Rahul vs State of U.P. and Sub Inspector, Sri R.S. Mallick

Vinod Prasad, J.—The applicant has filed this application u/s 482 Cr.P.C. with the prayer that his bail be directed to be considered by the CJM, Mathura as Juvenile Justice Board is not functioning in District Matura because one of it''s member has resigned.

From the facts it seems that the applicant is an accused for offence u/s 401 IPC which means that the allegations against him that he belongs to a gang of thieves. He is alleged to have been apprehended on the intervening night of 16/17- 7- 2006 at about 1.45 AM and FIR against him was lodged by R.S. Malik, Sub Inspector of police PS Kotwali District Mathura at 3.15 AM on 17.7.2006 as crime number 394 of 2006.

I have heard Sri S. R. Verma, learned Counsel for the applicant and the learned AGA in support and opposition of this applicant.

Learned Counsel for the applicant has mainly argued that there is no bar in Cr.P.C. u/s 437 for considering the bail of a juvenile if the Juvenile Justice Board is not functioning. He further contended that u/s 437 Cr.P.C. it is provided that if the accused is less than 16 years of age then he may be released on bail by the Magistrate.

Learned AGA contrarily submitted that the impugned order does not suffer from any illegality and this revision being meritless deserved to be dismissed.

For appreciating the submissions of the counsel for the revisionist a scrutiny of the relevant legal provisions in un eschew able. Section 437 Cr.P.C., which relates with grant of bail by Magistrate in non bailable offences indicates that the Magistrate can grant bail in non bailable offences with the rider that he shall not grant bail in respect of offences which are punishable with death or imprisonment for life vide Section 437(1)(i) Further rider is that he shall not grant bail if the accused has been previously sentenced for death, imprisonment for life, or imprisonment for seven years or more or he has been convicted on two or more occasions of cognizable offences which are punishable with three years or more but not less than seven years. These two riders u/s 437(1)(i) and (ii) is diluted in cases of accused below sixteen years of age or is a woman or sick or inform vide first proviso to Section 437(i) Cr.P.C. The second proviso provides that the Magistrate may direct the release of any person Who falls within the purview of Section 437(i)(ii) if he is satisfied that it just and proper to do so for any special reasons. There are various other proviso and Sub-sections to Section 437 Cr.P.C. but I am omitting them as they are not very relevant for the controversy at present.

Under The Juvenile Justice (Care And Protection Of Children) Act, 2000, herein after referred to as the Act (Act 56 of 2000), Section 4 deals with Constitution Of Juvenile Justice Board and eligibility of the persons to be it''s members. Section 5, which of relevance in the present context is referred to below:

Procedure, etc. in relation to board (1) The Board shall meet at such times and shall observe such rules of procedure in regard to the transaction of business at its meetings, as may be prescribed.

(2) A child in conflict with law may be produced before an individual member of the Board, when the Board is not sitting:

(3) A Board may act notwithstanding the absence of any member of the Board, and no order made by the Board shall be invalid by reason only of the absence of any member during any stage of proceedings:

Provided that there shall be at least two members including the Principal Magistrate present at the time of final disposal of the case.

(4) In the event of any difference of opinion among the members of the Board in the interim or final disposition, the opinion of the majority shall prevail, but where there is no such majority, the opinion of the Principal Magistrate shall prevail.

A perusal of Section 5(3) indicates that unless all the members of the Board are absent the Board continues to be in existence and no order of the Board can be challenged only on the ground that Board did not constituted all it''s members. However, for final disposal of a case the quorum of at least two of it''s members is essential. This Section 5 thus deals with the business of the Board and how it is to be transacted. Section 12 of The Act deals with Board''s power in matters of grant of bail. It provides

Bail of Juvenile (1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the code of Criminal Procedure, 1973 (2 of 1974 or in any other law for the time being in force, be released on bail with or without surety but he shall no the so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.

(2) When such person having been arrested is not released on bail under Sub-section (1) by the officer in charge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.

(3) When such person is not released on bail under Sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order.

Section 7 of Act is also to be referred to here as that makes the exposition of law more clear. Section 7 provides thus:

(1) When any Magistrate not empowered to exercise the powers of a Board under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence), is a juvenile of the child, he shall without any delay record such opinion and forwarded juvenile or the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding.

(2) The competent authority to which the proceeding is forwarded under Sub-section (1) shall hold the injury as if the juvenile or the child had originally been brought before it.

From a joint reading of all the above sections of the Act, in conjunction with each other, it is conspicuously clear that for passing of interim orders like bail, remand etc. full quorum of the Board under the Act Is not required and the presence of one of it''s member is sufficient. Sub-section 5(3) provides for such an eventuality. Under that Sub-section, absence of any member can be because of any reason, which may include reason for resigning also. The said Sub-section also provides that no order of the Board shall be invalid only by the reason that any of it''s member was absent during any proceeding. The requirement of Act is that for final disposal of a case the quorum should be of at least two members to be present.

Coming to the facts of the present application it is to be noted that it has not been averred anywhere that there is no member of the Board. The only ground, which it taken in this application is that one of the member of the Board, has resigned and therefore the Board is not functioning. To my mind resignation of one of the member of the Board does not make the Board non functional. As has been discussed above the bail prayer of the applicant can be considered even by one member. Thus the prayer of the applicant that CJM be directed to consider the bail of the applicant cannot be allowed against the provisions of the Act. If the applicant wants he can move his bail application before the Board who is under the legal duty to consider his prayer for bail.

In view of the preceding analysis of law and of facts, this application lacks merit and deserves to be dismissed and is here by dismissed.