Composition of the JJB^[2]: The JJB consists of a judicial magistrate of first class and 2 social workers, one of whom must be a woman. The Act also prescribes situations when a person shall not be eligible to be appointed as a member of the board. Further, within 60 days of appointment, the state government has to ensure that induction training has been given to the members. The JJB is responsible for determining the appropriate course of action for juveniles who are found to be in conflict with the law. This includes deciding whether to release them on bail or to send them to a special home for rehabilitation.^[3] It has been held by the different High Courts that the stage of interaction of the juvenile with the JJB is of crucial importance; it should not be bypassed by way of allowing an anticipatory bail under section 438 of the Act.^[4]

Under the JJ Act, bail, with or without sureities, is the norm. Except under the situations mentioned under Section 12 of the Act, bail cannot be denied to the juvenile. Further, the Act mandates that under no situation can a child be kept behind bars. Section 12 makes no distinction between bailable and non-bailable offences. The merit of the case or the gravity of the offence is no ground to reject bail. Bail is to be provided with or without surities.

The Section also states that in case bail is not allowed, the child can be sent to an observation home by the police officer in charge of the station. The JJB may send the child to a safety ^[5] or an observation home. A child has to be produced within 24 hours before the Juvenile Justice Board. The Delhi High Court has held that even if the child is not apprehended, he has to be produced before the JJB within 24 hours as soon as he becomes subject to the process under the JJ Act.^[6]

The Juvenile Justice Board has been vested with vast powers and responsibilities under the JJ Act and the Model Rules. Rule 10 (1) (i) of the Juvenile Justice (Care and Protection of Children) Model Rules 2016 ^[7] provides the Juvenile Justice Board with the authority to resolve the case during the first production of the child if it appears to lack foundation. Additionally, Rule 10(2) imposes a crucial obligation on the Boards to conduct a summary inquiry, as the next hearing date depends on it. The JJB can dispose off a case if the child’s involvement appears to be unfounded or if it’s a petty offense. On the date of the first production, the board can pass orders as it deems fit, including orders under sections 17 and 18 of the JJ Act. In case the board doesn’t exercise its powers under these sections, it must order a social investigation report to be prepared. Further, the Section makes it clear that in case the juvenile is not able to comply with the bail order within 7 days, the JJB must modify the terms of the bail bond.

Anticipatory Bail Under The JJ Act

The Act does not expressly bar the application of section 439 CrPC. The Courts, however, have interpreted it differently. While some Courts have held since the Act is a beneficial piece of legislation and protection under general laws shall be available to juveniles, others have maintained that the JJ Act being a special legislation has to be construed in the light of the objectives for which it was passed. Allowing anticipatory bail, as per the second school of thought, would defeat the purpose of the Act.

Anticipatory Bail Allowed

In Raman and Anr. v. State of Maharashtra^[8], a referrence was made to the Bombay High Court to decide whether a Child in Conflict with Law can file an application for anticipatory bail under s. 438 of the CrPC. Answering in the affirmative, the Court made some important observations about Sections 10, 12 of the JJ Act and s. 438 of the CrPC. The argument for the State in this case was based upon Article 14 of the Constitution and Ss. 10 and 12 of the JJ Act being a complete code in itself. It was argued that in case of “apprehension” of a child or a CIL under the JJ Act, the provisions of section 438 CrPC would not apply as s. 10 of the JJ Act begins with a non-obstante clause. The applicants had argued that “person” as defined under the IPC, 1860, would include a child and a CIL and since section 438 of the CrPC mentions “any person”, the benefit of the section would be available to a child and CIL also. This argument was accepted by the Court. The argument that Ss 10 and 12 of the JJ Act is a complete code in itself was rejected. It was held that the sections refer to the stage of post apprehension and not pre apprehension. Further, CrPC makes no distinction between arrest and apprehension. Both the words are used synonymously under sections 57 and 58, and the effect of both, arrest and apprehension, is to curtail the liberty of the person. The Court took note of section 3 of the JJ Act that places a presumption of innoncence on a child in conflict with law.

