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

The Single Judge Bench of Justice Sashikanta Mishra rejected the argument that since there is no provision for ‘arrest’ under the Juvenile Justice Act, anticipatory bail cannot be granted as ‘anticipation of arrest’ is a pre-condition for grant of bail. The Court said,

“…merely because the word ‘arrest’ has not been used in the JJ Act, cannot operate to the detriment of a child in conflict with law, who has reason to believe that he may be apprehended in a non-bailable offence. This would tantamount to placing undue restrictions on a Person’s right to liberty guaranteed under Article 21 of the Constitution of India.”

Factual Background

One security guard of the Railway track in Dhamra port had lodged an FIR alleging that the petitioners were found stealing keys from the railway tracks and fled away from the spot after they were discovered doing so. Basing upon such FIR, a case was registered under Sections 379/34 of IPC followed by investigation.

As the petitioners were CCLs, they filed an application in the court of Sessions Judge, Bhadrak under Section 438 of Cr.P.C. for grant of anticipatory bail. However, the Court doubted the maintainability of such application. The Sessions Judge had noted that there are conflicting and contradictory views of different High Courts in this regard. Thus, he held that since a juvenile cannot be arrested, the provision under Section 438 of Cr.P.C. would not apply to him since there cannot be apprehension of arrest in his case. As such, the bail application was rejected.

Being aggrieved by the order, the present revision petition was filed by the CCLs. The High Court acknowledging the important of the question of law raised, had appointed Dharanidhar Nayak, Senior Advocate as amicus curiae to assist the Court in the matter.

Submissions of Amicus Curiae

Dharanidhar Nayak, amicus curiae submitted that Section 438 of Cr.P.C. applies to a ‘person’ who is apprehending arrest. The word ‘person’ is not defined in Cr.P.C. but Section 2(y) thereof provides that words and expressions used therein and not defined but defined in the Indian Penal Code shall be assigned with the meaning assigned in IPC. Section 11 of IPC defines “Person” as – “the word ‘person’ includes any Company or Association or body of persons, whether incorporated or not”.

Therefore, he contended that the word ‘person’ being an inclusive one, use of the same in Section 438 of Cr.P.C. would include within its purview even a CCL. He further argued that Section 10 of the Juvenile Justice Act refers to ‘apprehension by the police’, which is the same as ‘arrest’.

Thus, he contended, as there is no distinction between the terms ‘apprehension’ and ‘arrest’ and bail is also permissible to be granted after apprehension, there is no reason why the benefit of anticipatory bail shall be denied to a CCL apprehending such apprehension, which is nothing but arrest.

The amicus curie further said, unlike other statutes like the SC & ST (POA) Act, the JJ Act does not specifically exclude the power of the court/Board to grant anticipatory bail to a CCL. To buttress his arguments, he relied upon the decision of the Bombay High Court (Aurangabad Bench) in Raman v. State of Maharashtra (in Anticipatory Bail Application No. 227 of 2022, decided on 15.07.2022).

Contentions of Respondent

Priyabrata Tripathy, Additional Standing Counsel argued that anticipatory bail can be granted only when there is apprehension of arrest. In view of the scheme of the JJ Act, arrest of a CCL is not permissible as special procedures have been laid down under Sections 10 and 12 of the JJ Act which mention the word ‘apprehension’ and not ‘arrest’. Therefore, he submitted that the Court below has done the right thing in holding that in the absence of any provision to arrest a CCL, the benefit of Section 438 cannot be extended.

Court’s Observations

The Court, at the outset, observed that the word ‘person’ as appearing under Section 438, Cr.P.C. is a general term which is inclusive in nature. Therefore, it must be held to include all such persons who are apprehending arrest in a non-bailable offence, as giving a restricted meaning to the word would be contrary to the legislative intent. Thus, the Court said:

“In the case of Shri Gurbaksh Singh Sibbia and others Vs. State of Punjab, reported in (1980) 2 SCC 565 it was held that a beneficent construction has to be imparted to the provisions relating to personal liberty. It would therefore, be an extremely unreasonable proposition that a person would be entitled to the benefit under Section 438 of Cr.P.C. only after he completes the age of 18 years and not before.”

Then, Justice Mishra underlined that the Court below denied anticipatory bail to the petitioners mainly because there is no provision for ‘arrest’ under the JJ Act, which uses the term ‘apprehension’ instead. Further, it was noted that both these terms, i.e. ‘arrest’ and ‘apprehension’ have not been defined anywhere in the Cr.P.C., IPC or the JJ Act. Therefore, the Court resorted to the dictionary meaning of the said terms and observed:

“Coming to the provisions of the JJ Act, it may be noted at the outset that the word ‘arrest’ has not been used anywhere in the statute. Section 10 refers to apprehension of child alleged to be in conflict with law. Obviously the word ‘apprehension’ here would refer to the former meaning i.e., the act of capturing or arresting (Oxford Advanced Learner’s Dictionary) and seizure in the name of law (Black’s Law Dictionary). There can be no manner of doubt that both the words are intended to convey the same meaning i.e., confinement of the person by the authority of law.”

The Court then made reference to the observations made by the Bombay High Court in Raman (supra), wherein it was noted,

“…it has to be 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. Section 46 of the Cr.P.C. mentions how an arrest is to be effected.”

Having regard for the aforesaid, the Court concluded:

“From a conspectus of the analysis and discussion made hereinbefore, this Court is of the considered view that an application under Section 438 of Cr.P.C. filed by a child in conflict with law for grant of anticipatory bail is maintainable in the eye of law.”

Further coming to the facts of the case at hand, the Court found that there is no allegation in the FIR that the petitioners had actually stolen the Railway articles and there is also nothing in the FIR to show as to how the informant could ascertain their identities to refer to them by their respective names in the FIR. Thus, it allowed their anticipatory bail applications.

Case Title: Subham Jena & Anr. v. State of Odisha

Case No.: CRLREV No. 551 of 2022

Judgment Dated: 5^th January 2023

Coram: Sashikanta Mishra, J.

Amicus Curiae: Mr. Dharanidhar Nayak, Senior Advocate

Counsel for the Petitioners: M/s. Pratik Dash & S. Anuvav, Advocates

Counsel for the Respondent: Mr. Priyabrata Tripathy, Addl. Standing Counsel.

Citation: 2023 LiveLaw (Ori) 10