'Child In Conflict With Law Can't Be Treated As Under Trial Prisoner U/S 436-A CrPC': Madhya Pradesh High Court

Justice Anand Pathak was essentially dealing with a criminal revision preferred by a CCL, challenging the order passed by the lower court, whereby his appeal was dismissed and the order passed by the Juvenile Justice Board was affirmed.

As per the case diary, the CCL, aged 14, was facing allegations of committing rape upon a 3-year-old girl. Moreover, the medical reports of the victim supported the allegations levelled against him. He was in correction home/remand and was facing proceedings before the JJB for offences punishable under Section 376 IPC and under Section 5, 6 POCSO Act.

The CCL prayed for his release citing the period of retention in remand/correction home. He also raised the legal question that as per the provision under Section 436-A CRPC, he had suffered more than two years of incarceration, and therefore, he ought to be released on bail because maximum retention/detention for CCL in remand home can only be three years. He argued that since he had completed more than half of the period of detention, his case for bail had merit.

Taking note of the pleadings of the CCL, the Court framed the following questions for its consideration-

"1. Whether a child in conflict with law completes more than one half of total period of retention of three years in special home, then whether he is entitled to avail the benefit of Section 436-A of Cr.P.C.?

2. Whether a child in conflict with law can be treated as under trial prisoner as contemplated under Section 436-A of Cr.P.C.?

3. Any additional submission related to this question can also be addressed by the learned amici curiae in the matter."

The CCL submitted that the Act of 2015 is a beneficial and benevolent legislation, and therefore, is to be construed to have incorporated the provisions impliedly. Building on this argument, he submitted that the application under Section 436-A CrPC is one such clause which offers the welfare of CCL and helps to achieve the general objective of the Act of 2015, and that the same does not exclude CrPC in expressed terms. Therefore, he submitted that relevant provisions such as Section 436-A CrPC could be borrowed here for the benefit of CCL.

Mr. V.D. Sharma, the Amicus Curiae, submitted that on a careful reading of Section 1(4) of the Act, 2015 and Section 5 CrPC, it is clear that the former would prevail over the latter. He placed his reliance on the decision of a division bench of the Court in Ankesh Gurjar @ Ankit Gurjar v. The State of M.P, wherein it was concluded that Section 12 of the Act of 2015 is a complete code in itself qua the subject of bail. Therefore, he asserted that general provisions as to Bail and Bond as referred under Section 436-A CrPC has no applicability in relation to the bail of Juvenile. Thus, according to him, Section 436-A CrPC cannot be attracted in any case, relating to Juveniles.

Addressing the point regarding the Act of 2015 being a beneficial legislation, he submitted that it is specifically meant to deal with all matters relating to Children and that vide Section 3 of the Act of 2015, the legislature had intended to provide certain principles which are to be followed while implementing the provisions of the Act of 2015. He further submitted that on a conjoint reading of Section 3(xii) with Section 12, coupled with Rule-8 of the 2016 Rules of the Act of 2015, it can be understood that apprehension/detention of the child is an exception and should be a matter of last resort and that too by recording reasons for doing the same. Therefore, Mr. V.D. Sharma submitted that that the purview of CrPC has been taken away from the Act of 2015.

Mr. S.K. Sharma, another Amicus Curiae appointed by the Court, came up with a different point of view. Elucidating the historical background of Section 436-A CrPC, he submitted that the said provision came into force by way of Code of Criminal Procedure (Amendment) Act, 2005, whereas, Juvenile Justice (Care and Protection of Children) Act, 2000 (Predecessor of Act of 2015) is prior in time. Therefore, he argued that the non obstante clause of Section 1(4) of the Juvenile Justice Act, 2000 (predecessor of the Act of 2015) did not have any occasion to consider Section 436-A CrPC.

He further submitted that since the concept of Section 436-A CrPC originated from different judgments of the Apex Court and was based on Article 21 of the Constitution of India, therefore, even if there was a bar, existing impliedly under Section 1(4) Act of 2015, the same cannot hold good. He asserted that as per the provisions of the Act of 2015, certain presumptions have been raised in favour of juvenile in which presumption of innocence is one of the attributes and the same was applicable in the present case. He argued that since remand home also confines and restrains the activities of a juvenile, therefore, in fact his confinement deserves to be addressed under Section 436-A CtPC. Supporting the case of the CCL, he submitted that considering the period of his retention, he be considered for release on adequate surety.