Further, the Court referred to the judgment in Gurubaksh Singh Sibbia^[9] to hold that the provision of s 438 CrPC must be given a beneficial construction. In Sushila Aggarwal v. State of NCT of Delhi^[10], the Supreme Court had emphasised upon the importance of Section 438 in protecting the life and liberty of a person and ohad observed that the provision of anticipatory bail is “pro liberty”. Referring to this judgment, the Bombay High Court held that there is no reason why benefit of section 438 may be denied to a child. As per the Court, Sections 10 and 12 take effect "after" a CIL is found. Accordingly, they speak about the "post" apprehension stage. The "pre" apprehension stage is not mentioned. Therefore, they are not in conflict with the provision of anticipatory bail under the Code. Only where there is a contradiction between the requirements of Section 12 of the JJ Act and the provisions of the Cr.P.C. does the non- obstante clause utilised in Section 12 come into play. Therefore, the right under section 438 Cr.P.C is available to a juvenile. Referring to section 5 of the CrPC, the Code observed that since the JJ Act does not provide for anticipatory bail expressly, there is no provision in the Act that is inconsistent with section 438 of the CrPC, therefore, the non-obstante clause in Section 10 will not operate in the present discussion.

It is important to note here that the same non-obstante clause was interpreted differently by the Chhatisgarh High Court^[11] The high Court relied upon the Supreme Court’s judgment in Union

of India Vs. G.M. Kokil^[12], and held that since S. 12 contains a non-obstante clause, the provisions under Ss. 437 and 439 of the CrPC would have no applicability in cases under the JJ Act.

In Kureshi Irfan Hasambhai v. State of Gujarat, ^[13] the High Court held that remedy under Section 438 CrPC is available under the JJ Act. The reasons given for arriving at such a conclusion are: (i) liberty of a juvenile has to be protected, (ii) lack of express bar of applicability of s. 438 CrPC under the JJ Act, (iii) mere practical considerations that may arrive due to applicability of s. 12 of the JJ Act even if relief under s. 438 CrPC is granted, cannot operate as a bar on applicability of anticipatory bail. It was also observed that liberty of an individual has to be placed on the highest pedestal and the liberty of a juveline cannot be placed any lower. The right of an individual to “legal recourse is fundamental and has to be so if not with more vigor for a juvenile.”^[14] The 2015 Act was passed by the legislature to provide more protection for children than already provided. Such an Act cannot be interpreted in a way to curtain rights that are otherwise available under other laws.^[15] The Court refered to s. 18 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1983 and held that in cases where the legislature intended to exclude the benefit of S. 438 CrPC, it is explicitly provided so. Similarly, Gujarat Protection of Interest of Depositors in Financial Establishments Act, 2013 was referred. The absense of an express bar on applicability of s. 438 of CrPC led the Court to conclude that the remedy of anticipatory bail is available under the JJ Act.

Anticipatory Bail Rejected

In 2023, the Allahabad High Court ^[16] disagreed with the Bombay High Court’s finding and held that the while there is not a significant distinction between arrest and apprehension, the latter has not been used in the JJ Act to mean arrest. A juvenile’s custody is not punitive in nature and is a protective one. Further, while Sections 436 to 439 lays down different criteria for bail under the CrPC, section 12 of the JJ Act makes no such distinction. Bail has to be granted under the JJ Act if the conditions laid down under the said section are fulfiled. The Court also examined the scope of Section 8 of the JJ Act. As per the Court, the Sessions Court and the High Court cannot meddle with the proceedings under the JJ Act except through way of an appeal or revision. Therefore, for cases covered under the JJ Act, the Court cannot vest itself with the power to grant anticipatory bail under CrPC.

