Prashant Tomar (In Jail) vs State of U.P. and Another

R.C. Deepak, J.—This is a criminal revision against the order dated 17.6.2003, passed by the C.J.M., Baghpat in Criminal Misc. Bail Application of Prashant Tomar (Revisionist) in Case Crime No. 39 of 2003, under Sections 302/34, 120B police station, G.R.P., Baraut, district Baghpat and the order of learned Sessions Judge dated 25.7.2003 rejecting his Bail Application No. 381 of 2003.

The facts which emerge from the record are that Prashant Tomar is an accused in Case Crime No. 39 of 2003, under Sections 302/34, 120B, I.P.C., police station, G.R.P., Baraut, district Baghpat. He is below 18 years alleged to be juvenile. He moved an application for bail before, the C.J.M. The C.J.M. rejected his bail application. He also filed an application for bail before the Sessions Judge concerned but the same was also rejected. The above named accused presented a Criminal Misc. Bail Application No. 13919 of 2003, u/s 439, Cr. P.C. before Hon''ble Court and the said bail application was also dismissed as withdrawn for filing the present revision.

I have heard Sri Krishna Capoor, learned Counsel assisted by Sri Jagdev Singh, learned Counsel for the revisionist, Sri V. K. Singh, learned Counsel for the O. P. No. 2, learned Additional Government Advocate and perused the entire record.

The orders u/s 437/439, Cr. P.C. are not revisable orders. No revision under the Cr. P.C. lies. They are by nature interlocutory orders. These orders do not decide any question of law or mixed question of law or facts or any issue in any proceeding under the Cr. P.C. These orders simply refer to bail, such application can be made at any stage, during investigation, during commitment proceeding or any time during trial, however, they do not decide any fact in issue in any inquiry or trial, therefore, these orders cannot be put even in the category of an interlocutory orders. In this view of matter, no revision is permissible to any accused under the law.

The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for an appeal if the prayer of a delinquent is refused by the Board or the competent authority, though it is that even after 2 and 1/2 years since the enforcement of the aforesaid Act, the Government of this State has not constituted a Board, hence the applicant is certainly denied of his right to move such Board for determination of his juvenile status, yet this Court, however, cannot take upon itself the obligations of the Board. Under the Code of Criminal Procedure, a person can be treated a minor if he is 16 years or below this is provided u/s 437, Cr. P.C. The added benefits to the applicant in the circumstance of the raised age by 2 years of the Juvenile Justice (Care and Protection of Children) Act, 2000 is in the circumstance enumerated above is not available to him due to non-constitution of Board. In view of the matter since the revision is not maintainable, I am not entitled to grant any benefit under the said Act to the applicant. He has a remedy by way of bail u/s 439, Cr. P.C. in this Court. He had earlier filed a bail application in this Hon''ble Court but got the same dismissed as withdrawn just to file the present revision. The advice, in my opinion, was wholly ill-conceived.

The remedy is still open to the applicant u/s 439, Cr. P.C. The revision is accordingly dismissed.