JJ Act| 'Child In Conflict With Law Can't Seek Anticipatory Bail U/S 438 CrPC': Allahabad HC Disagrees With Bombay HC's 2022 Ruling

The Allahabad High Court has observed that a child in conflict with the law as per the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) can not file an application under Section 438 of CrPC seeking anticipatory bail.

"In case, the provisions of Section 438 Cr.P.C. are allowed to hold the field in the matters of juvenile, the aim and object of the Act shall be defeated. The interpretation of law cannot be devised in a way, so as to put a hurdle in the broader and solemn aim which is sought to be achieved by this enactment," the Court said.

With this, the bench of Justice Jyotsna Sharma disagreed with the Bombay High Court's last year ruling in the case of Raman & Manthan v. The State of Maharashtra 2022 LiveLaw (Bom) 253 and instead found weightage in the ruling of the Allahabad High Court in the case of Shahaab Ali and Another vs. the State of U.P.; 2020 (2) ADJ 130

"I am of the firm view that the Juvenile Justice Act is a comprehensive legislation containing all provisions with regard to children in conflict with law and that the provisions of Section 438 Cr.P.C. have no application being extraneous and incompatible with the scheme, as well as aim and objective, sought to be achieved by the Act," the Court aid as it dismissed an anticipatory bail plea moved under section 438 CrPC by the father of a minor (child in conflict with the law) facing FIR under Sections 307, 504 and 506 IPC.

The case in brief

While filing the anticipatory bail under Section 438, the Counsels appearing for the minor argued that a minor cannot be deprived of protection available under Section 438 Cr.P.C. just because he is not an adult. On the other hand, this contention was ardently opposed by the State.

In view of the conflict in the views of both the parties, the Court examined the question before it as it whether a CCL can seek anticipatory bail under Section 438 CrPC. 

Court's analysis

At the outset, the Court perused the objectives of the JJ Act and noted that it seeks to deal exhaustively with all matters concerning child offenders including their apprehension, detention, and prosecution. Further, taking into account the content of Section 4 (2) CrPC, the Court observed that the provisions of Cr.P.C. shall apply only where the special enactment is silent on a particular issue.

Against this backdrop, the Court examined the issue as to whether the applicability of Section 438 Cr.P.C. has been ruled out by implication or otherwise in cases where the Juvenile Justice Act, 2015 is applicable or not?

The Court observed that under Section 8 (1) of the Juvenile Justice Act, the Juvenile Justice Board has been given exclusive power to deal with all the proceedings under the Act relating to children in conflict with law and in the Act, no window has been left open for meddling with the affairs of juvenile offenders in terms of provisions of Section 438 Cr.P.C.

"The Juvenile Justice Act has no where said that Section 438 Cr.P.C. shall have application to the children in conflict with law. Though Section 8(2) of the Juvenile Justice Act gives similar powers to the High Court or the Children Court but only when matter is brought before it in appeal or revision or otherwise. There is no express provision empowering Children Court or Sessions Court or High Court to assume jurisdiction on itself for grant of anticipatory bail by virtue of provisions of Section 8(2) of the Juvenile Justice Act," the Court observed.

Further, the Court also stressed that there is some commonality between the term arrest and apprehension, however, a milder term of apprehension has been preferred (for a child in conflict with the law) over the other to clinch the idea behind the enactment of this special law and to bring home the essential difference with the term arrest in the sense used in other statutes as the custody of a juvenile is not punitive in nature and is a protective one.

In this regard, the Court also took into account the mandate of Section 12 of the JJ Act [Bail of juvenile] to note that it does not provide for any distinction for applicability of provisions of bail on the lines as has been maintained under the provision of Section 436 to 439 of Cr.P.C.

The Court added that the natural and literal meaning of Section 12 indicated that notwithstanding the category of offences for which the child in conflict with law has been produced or brought before or appeared before the Board, he may be released on bail or he may not be so released and placed under the supervision of a probationary officer or under the care of any fit person and when he is not being released, he can only be kept in an observation home or a place of safety.

"The provisions as discussed above are fundamentally different from the provisions of bail under Cr.P.C. The apprehension of arrest which is a necessary pre-requisite for applicability of Section 438 Cr.P.C. is altogether out of place in cases of juveniles. In my view the word "arrest" is not replaceable by the word "apprehension" in the sense used under the provisions of the Juvenile Justice Act," the Court added.

Consequently, the Court held that a distinct and special procedure with regard to a child offender has been put in place in the Juvenile Justice Act, 2015 so as to comprehensively deal with all the aspects which may arise where a criminal case, whether initiated by the filing of FIR or not begins and the Act contains many indicators which rule out forming of a view or an opinion that provisions of anticipatory bail shall apply to protect the liberty of a juvenile.

Appearances

Counsel for Applicant: Rakesh Pathak, Shashank Shekhar Tiwari

Counsel for Opposite Party: G.A., Prem Shankar Pandey

Case title - Minor 'X' Through His Guardian/Father, District Prayagraj vs. State of U.P. and Another [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11542 of 2022]

Case Citation: 2023 LiveLaw (AB) 60

Click Here To Read/Download Order