IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1758 of 2009 NAVNEET KUMAR son of Shri Sanjay Singh, resident of village Mahathi, P.S.-Bibhutipur, Distt.-Samastipur ------------Petitioner. Versus STATE OF BIHAR ------------ 4. 16.2.2010 Heard the parties. Prayer for bail is sought on the ground of remaining of this petitioner in custody for a period more than half of the sentence which can be awarded against him. On merit his prayer was earlier rejected finding his involvement in kidnapping and killing of a seven years boy, dead body was also recovered from petitioner’s room. It is said that petitioner was residing in the room as tenant. It is said that till today no evidence is adduced on behalf of the prosecution in progress of the trial. Taking the same (custody) into consideration I think section 436 A of the Code of Criminal Procedure has been brought into existence through amendment in 2005. Only exceptions are there for refusal of bail to the accused, who comes under the purview of Section 436 A of the Code of Criminal Procedure and that is only to the extent that reasons are to be recorded. But it is for the court to look into if any relief to the petitioner can be given due to provision of section 436 A of the Code of Criminal Procedure. In clear words accused of any case ought to be enlarged on bail if in course of investigation or enquiry or trial he remains in custody for a period of more than half of the sentence which can be awarded. But I think legislature was cautious and cared giving no benefit to harden - 2 - criminals of specific nature. So relief under section 436A of the Code of Criminal Procedure is made not available to offenders of an offence in which punishment of death is one of the punishments. Section 436 A of the Code of Criminal Procedure is as follows :- “ 436A.Maximum period for which an undertrial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties : Provided that he Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. ” Now the submission of the learned counsel is that Juvenile Justice Board is not empowered to pass any order to keep the petitioner in custody beyond a period of three years, more than half of which he(petitioner) remained in custody. According to the learned counsel, petitioner remained in custody since 14.8.2007, i.e., for a period more than 2 ½ years. But the offence for which he is alleged is under section 302 of the Indian Penal Code also for which one of the punishments is death sentence. So the period of custody of three years if is minimized under the Juvenile Justice ( Care and Protection of - 3 - Children) Act cannot be linked with this provision. Section 436 A of the Code of Criminal Procedure is applicable in all nature of cases not being an offence for which the punishment of death has been specified as one of the punishment under that law. No doubt if the case of the juvenile is not decided within a period of three years, he will have every right to be released but never under section 436 A of the Code of Criminal Procedure. It is worthless to mention here that the benefit which can be given under section 12 of the Juvenile Justice ( Care and Protection of Children) Act also is considered and prayer has been refused. Accordingly, This application is dismissed. Sudip/A.F.R. ( Mandhata Singh, J. )