Child In Conflict With Law Can Apply For Anticipatory Bail U/S 438 CrPC, Sec 12 (1) JJ Act Not A Bar :High Court Of Kerala [Read Order]

Can a child in conflict with law apply for anticipatory bail? And is an application for anticipatory bail at the instance of a child in conflict with law maintainable before the high court or the Court of Session?

Justice R Narayana Pisharadi of Kerala High Court has decided the questions as he held that a child in conflict with law can very well apply for anticipatory bail as there is nothing in the Juvenile Justice (JJ) Act which bars him/her from doing so.

He also held that an application for anticipatory bail under Section 438 of the Criminal Procedure Code at the instance of a child in conflict with law is maintainable before the high court or the Court of Session.

These two questions faced the high court as a minor identified as 'Mr X' moved a pre-arrest bail plea.

The minor was accused of being involved in an attack on a person by some 50 people with deadly weapons on March 31, 2018.

The minor was accused of wrongfully restraining the complainant while the other accused assaulted him with an intention to kill.

The minor represented by advocates T Madhu and CR Saradamani moved the court for anticipatory bail. The State of Kerala was represented by Public Prosecutor O Chandrasenan.

Section 438 CrPC makes no distinction b/w arrest and apprehend

While considering his plea, Justice Pisharadi also considered the Madras High court decision in K Vignesh vs State wherein the court has given importance to the fact that Section 10 of the JJ Act provides for apprehending a child in conflict with law by the police and not for arresting him and in the absence of any arrest, no question of invoking the provision contained in Section 438 of the Code arises.

"That court (Madras HC) is of the view that since a child in conflict with law cannot be arrested, he/she need not apply for anticipatory bail. With great respect, I am not in a position to agree with this view," said Justice Pisharadi.

"Section 10 of the Act empowers the police for apprehending a child alleged to be in conflict with law. It does not provide for arresting a child alleged to be in conflict with law. Section 46(1) of the Code deals with how arrests are to be made. It provides that in making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. Apprehending a person necessarily involves touching or confining the body of that person or submission of the person to the control of the police officer. Therefore, apprehending a person involves arrest of the person. Apprehending a person curtails his personal freedom and liberty. In my view, merely for the reason that Section 10 of the Act provides for apprehending a child in conflict with law and not for arresting him, it cannot be held that an application under Section 438 of the Code by him/her is not maintainable,” he added.

Sec 12 (1) JJ Act doesn’t bar child in conflict with law from invoking Sec 438 CrPC

The court also considered the question whether Section 12(1) of the Act creates a bar for the application of Section 438 of the Code.

It held that Section 12 (1) JJ Act does not take away the jurisdiction of the high court or the Court of Session under Section 438 of the Code even by implication.

“As per Section 12 of the Act, when any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before the Juvenile Justice Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, or in any other law for the time being in force, be released on bail unless the Board is satisfied that there are reasonable grounds for believing that granting bail to him is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice. Section 12(1) of the Act, to a large extent, obliterates the distinction between a bailable offence and a non-bailable offence as far as a child in conflict with law is concerned because whatever be the nature of the offence, bailable or non-bailable, he is entitled to be released on bail unless the proviso to that provision applies. The question is whether Section 12(1) of the Act, for that reason, creates a bar for the application of Section 438 of the Code”.

Section 12(1) of the Act deals with a situation where a child in conflict with law is apprehended or detained by the police or appears or brought before the Board. It deals with the procedure to be followed after apprehending a child in conflict with law. When a child in conflict with law is apprehended or detained or appears or brought before the Board, the provision contained in Section 12(1) of the Act comes into play. The expression "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)" in Section 12(1) of the Act is applicable to granting of bail to a child who is alleged to be in conflict with law after his apprehension or detention by the police or appearance or production before the Board.

“It does not deal with a situation before apprehending a child in conflict with law. In other words, this provision does not deal with a situation before the apprehension or detention of a child in conflict with law by the police or his appearance or production before the Board. Therefore, the provision contained in Section 12(1) of the Act does not take away the jurisdiction of the High Court or the Court of Session under Section 438 of the Code even by implication.

The court also referred to a judgment of the Chhattisgarh high court in Sudhir Sarma vs State of Chhattisgarh, wherein it was held that “there is no warrant for conclusion that non obstante clause contained in Section 12 of the Act of 2015 completely excludes the availability of remedy of applying for grant of anticipatory bail by a CICL, who is apprehending his arrest on the accusation of commission of any offence. The only provision for grant of bail as contained under Section 12 of the Act of 2015, which deals with application for grant of bail by a CICL applies, when he is apprehended or detained by the police or appears or brought before the Board on the allegation of having committed a bailable or non bailable offence”.

Justice Pisharadi said, “I am in respectful agreement with the aforesaid view. At this juncture, it is to be noticed that in Gopakumar v. State of Kerala, while considering the provisions contained in the Act of 2000, this Court has held that a juvenile in conflict with law apprehending arrest in a non-bailable offence, no doubt, will be entitled to seek the discretionary relief of pre-arrest bail envisaged under Section 438 of the Code because that Section takes within its ambit 'any person' to seek such relief when he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence.”

“The upshot of the discussion above is that an application for anticipatory bail under Section 438 of the Code at the instance of a child in conflict with law is maintainable before the High Court or the Court of Session,” concluded Justice Pisharadi.

While granting bail to child in conflict with law, don’t impose conditions violative of JJ Act

The high court also expressly stated that while granting anticipatory bail to a child in conflict with law, the court shall not impose conditions which are violative of or are not in conformity with the provisions of the Act.

“The court shall not impose conditions which are against the object and spirit of the Act. For example, the court shall not direct the child in conflict with law to appear in the police station”.

While granting anticipatory bail to Mr. X, the court said, “In the instant case, the non-bailable offence alleged against the petitioner and the other accused is under Section 307 IPC. However, the role of the petitioner in the incident, as alleged by the prosecution, is only that he wrongfully restrained the victim. The prosecution has no case that the petitioner was armed with any weapon or that he used any weapon to attack the victim. He has got no criminal antecedents. The prosecution has no case that release of the petitioner is likely to bring him into association with any known criminal or that his release would defeat the ends of justice. In these circumstances, I find that the petitioner can be granted the benefit of anticipatory bail.”

The court ordered that Mr. X be released on bail on execution of a bond for Rs.10,000 each by two sureties, who shall be his parents or other close relatives, in the event of his apprehension/arrest by the police and that he shall appear before the Juvenile Justice Board concerned as and when he is called upon to do so.