# Rahul v. State of U.P. and another

- **Citation:** (2007) 2 ILRA 422
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-02-22
- **Case number:** Criminal Misc. Application No. 9728 of 2006
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-v-state-of-u-p-and-another-40930
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 437readwith javenalie justice (care and
protection of children) Act 2000-accused
below 16 years of age-seeking direction
-the Magistrate concerned to consider
the bail application under Act of 2000-as
one member of the Board resigned-heldsuch application can be considered even
by one member-it does not make the
Board
non
functional-requires
no
direction by High Court.

Held: Para 10

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 had 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.

## Text

422 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
13. A copy of this order be sent by
the Registry forthwith to Addl. Chief
Judicial Magistrate through District and
Sessions Judge, Agra for information and
compliance.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.02.2007

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No. 9728 of 2006

Rahul

...Applicant
Versus
State of U.P. & another ...Opposite Party

Counsel for the Applicant:
Sri S.R. Verma

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 437readwith javenalie justice (care and
protection of children) Act 2000-accused
below 16 years of age-seeking direction
-the Magistrate concerned to consider
the bail application under Act of 2000-as
one member of the Board resigned-heldsuch application can be considered even
by one member-it does not make the
Board
non
functional-requires
no
direction by High Court.

Held: Para 10

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 had 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.

(Delivered by Hon'ble Vinod Prasad, J.)

1. The applicant has filed this
application under section 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.

2. From the facts it seems that the
applicant is an accused for offence under
section 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.

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

4. Learned counsel for the applicant
has mainly argued that there is no bar in
Cr.P.C. under section 437 for considering
the bail of a juvenile if the Juvenile
Justice Board is not functioning. He
further contended that under section 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.
2 All] Rahul V. State of U.P. and another
423
5.

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

6. For appreciating the submissions
of the counsel for the revisionist a
scrutiny of the relevant legal provisions in
un eschewable. 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 under
section 437 (I) (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.

7. 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:-

"5. 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."

8. 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
424 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the Act deals with Board's power in
matters of grant of bail. It provides thus:-

"Bail of Juvenile (1) When any
person accused of a bailable or nonbailable 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 not be 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 subsection (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."

9. 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 or at least two
members to be present.

,
10. 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 had 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
2 All] Udaiveer V. State of U.P. and others
425
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.

11. In view of the proceeding
analysis of law and of facts, this
application lacks merit and deserves to be
dismissed and is here by dismissed.
Application dismissed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2007

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE R.N. MISRA, J.

Criminal Misc. Writ Petition No. 15622 of
2006
with
Criminal Misc. Writ Petition No. 15687 of
2006, Criminal Misc. Writ Petition No.
1190 of 2007, Criminal Misc. Writ Petition
No. 9510 of 2006, Criminal Misc. Writ
Petition No. 1974 of 2007, Criminal Misc.
Writ Petition No. 14711 of 2006, Criminal
Misc. Writ Petition No. 15624 of 2006,
Criminal Misc. Writ Petition No. 13109 of
2006, Criminal Misc. Writ Petition No.
15721 of 2006, Criminal Misc. Writ
Petition No. 10358 of 2006, Criminal Misc.
Writ Petition No. 14524 of 2006, Criminal
Misc. Writ Petition No. 14974 of 2006,
Criminal Misc. Writ Petition No. 9903 of
2006

Udaiveer

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rahul Chaturvedi

Counsel for the Respondents:
Sri W.H. Khan
Sri Rajendra Kumar Mishra
Sri V.S. Mishra
Sri A.K. Sand
Sri Ranjeet Saxena
A.G.A.

Constitution of India, Art. 226-Petition
for Quashing F.I.R.-stay of arrest-offence
under section 135 of Electricity Act,
2003-earliar High Court disposed of all
petitions with direction to Police or other
concerned officer to approach before
Magistrate
seeking
direction
for
investigation and warrant of arrest-court
expressed
its
great
concern
with
shocking state of affairs that-no action
taken in furtherance of direction of
Court-electricity
theft
being
noncognizable offence-such negligence on
the part of power corporation resulted
irreparable loss of revenue and immense
suffering to honest consumers direction
issued to approach before the Magistrate
under section 155 (2) of the Codesubmit the progress report in the next
date-the C.M.D. Power Corporation shall
personally appear before the Court.

Held: Para 13

We, therefore think it imperative to now
issue a mandamus directing that that
immediate measures be taken in the
present cases as well as in all other
cases relating to Section 135 of the
Electricity
Act
and
other
related
provisions, in which arrest were earlier
stayed or are sought to be stayed, to
immediately file applications before the
Court concerned for investigations and
arrests of the accused under section
155(2) P.C within three weeks. The
compliance report
in
all the cases
mentioning details of all the cases
relating to power thefts and the dates
when the applications have been moved