Anticipatory Bail Plea Of Juvenile U/S 438 CrPC Not Maintainable: Punjab & Haryana High Court

The Punjab & Haryana High Court has held that an anticipatory bail application filed under Section 438 of CrPC by a juvenile is not maintainable; that bail is granted to a juvenile in a bailable or non-bailable offence, notwithstanding anything contained in CrPC.

"The provisions of Section 438 Cr.P.C. are enumerated for granting the bail to the person who has apprehension of the arrest. A reading of Section 438 Cr.P.C.'s provisions vis-a-vis relevant provisions of the Act would show that a juvenile cannot be arrested, and thus, there is no question of apprehension of his arrest. Hence, the petition under Section 438 Cr.P.C. is not maintainable in case of a juvenile", Justice Rajesh Bhardwaj observed.

The Court further noted that Juvenile Justice Act, 2015 is a complete Code in itself and has specific provision for dealing with the child in conflict with law. Section 12 thereof pertains to bail of a child alleged to be in conflict with the law and mandates that as soon as the police apprehends a child, he shall be produced before the JJ Board, without losing any time.

"The provisions of Section 12 would show that when any child in conflict with law is brought before a Board then such person notwithstanding anything contained in the Cr.P.C. or in any other law for the time being in force, be released on bail with or without surety," the Court noted while reaffirming that a juvenile cannot be arrested.

Notably, the proviso to Section 12 mandates that if it appears to the Board that there are reasonable grounds for believing that the release of the child in conflict with the law, is likely to bring that person in association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, then the Board shall record the reasons for denying the bail.

The Court also appreciated the underlying purpose of the JJ Act, wanting personal interaction of the juvenile with the Board before deciding his bail. But, on the other hand, such a provision does not have any place under Section 438 CrPC and hence safeguard provided to a juvenile is automatically bypassed. ""

In concluding, the Court relied on the recent judgement Mohammed Bin Ziyad v. State of Telangana & Another of the Telangana High Court, where it was held that an application seeking anticipatory bail under Section 438 of CrPC at the instance of a child in conflict with law is not at all maintainable. In the Bin Ziyad judgement, the Court also noted a direction to the Juvenile Justice Board to release the child in conflict with the law that the High Court cannot issue in the exercise of its inherent power saved under Section - 482 of Cr.P.C.

Also Read: Anticipatory Bail And Juveniles: An Ambiguous Tale

Case Title: Piyush (Minor) v. State of Haryana

Click here to download order

Read Order