The Court began with its observations by interpreting the relevant provisions under the Act of 2015 and the CrPC. Corollary to it, the Court noted that the primary purpose of the Act of 2015 is to reform or a repatriate the child in to society and not of deterrence or retributive qua child-

For this reason even when the child is assessed to be tried as an adult is not jointly tried with the adult co-accused (Section 23 of the Act of 2015) nor is tried by the regular Courts of law but by Children Courts as per Sections 15 and 19, so that child friendly atmosphere may prevail in that Children's Court.

The Court then examined the conflicting provisions under the Act of 2015 and CRPC, in the context of its observations in the Ankesh Gujar case-

Perusal of Section 1 (4) although gives an impression that apprehension, detention or imprisonment etc. are contemplated by the legislature while enactment, but when it is tested on the anvil of Section 12 of the Act of 2015 vis-a-vis provisions of Cr.P.C., then Division Bench of this Court ironed out the creases in the case of Ankesh Gurjar (supra) and held that concept of arrest / apprehension in a police lock-up / jail as contemplated in Chapter V of Cr.P.C. is not recognized in the Scheme of Act of 2015. Therefore, juvenile is not lodged in any police lock-up and jail, therefore, benefit of anticipatory bail is not available to him in Act of 2015.

The Court elucidated that the very concept of "Apprehension or Arrest" has been negatived by its decision in the Ankesh Gujar case and therefore, as per the legal mandate, a juvenile is never under confinement by way of arrest (pre or post trial), and when he is not arrested under the Act of 2015, then Section 436-A CrPC does not come in to play. It opined that words, such as Investigation, Inquiry or Trial as contemplated in CrPC are not borrowed in letter and spirit in Act of 2015.

Coming to the provision under Section 436-A CrPC, the Court noted-

Although Section 436-A of Cr.P.C. Contemplates maximum period of imprisonment specified for that offence under that law. Here expression, under that law can only mean either Indian Penal Code (because of Section 376 of IPC, Juvenile is facing) or POCSO (Section 5/6 of POCSO Act), not the Act of 2015.

With the said observation, the court scrutinised the Act of 2015 and noted that the statute is for the welfare of children and is guided by the said spirit and objects, and that it does not contemplates imprisonment as a way of punishment or as a way of retribution to the crime allegedly committed by a CCL. Therefore, the argument of the CCL regarding Section 436-A doesn't hold ground and that the said provision is not applicable in the factual matrix of his case-

When relevant Law itself desist from imprisonment or arrest then the theory of suffering more than half of the maximum period of imprisonment gets frustrated. In short, Section 436-A of Cr.P.C. itself does not support the arguments advanced by petitioner.

If the controversy is seen from the vantage point of judgment delivered by Division Bench of this Court in the case of Ankesh Gurjar (supra) then also it is legally established that CICL can never be arrested or apprehended and therefore, valuable right of anticipatory bail is not even contemplated in the Act of 2015. Thus, provisions of Section 436-A of Cr.P.C. is not applicable in the present set of facts.

After the abovementioned conclusion, the Court noted that considering the allegations levelled against him and the medical reports of the victim, his case for release lacked merits at the current stage.

Collating its aforesaid analysis and observations, the Court dismissed the Criminal Revision, holding that a CICL cannot be treated as an undertrial prisoner as contemplated under Section 436-A CrPC-

In view of the discussion made about, questions as formulated above deserve to be answered in negative and child in conflict with law can not be treated as under trial prisoner as contemplated under Section 436-A of Cr.P.C. and cannot be released after completing half of total period of detention of three years in special home to avail the benefit of Section 436-A of Cr.P.C.

Case Title: Vidhi ka Ulaghan Karne Wala Balak Versus State of M.P. & Anr.

Citation: 2022 LiveLaw (MP) 65

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