The Madras High Court in K Vignesh^[17], observed that the JJ Act specifies a number of requirements, including active participation in children's health, education, or welfare activities for at least seven years or employment as a practising professional holding a degree in child psychology, psychiatry, sociology, or law. The Principal Magistrate and the Members of the Board go through induction training and sensitization in accordance with the Rules. The JJB is made up of individuals who are child-friendly and are familiar with child psychology. An application for anticipatory bail is not mantainable since CIL cannot be arrested and hence there cannot be an apprehension of arrest. The JJ Act is a self-contained code, both in substantial and procedural terms.

The Punjab and Haryana High Court in X v. State of Haryana^[18], agreed with the Madras High Court on this point and held that the application for bail under section 438 is not maintainable in cases concerning juveniles.

Rashid Rao v. State of Uttarakhand^[19], The Court referred to the statement of objects and reasons of the Act, Section 4 of the Act and Section 12 of the Act. Section 4(1) of the JJ Act gives overriding powers to the provision of the Act in cases of apprehension and detention.

Futher, the Court noted that while generally bail is the rule and jail is the exception, the JJ Act provides that even in non-bailable cases, bail may be granted to the Child in Conflict with law as a matter of right provided he fulfils the conditions mentioned under s. 12(1). In case he fails to fulfil these conditions, bail may be rejected. The Court also took notice of the fact that the applicant in this case had a non-bailable warrant issued against him as we was trying to avoid appearing before the JJ Board.

Mr. Mohammed Bin Ziyad, v. The State of Telangana^[20], the question before the Telangana High Court was whether a child in conflict with law seek anticipatory bail, that too by way of a writ petition. The Court answered in negative. In coming to this conclusion, the Court relied upon a division bench judgment of the Madras High Court which had held that a child in conflict with law has to take benefit of the provisions under section 12 of the JJ Act and an

application under section 482 is not maintable at all. The legislature has deliberately provided a number of safeguards under the JJ Act and since a child cannot be arrested, he need not apply for anticipatory bail.

Tejram Nagrachi Juvenile vs State Of Chhattisgarh,^[21]the Chhatisgarh High Court rejected application of bail stating that the provision for bail is goverened by Section 12 of the JJ Act, Sections 437 and 439 of the CrPC would have no aplicability.

Piyush minor V. State of Haryana^[22], The JJ Act, 2015 is a complete code in itself. A child cannot be arrested, therefore, section 438 CrPC would have no applicability.

Nature Of Detention Under The JJ Act: The Distinction Between “Arrest” And “Apprehension”

An argument often, if not always, advanced by the State counsel against applications filed under s. 438 CrPC is that the remedy of anticipatory bail is provided in cases of “apprehension of arrest”.^[23] Since the JJ Act, 2015 does not use the word “Arrest” and expressly provides under Section 12 that under no circumstances can a juvenile be kept in lock up or a jail, the provision of Section 438 would have no operation.

Arrest defined

In Union of India v. Padam Narain Aggarwal,^[24] the Court noted that “arrest” has not been defined under any statute. The Court then defined it thus, ““Arrest” is thus a restraint of a man's person, obliging him to be obedient to law. “Arrest” then may be defined as “the execution of the command of a court of law or of a duly authorised officer”.”^[25]

While this distinction between “arrest” and “apprehension” has been upheld by some High Courts, there have been instances where such a distinction was held to be arbitrary and artificial.

In K Vignesh, the Madras High Court came to the conclusion that the Legislature was well aware of Chapter V of the Code of Criminal Procedure, 1973, specifically Section 46 of the said code, when it passed the JJ Act. In S. 10 of the JJ Act, the word "arrest" would have been used instead of "apprehend" if the legislature had intended for a police officer to have the authority to do so if a child was in violation of the law. Therefore, the use of “apprehended” instead of “arrested” is intentional to limit the powers of the police officer.^[26]

In Raman v. State of Maharashtra, the Court referred to sections 58 and 59 of the Code of Criminal Procedure, 1973. The title of the sections employ the use of the word “apprehension” yet the body of the sections speak of “arrest”. Therefore, the Code uses the two words interchangeably. The Court was of the opinion that a person's freedom is restricted as a result of being arrested or apprehended. When a child who is in conflict with the law is taken into custody, his freedom is restricted. The findings of Gurubaksh Singh Sibbia judgment, therefore, should be available to juveniles also.

