No Bar To Grant Anticipatory Bail To Child In Conflict With Law: Punjab & Haryana High Court Follows 'Broader View' Amidst Conflicting Opinions

Taking a "broader view", the Punjab & Haryana High Court has held that there is no bar under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) to grant bail to Child In Conflict with Law (CICL).

Acting Chief Justice GS Sandhawalia and Justice Lapita Banerji said, "Once a protection is granted to adults as such under Section 438 Cr.P.C. on the ground of apprehension of arrest, we do not seem any tangible reasons as to why the moment a juvenile is under the threat of apprehension, why the benefit of the provisions of Section 438 Cr. P.C. should be denied."

In the absence of any exclusion as such that the provisions of Section 438 Cr.P.C. would not apply, we do not see any valid reason as to why any restrictive view is to be taken. It is time and again held that bail is the rule and denial is the exception and for a child to be placed at a disadvantage on account of the fact that the word “arrest” has not been mentioned in the Act does not do any justice to the purpose of the Act, added the Court.

Not using the word "arrest" in the Juvenile Justice Act is "a conscious act of the legislation keeping in mind the beneficial provisions as such the omission as such has been made" and it would not debar the children from the benefit of the provisions of Section 438 of the CrPC, the bench clarified.

The Court was hearing a batch of 33 petitions regarding the maintainability of the anticipatory bail application by a juvenile under Section 438 Cr.P.C. since conflicting views have been taken by Single Judges of the Punjab & Haryana High Court and other High Courts in view of provisions of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015

 After hearing the submissions, the Court noted that the different High Courts have taken conflicting opinions on the issue and there is a "Broader View" and "Restricted View."

 Broader View Taken By Other High Courts

The Court noted that Chattisgarh High Court in Mohan vs. State of Chhattisgarh, [2005 (1) CGLG 320], 

"The application for grant of anticipatory bail under section 438 of the Code of Criminal Procedure, 1973 at the behest of CICL before the High Court or the Court of Sessions is maintainable under the law and the said remedy is not excluded by operation of Section 12 of the Act of 2000 or Section 12 of the Act of 2015."

The Division Bench of the Calcutta High Court in Miss Surabhi Jain (Minor) and others vs. The State of West Bengal [C.R.M. 405 of 2021]  took a similar view while keeping in mind that several discourses were made at the international level and on stepping in of the United Nations appreciating the holistic approach regarding development, care and protection of the children who were coming in conflict with law under the Juvenile Justice System.

The bench noted that it was held that the word 'arrest' was not used in the 2015 Act and the word 'apprehension' having been used would amount to curtailing the liberty of a person.

Resultantly, the judgment in Gurbax Singh Sibbia's and Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) referred to that a pro-liberty view is to be kept in mind against arbitrary arrests and humiliation. The lack of inconsistency between the 2015 Act and the provisions of Section 438 Cr.P.C. were dwelled upon to come to the conclusion that "the CICL could not be denied the benefit as such while holding that the due importance to the considerations provided under Section 12 of the 2015 Act is to be kept in mind and would have to be followed," it added.

Reliance was also placed on Allahabad High Court's decision in Mohammad Zaid and others vs. State of U.P. and others, [2023 (248) AIC 923] wherein it was held that, 

"A child in conflict with law will have an equal and efficacious right to seek his remedy of anticipatory bail under Section 438 Cr.P.C. like any other citizen, but with the restrictions imposed in the said provision itself."

Restricted View Taken By Other High Courts

The Court also referred to the restricted views taken by various High Courts, which were of the opinion that the anticipatory bail application by the Juvenile under Section 438 Cr. P.C will not be maintainable.

K. Vignesh vs. State, 2017, the Division Bench of the Madras High Court, while deciding the reference, came to the conclusion that there are lot of safeguards provided to the CICL under the Act and he could not be arrested. Therefore, the legislature did not consciously empower the police to arrest the child and, therefore, the application under Section 438 Cr.P.C. was not maintainable, it noted.

High Court Follows Broader Prospective In Present Case

While following the broader view, the High Court said that "Article 39 of the Constitution provides that certain principles of policy are to be followed by the State, whereas sub-clause (3) provides that the State, in principle, shall direct its policies towards securing the health and strength of workers, men and women and the tender age of children would not be abused. Similarly, Article 15(3) of the Constitution provides that the State shall endeavour prohibition of discrimination on the ground of religion, race, caste, sex or place of birth and gives the powers and protects the State from making a special provision for women and children."

Thd Court said that the word "arrest" is deleted from the JJ Act, keeping in mind the provisions in the Act and, therefore, there is only the word “apprehension” which has been used as a precursor to the final arrest.

"Once a protection is granted to adults as such under Section 438 Cr.P.C. on the ground of apprehension of arrest, we do not seem any tangible reasons as to why the moment a juvenile is under the threat of apprehension, why the benefit of the provisions of Section 438 Cr. P.C. should be denied," it added.

The bench highlighted that "it is time and again held that the bail is the rule and denial is the exception and for a child to be placed under disadvantage on account of the fact that the word “arrest” has not been mentioned in the Act does not do any justice to the purpose of the Act. Rather it is a conscious act of the legislation keeping in mind the beneficial provisions as such the omission as such has been made and it would not debar the children from the benefit of the provisions of Section 438 of the Act." 

Referring to Section 12 of the JJ Act read with Sections 14, 15, and 101 of the JJ Act, the Court said that "it would go on to show that the right of the child as such who has committed a non-bailable offence and is liable to be apprehended or detained for purposes of to be brought before the Board provides an exception that he shall be released on bail notwithstanding anything contained in the Cr.P.C. or in any other law."

Thus, further protection had been provided under Section 12 that if there are any exceptions as such regarding the provisions which have been made in the Cr.P.C., the same would not come in the way of a child who is to seek the benefit under Section 12, it added.

The Court opined that "the nature and gravity of the accusation, the antecedents of the applicant and the possibility of fleeing from justice etc. are the factors which are to be kept in mind under Section 438 Cr.P.C. in case of a normal accused which would not stand in the way of CICL."

In light of the above, the Court held that "we are of the considered opinion that the broader view has been laid down by the Chhattisgarh High Court in Sudhir Sharma's case (supra) and the Calcutta High Court in Surabhi Jain's case (supra) and the Aurangabad Division Bench of the Bombay High Court in Raman's case (supra) alongwith the judgment of the Allahabad High Court in Mohammad Zaid's case (supra) would be the right way as such to follow."

 Title: Jatin v. State of Punjab

2024 LiveLaw (PH) 189

Tanu Bedi, Advocate (Amicus Curiae) with Vibhu Agnihotri, Advocate and Abhimanyu, Advocate.

Advocates G.S. Sidhu, Amit Arora, Rahul Arora, Advocate, Ankit Rana, Sushil Bhardwaj,  Ankur Bansal,  B.S.Mann, Prabhjayot Singh Chahal, Abhishek Sahu,  B.S.Bhalla,  Pradeep Virk, Advocate, For the petitioners.

Pawan Girdhar, Addl. Advocate General, Haryana and Apoorv Garg, Sr. Deputy Advocate General, Haryana.

 A.D.S.Sukhija, Additional Advocate General, Punjab.

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