:

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

Therefore, in the absence of the constitution of the Board, the applicants may move application for bail before the Magistrate having jurisdiction u/s 437, Criminal Procedure Code and in case the same is rejected, they may move application u/s 439, Criminal Procedure Code before the Sessions Judge and also before the High Court. The request for bail cannot directly be considered by this Court.

The petition is disposed of accordingly.