Similarly, in Kureshi Irfan (discussed above), the Gujarat High Court noted that the distnticition between “arrest” and “apprehension” is arbitrary and artificial. The Gujarat High Court refered to the dictionary meaning of the word “Arrest” and “Apprehension”. As per the Court, a conjoint reading of Ss. 10 and 12 would show that the two words are meant to be used synonymously. Similar finding was arrived at by the Bombay High Court in Raman and Anr.

In Minor 'X' v. State of U.P. and Another^[27], the High Court came to the conclusion that the JJ Act is a comprehensive code. Despite some similarities between the terms arrest and apprehension, the milder term of apprehension has been chosen over the other to hammer home the point of enactment of this particular law and to highlight the key distinction from the term arrest in the sense used in other statutes. It seems to be an extremely narrow interpretation of the enactment to state that the term “apprehension” was used in place of arrest to just make the Act child-friendly. To summarise, the typical consequences of a "arrest" are not present. Juvenile custody is a protective measure, not a punitive one.

The model rules clealry specify the requirements of registration for a child care institution. Every CCI must be consist of a management committee ^[28]and a children’s committee^[29] formed according to the rules. The rules clearly state that in a place of safety or a CCI, deparate lodging must be there for children of different age groups. Age, type of offence or level of care needed, physical and mental health, and length of stay will all be taken into consideration when classifying children.^[30] Rule 29 of the rules specify the physical infrastructure that must be made available in a CCI. Furthermore, Rule 29(2) clearly states that under no circumstances can a CCI look like a lock-up or jail. Rule 32 specifies that Every child care facility must have a daily schedule for children that was created in collaboration with the children's committees and is visibly displayed around the facility. Each child must receive milieu-based interventions and individual therapy, which must be offered in all institutions. A "milieu based intervention" is a process of recovery that begins by creating an enabling culture and environment in a facility to make sure that each child's abilities are discovered and they have choices and the right to make decisions about their lives. This intervention has a significant emotional impact on the child because it gives them the opportunity to develop and identify beyond their negative experiences.^[31] Therefore, it is extremely clear that the nature of a CCI is reformative and rehabilitory. It is in no way similar to a lock-up or a jail. Care is taken to ensure that a child does not suffer psychological trauma or harm and is well looked after. The Madhya Pradesh High Court^[32] has observed that The institutions described in Chapter VI of the 2016 Rules are similar to hostels of educational institutions where a juvenile can access basic comforts and necessities like hygiene, a nutritious diet, medical care, clothing, mental assistance, education, and recreational facilities to foster an environment of care, protection, development, and social rehabilitation by adopting a child-friendly attitude. The Court went as far as saying that the It is obvious as day that the amenities provided to a juvenile in the facilities where he or she is kept from the point of arrest or detention until the Board's investigation is complete are similar, if not identical, to the environment and amenities a child enjoys in the parental home.

Whether Anticipatory Bail Should Be Allowed Or Not: An Analysis

The question regarding maintainability of an application filed under Section 438 of the CrPC is not settled. Different High Courts have interpreted it differently.

