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Whether an application for anticipatory bail under Section 438 can be maintained by juveniles or not? – Gujarat High Court

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A Single Judge Bench of Justice A.Y. Kogje considered the matter in depth with regard to maintainability of the application and allowed the same by holding that personal liberty of an individual is at the highest pedestal. The Act separately provided for the children is for their benefit and cannot be understood to curtail the rights which are otherwise ordinarily available to the individuals.

This is an application by the applicant under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail. The application is filed through the brother of the proposed accused who is aged 17 years and apprehends that he may be falsely involved in the offence on account of the previous enmity with the accused No. 1 though applicant is not named as an accused in the FIR.

The application essentially is for anticipatory bail of child in conflict with law. The State raised question of maintainability of this application and therefore, the issue comes for consideration as to whether an application for anticipatory bail under Section 438 can be maintained by child in conflict with law more particularly considering the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The personal liberty of an individual is at the highest pedestal and the personal liberty of a juvenile cannot be considered to be anything lower. Right of an individual to a legal recourse is also fundamental for an individual and has to be so if not with more vigour for a juvenile.

An application was filed before the 8th Additional District and Sessions judge, however, on account of maintainability, the application was not entertained. The applicant submitted that the he is not involved in the offence and therefore also, the complainant has not named him in the offence however apprehension of arrest has arisen due to previous incident which occurred between accused No. 1 regarding pet dog for which in the offence accused No. 1 and/or other co-accused named in the FIR are likely to name the present applicant as an accused.

The applicant furnished a video footage to the IO as well as to the Sessions Court where the entire incident was seen and no role of the applicant was coming out in that.  Reliance is placed upon the decision of Punjab and Haryana HC in the case of Krishan Kumar Minor through his mother v. State of Haryana to indicate that the High Court had exercised the discretiongranting pre-arrest bail. Reliance is also placed upon the decision inthe case of Kumari Shivani and another v/s. State of M.P.[1], where the anticipatorybail to the minor was granted. Reliance is also placed upon the

The Court considered submissions of parties and perused the documents placed on record.  The question requires to be addressed is whether application for anticipatory bail under Section 438 of the Code can be maintained by a juvenile or not. The foundation for the contention raised at the behest of the State is the language of Section 438 of the Code which is required to be read with Sections 10 and 12 of the Act, 2015. It has been argued that for maintaining application under Section 438 of the Code there has to be an apprehension of arrest of a person, whereas provisions of Section 10 of the Act, 2015 provides for in no case, a child alleged to be in conflict with law shall be placed in a police lockup or lodged in jail and as in case of a child in conflict with law there is a complete bar for placing the child in police lockup or to be lodged in jail. There is no apprehension of arrest and therefore, Section 438 of the Code cannot be invoked.

It would be necessary to also take into consideration the provisions of Section 12 of Act, 2015 which provides for bail to a person who is apparently, a child alleged to be in conflict with law. Section 12 of the Act, 2015 provides for release on bail with or without surety or placed under the supervision of a probation officer or under care of any fit person. The proviso to Section 1 states that such person shall not be so released if there appear reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or release of such person would defeat the end of justice. Such reasons, which Board will have to be recorded in denying the bail to such person who is apparently child in conflict with law. Sub-Section 2 provides for when such person who is apprehended and is not released on bail then such person has to be kept only in observation home until the person is brought before the Board. Sub-Section 3 provides that when such person is not released on bail an order will have to be made by the Board to send him in a observation home or a place of safety during the pendency of the inquiry and Section 4 provides that when a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of conditions of bail.

The conjoint reading of Sections 10 and 12, in the opinion of the Court, places the word “apprehension” used in Section 10 of the Act, 2015 at par with and synonyms to “arrest” used in Section 438 of the Code. Therefore, though methods different Acts are provided for to deal with juvenile/child in conflict with law, still the methodology provided for apprehending the child in conflict with law curtails the liberty of such child and is subjected to various stages as provided particularly in Sections 10 and 12 of the Act, 2015.

The Court opined that the languages of the Sections of the Act, 2015 do not carve out a complete bar or the right of an individual under Section 438 of the Code and by implication takes out child in conflict with law from the purview of Section 438 of the Code.

Section 1(4) of the Act, 2015 though begin with non-obstante clause provides for the application of Juvenile Justice Act to all matters concerning children in conflict with the law. However, thereby, the object of the Act is to provide something more that is already provided for in the ordinary law. The Act which is separately provided for the children is to Act for the benefit of the children and cannot be understood to curtail the rights which are otherwise ordinarily available to the individuals.

One more reason in support of holding application under Section 438 of the Code to be maintained is the language used by the Legislature. There is no expressed bar to exercise powers under Section 438 of the Code in the entire Act, 2015. In absence of expressed bar of application of Section 438 of the Code, there is no reason to imply such bar more particularly in the facts of the present case where the applicant who is juvenile is not even named as an accused and has raised an apprehension for being impleaded on extraneous consideration.

The Court also alleged that the contention by the applicant for his apprehension on affidavit that the accused who has axe to grind against the applicant is likely to name him as an accused to falsely implead him has not been denied in any manner either before the Sessions Court or before this Court by the Investigating Agency.

Therefore, the court allowed the application.


[1] 2009 SC OnLine MP 4803

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