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

The Bombay High Court has held that a child in conflict with law as per the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) can file an application under Section 438 of CrPC, seeking anticipatory bail.

A division bench of Justices Sarang Kotwal and Bharat Deshpande observed,

"When a child in conflict with law is apprehended, his liberty is curtailed. Section 438 of the Cr.P.C. affords a valuable right to a person, who is likely to be arrested or in other words, whose liberty is likely to be curtailed. Section 438 of the Cr.P.C. does not make any distinction between different persons."

Briefly, the background of the case is that a Single Judge had rejected the anticipatory bail plea filed by two siblings, aged 16 and 14, observing that the applicants were covered by the definition of "Child in conflict with law" as defined under the JJ Act and therefore, their application for anticipatory bail under Section 438 of Cr.P.C. was not maintainable.

The matter was referred to the division bench in light of different view expressed by other single judges of the court.

The division bench noted that judgments, which lay down the ratio that the application under Section 438 of the Cr.P.C. is not maintainable on behalf of child in conflict with law, take a view that Section 12 of the JJ Act is a complete Code in itself. Further, there is no specific provision for anticipatory bail under the JJ Act. In fact, the word "arrest" is not used with reference to a child in conflict with law in the JJ Act. Other judgments, the court stated, which have taken a view that such application is maintainable, have basically relied on the fact that JJ Act is a beneficial legislation and it cannot take away the right which is available to a child.

Taking this into account, the court opined that a plain reading of Article 14 of the Constitution of India, would show that any protection, which is available to any person under the law, is available also to a child as defined under the JJ Act. The provisions of Section 438 of the Cr.P.C. afford the earliest protection during or even before investigation and therefore, even a child in conflict with law has a right to use this remedy. 

Assistant Public Prosecutor AV Deshmukh argued that though Article 14 provides for equality before law, in case of the JJ Act, there is a purposeful differentiation made for protection of children and therefore, reasonable classification was permissible. He stated that the JJ Act flows from Sub-Article (3) of Article 15 of the Constitution of India and was for the benefit of children. The JJ Act, as per the APP, treats them as victims and not as offenders and therefore, separate special procedure is provided.

He further submitted that JJ Act has overriding effect over all other Acts including the Cr.P.C. According to APP, the word "arrest" was not used in Sections 10 and 12 or for that matter in any other provision relating to a child under the JJ Act and therefore, Section 438 of the Cr.P.C. was not applicable to a child in conflict with law under the JJ Act.

In this connection, the Court noted that Section 3 (viii) of the JJ Act provides that adversarial or accusatory words are not to be used in the processes pertaining to a child. Keeping in mind the spirit of this principle, the word "arrest" is not used in connection with a child. The Cr.P.C., in fact, uses the words "arrest" and "apprehension" interchangeably. 

"The definition of the word "person" mentioned in Section 11 of the IPC, is an inclusive definition. It does not exclude a child. Section 438 of the Cr.P.C. does not exclude a child from the word "person". Therefore, there is no reason to deny the benefit of the provisions of Section 438 of the Cr.P.C. to a child, who is likely to be apprehended," the Court said.

The court rejected the argument that the JJ Act does not make provision in the nature of Section 438 of the Cr.P.C. and that Sections 10 and 12 of the JJ Act are complete Code in themselves. It stated that Sections 10 and 12 operate "after" a child alleged to be in conflict with law is apprehended. Thus, they refer to "post" apprehension stage. They do not refer to "pre" apprehension stage. Therefore, they cannot be in conflict with the provisions of Section 438 of the Cr.P.C.

Finally, the court stated that if the JJ Act was to provide for procedure in the nature of Section 438 of the Cr.P.C., that procedure would have overridden the Cr.P.C. But if no special form of procedure is prescribed in the nature of Section 438 of the Cr.P.C., then the provisions of the Cr.P.C. shall operate.

CASE TITLE: Raman & Manthan v. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 253

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