Arguments allowing application of s. 438 Cr.PC:

1. Procedural Difficulties in Granting Anticipatory Bail

Interaction between the JJB and the juvenile does not necessarily gets bypassed by way of granting the remedy of anticipatory bail. The High Court can grant the remedy subject to the fulfiment of some conditions such as production before the JJB as and when rquired. A similar argument was made in Gurubaksh Singh Sibia^[33]. The Court in that case stated that an order for anticipatory bail does not restrict the police's ability to look into any charges that have been or may be brought against the individual who has been released on bail in any manner, either directly or indirectly. In reality, sub-section (2)(i) and (ii)'s recommendations, which call for the applicant to assist the police and ensure that he won't tamper with the witnesses both during and after the inquiry, are two of the most common conditions included in a directive given under Section 438(1). In addition to providing relief under Section 438(1), suitable conditions can be imposed under Section 438(2) in order to maintain the integrity of the investigation.^[34] Therefore, the High Court or the Court of sessions, as the case may be, while granting anticipatory bail can include the condition that the juvenile must be produced before the JJB.

2. No express exlcusion of s. 438

The parliament while drafting the JJ Act was aware of the provision of s. 438 CrPC. Absence of an express bar on applicability of anticipatory bail would only show that the parliament did not intend to take away this remedy from the juveniles. This reasoning is based on the understanding that the legislature must be assumed to know the law that exists on the statute books when it makes a new law.^[35] Furthermore, since "person" under the IPC includes children and CILs, and since "any person" is included in section 438 of the CrPC, both children and CILs would be eligible for the section's benefits. Moreover, S. 8 of the JJ Act clearly states that the Court of Sessions or the High Court may interefere “when the proceedings come before them under section 19 or in appeal, revision or otherwise”

3. Arrest v. Apprehension: an artificial distinction:

Over-emphasis on the use of the words “apprehension” and “arrest” creates techincal obstances in granting anticipatory bail, which has been accepted as a substantive right. Further, benefical legislations, such as the JJ Act, should be construed keeping in mind the objective of the legislature. The Supreme Court in A.K. Gopalan v. The State of Madras^[36] had defined “personal liberty” as following, “The expression ‘personal liberty’ has wider as well narrow meaning. In the wider sense it includes not only immunity from arrest and detention but also freedom of speech, association etc. In the narrow sense, it means immunity from arrest and detention. The juristic conception of ‘personal liberty’, when used the latter sense, is that it consists freedom of movement and locomotion.” Furthermore, as noted in Raman,^[37]the Code of Criminal Procedure, 1973, does not make a distinction between arrest and apprehension. The effect of both the processes is cutailing of the liberty of an individual.

4. The JJ Act is a beneficial legislation. Where the parliament intended to provide additional remedies to a juvenile, it makes no sense to take away a remedy available under the ordinary law. The application of S. 438 Cr.P.C would take the objective of the JJ Act further by protecting the liberty of the juvenile.

5. Lax and nonchalant attutude of JJBs in dealing with the cases brought before them can cause great trauma and harm to a child’s mental state. Such cases require special attention as the accused are still in their developmental stage and may not have a full understanding of the consequences of their actions. It is, therefore, important to provide them with legal protection and ensure that their rights are not violated. While the Act and the Model rules vest the JJB with powers and responsibilities while dealing with cases under the Juvenile Justice Act, it has been observed that the JJBs are not functioning in a desired manner. The parliamentary committee had noted that the JJBs investigate the cases, transfer, and retransfer them, putting a child under psychological pressure that necessitates reflection. The juvenile justice system failed because there were no services for children in the areas of counselling, casework, therapy, and mediation. Anticipatory bail can be particularly useful in juvenile cases as it allows the accused to seek bail before an arrest is made. This can prevent the accused from being subjected to the trauma of arrest and detention, which can have a detrimental impact on their mental health and overall well-being. Moreover, anticipatory bail can provide some relief to the parents or guardians of the accused, who may be extremely anxious and distressed about the possibility of their child being arrested. By allowing the accused to seek anticipatory bail, the justice system can also prevent unnecessary harassment of the accused and their families.

