JJ Act | 'Juvenile Can Seek Anticipatory Bail U/S 438 CrPC; Inquiries U/S 14/15 Can Be Done While He Is On Bail': Allahabad HC Answers Reference

The Allahabad High Court (Division Bench) recently held that a child in conflict with the law has an equal and efficacious right to seek his remedy of anticipatory bail under Section 438 CrPC like any other citizen but with the restrictions imposed in the said provision itself.

While answering a reference made by a single judge, the bench of Chief Justice Pritinker Diwaker and Justice Samit Gopal further held thus:

• Section 1(4) of the Act, 2015 does not exclude the application of Section 438 Cr.P.C. to a child in conflict with the law after the F.I.R. is registered against him as there is no provision contrary in the Act 2015 to the Cr.P.C. to make it inapplicable.
• A juvenile or a child in conflict with law can be arrested and/or apprehended if such a need arises, but he cannot be left remedy-less till the time of his arrest and/or apprehension. He can explore the remedy of anticipatory bail under Section 438 Cr.P.C. if a need arises. The remedy of bail under Section 12 of the Act 2015 can be invoked by a juvenile or a child in conflict with law at the appropriate stage.
• An inquiry is required to be conducted by the concerned Board for declaring a person as a juvenile and then extending the benefit of the beneficial legislation to him.
• The required enquiry under Section 14 and preliminary assessment into heinous offence under Section 15 of the Act 2015 where required can be done while the child in conflict with law is on anticipatory bail.

Reference to a Larger Bench occasioned before the Single Judge in the case of Mohammad Zaid Vs. State of U.P. and another as the bench differed with the view taken by a co-ordinate bench in the case of Shahaab Ali (Minor) and another vs. State of U.P. wherein it was held that a petition under Section 438 of CrPC At the behest of a child in conflict with the law would not be maintainable.

Essentially, in the case of Shahaab Ali (supra), the Court said that an anticipatory bail plea by a Juvenile won't be maintainable as in the case of a Juvenile, the police cannot apprehend the applicant and there is a procedure prescribed by Sections 10 and 12 of the Juvenile Justice Care and Protection that will have to be necessarily followed and as such, apprehension of arrest is misconceived.

On the other hand, in the referring case Mohammad Zaid (supra), the Single Judge Bench observed that anticipatory bail can very well be granted to a Juvenile and the same shall continue till an inquiry is conducted by the Board regarding a child in conflict with the law as provided under Section 14 and 15 of the Act 2015, but the same cannot be granted to a child in conflict with the law till the conclusion of the trial

Findings of the Larger Bench

At the outset, the Court noted that Section 1(4) of the Act Juvenile Justice Act 2015 starts with a non-obstante clause excluding the operation of any act and specifically providing that the provisions of the 2015 Act shall apply to all matters concerning the child in need, care and protection and child in conflict with the law, however, the Court added, it does not, in any manner, bar the power of the Court to grant anticipatory bail under Section 438 CrPC.

"It would be relevant to point out that there are certain statues which expressly excluded the provisions of Section 438 Cr.P.C. The exclusion of access to anticipatory bail as a remedy impinges upon human liberty. A child enjoys equal rights with other persons. Therefore, it would be in violation of all the principles and provisions to deny an opportunity to exercise the right of preferring an application under Section 438 CrPC," the Court said.

Further, the Court discarded the argument raised at the bar that since the Act 2015 does not make provision in the nature of Section 438 CrPC and that Sections 10 and 12 of the Act 2015 are complete Code in themselves, therefore, an anticipatory bail can't be granted to a Juvenile.

The High Court said that Sections 10 and 12 of the Act 2015 operate “after” a child alleged to be in conflict with the law is apprehended and therefore, they refer to “post” apprehension stage and not “pre” apprehension stage and therefore, these provisions cannot be in conflict with the provisions of Section 438 CrPC.

"The non-obstante clause used in Section 12 operates only when there is a conflict between the provisions of the Cr.P.C. and the provisions of Section 12 of the Act 2015. Since there is no conflict between the provisions of Section 438 of the Cr.P.C. and Section 10 or 12 of the Act 2015, therefore, availability of rights under Section 438 Cr.P.C. is not taken away to the detriment of a child. It in no manner creates an ouster for the application of Section 438 CrPC," the Court added.

Further, regarding the ruling in the case of Mohammad Zaid (supra) that anticipatory bail order will only operate till the time of preliminary assessment under Sectio 14 and 15 of the JJ Act, the larger bench clarified that the required enquiry under Section 14 and preliminary assessment into heinous offence under Section 15 of the Act 2015, where required, can be done while the child in conflict with law is on anticipatory bail.

In view of this, the reference was answered as above and the Court directed that the anticipatory bail applications be now placed before the appropriate Bench in the week commencing July 3, 2023, for disposal.

It may be noted that earlier this year, a single judge of the High Court had 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 had 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

Also read: JJ Act | Child In Conflict With Law Can Seek Anticipatory Bail U/S 438 CrPC: Orissa High Court

Appearances

Counsel for the applicant: Advocate Rajrshi Gupta

Counsel for the State of UP: Additional Government Advocates JK Upadhyay and Amit Sinha

Amicus Curiae: Advocate Gaurav Kakkar

Case Title - Mohammad Zaid vs. tate of U.P. and Another along with connected matters 2023 LiveLaw (AB) 176

Case Citation: 2023 LiveLaw (AB) 177

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