Arguments against the application of s. 438 Cr.PC:

1. Sections 1(4) and 12 of the JJ Act consists of a non-obstante clause. The clear inference that can be made is that this Act aims to address every issue relating to minor offenders, including their apprehension, custody, and prosecution. Further, s. 4(2) of the CrPC states that all offences under any other law must be looked into, investigated, tried, and otherwise dealt with in accordance with the provisions of the Cr.P.C., subject to any enactment currently in effect governing the way such offences must be looked into, investigated, investigated, tried, or otherwise dealt with. Based on the aforementioned clauses, it can be said that the Cr.P.C. shall only apply in cases where the special statute is silent on a specific subject.

2. Section 438 of the Criminal Procedure Code, 1973 makes a distinction between non bailable and bailable offences. The remedy of anticipatory bail is envisaged only for non-bailable offences. The reasoning seems to be that a person shall be released on regular bail in case of bailable offence under section 436 of the Code. The Juvenile Justice Act, however, makes no distinction between bailable and non-bailable offences. The remedy of bail is available as a matter of right except under the circumstances mentioned under section 12 itself. It is also to be noted that as per the Model Rules, no FIR can be registered against a juvenile in petty cases. An FIR is to be registered only when the juvenile is accused of a heinous offence or he is jointly accused with adults.^[38] The distinction between cognizable and non-cognizable offences, thus, is blurry under the Act.

3. Allowing Anticipatory Bail for minors might do more harm than good, as rejection of the ancitipcatory bail application can result into arrest of the juvenile which is not at all envisaged under the JJ Act.

4. The stage where a minor is produced before the Juvenile Board is of crucial importance. The JJ Board has been entrusted with certain protective and supervisory functions under the Act. Allowing anticipatory bail would enable the juvenile to bypass this stage of interaction. The JJB is a separate body constituted under the JJ Act.

As observed in K Vignesh, the composition and the qualification of the members of the board are completely different than the High Court and Session Court judges. Therefore, the appropriate authority as contemplated by the legilslature to deal with juvenile delinquency is the JJB. While the High Court or the Court of Sessions may take into consideration the police report while deciding on the issue of anticipatory bail, the JJB takes a decision on bail based not just on the police report but other relevant factors too. The members of the JJB are trained in child psychology and are expected to have adequate knowledge about what would be in the best interest of the child.

5. The nature of detention under the JJ Act is protective in nature. Under no circumstances can a person be placed behind the bars. The Act and the model rules lay down requirements that have to be followed by the child care institutions and other institutions under the Act. The detention not being punitive, it cannot be said that the legislature intended to extend the remedy of s. 438 Cr.P.C to juveniles.

6. One of the purposes of the Juvenile Justice Act, 2015 is to keep the juvenile away from the mainstream criminal justice process. An alternative mode of justice dispensation, from apprehension to post-apprehension, is envisaged under the Act. Allowing a traditional remedy provided under the Code of Criminal Procedure, 1973 to operate will defeat the purpose of the Act and would lead to the intermingling of the two systems. Even if the JJBs are not functioning as expected, the appropriate course of action would be to fulfil their deficiencies. The maladies of one law should not be sought to be made good by the application of a totally different law.

Therefore, in a nutshell, it can be argued that Section 438 of the Criminal Procedure Code applies to juvenile cases due to the lack of an express exclusion of Section 438 in the Juvenile Justice Act, the artificial distinction between arrest and apprehension, and the lax approach taken by the Juvenile Justice Boards, it becomes imperative to protect the liberty of the juvenile. The non-obstante provision of the JJ Act and the absence of any distinction between bailable and non-bailable offences under the Act, however, may operate as a bar on the application of Section 438. The interpretation of Section 438's applicability in juvenile proceedings must therefore strike a balance between the needs of the accused, the State, and society. Furthermore, care must be taken to ensure that a harmonious interpretation of the provisions of the Code and the JJ Act is reached.

The author is an Advocate practicing at Delhi. Views are personal.