Juveniles have right to seek anticipatory bail U/s 438 Cr.P.C | Allahabad High Court 

Juveniles have right to seek anticipatory bail U/s 438 Cr.P.C | Allahabad High Court 

“A child in conflict with law will have an equal and efficacious right to seek his remedy of anticipatory bail under Section 438 Cr.P.C. like any other citizen, but with the restrictions imposed in the said provision itself.” Observed the Division Bench comprising Hon’ble Mr. Justice Pritinker Diwaker, CJ and Hon’ble Mr. Justice Samit Gopal of Hon’ble Allahabad High Court while answering a reference as referred by Hon’ble Single Judge. Hon’ble Court while answering the reference also held that –

• Section 1(4) of the Juvenile Justice Act, 2015 does not exclude the application of Section 438 Cr.P.C. to a child in conflict with 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 child in conflict with law can be arrested/apprehended/granted bail if necessary and any such situation arises.
• 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.

CONTENTION OF THE AMICUS CURIAE

Sri Gaurav Kakkar, learned Amicus Curiae argued that the word “apprehension” in Section 10 of the Act 2015 is used to denote curtailing of the liberty of a child which would be his arrest as by being apprehended he would not be free to move freely, eat freely, live freely and do any work of his choice freely. It is argued that since the Act 2015 is a beneficial legislation, a child in conflict with law or a juvenile cannot, in any manner, be deprived of the benefit of anticipatory bail under Section 438 Cr.P.C. as the said section does not bar a juvenile or a child in conflict with law taking benefit of the same in the event a need so arises. It is argued that since there is no bar under Section 438 Cr.P.C. of a juvenile not filing an application for anticipatory bail, the same does not stand not maintainable for him. It is argued that although the Act 2015 is a self contained statute providing procedure to be followed in case of apprehending a juvenile or a child in conflict with law, but the same does not in any manner restrict the right of such person for exploring the remedy of anticipatory bail under Section 438 Cr.P.C. in a circumstance if needed.

CONTENTION OF APPLICANTS

The applicants relied upon an order dated 15.7.2022 passed by a Division Bench of Bombay High Court in Raman and another vs. State of Maharashtra : 2022 SCC OnLine Bom 1470, wherein the Division Bench has held that an anticipatory bail even for a child in conflict with law is maintainable. Further reliance has been placed on an order dated 23.8.2021 passed by a Division Bench of Calcutta High Court in the case of Miss. Surabhi Jain (Minor) vs. State of West Bengal : C.R.M. 405 of 2021, decided on 23.08.2021. It is argued that insofar as the fact that there is conflict between the special act and the Code and the Special Act is silent, the procedure prescribed under the Code shall apply as has been held in the order dated 3.3.2017 passed by a Division Bench of Chhattishgarh High Court in the case of Sudhir Sharma vs. State of Chhattisgarh : 2017 SCC OnLine Chh 1554. It is argued that welfare and protection of a child in conflict with law and a juvenile is the paramount consideration in a society and as such a beneficial legislation is there, protecting his rights and thus, benefit of Section 438 Cr.P.C. cannot be kept out for him. It is argued that even as per Article 14 of the Constitution of India, there has to be an equality before law and as such, the benefit has to be extended to a child in conflict with law which is available in cases of other citizens.

CONTENTION OF RESPONDENT

Learned Additional Government Advocates, per contra, argued that since a child in conflict with law cannot be arrested, the provisions of Section 438 Cr.P.C. cannot be applicable to him. It is argued that Section 438 Cr.P.C. states that it is only applicable to a person who is apprehending his arrest, but since there is no provision of arrest of a child in conflict with law, he cannot explore the said remedy.

HON’BLE COURT’s OBSERVATIONS

At the outset Hon’ble Division Bench observed that :-

“Although Section 1(4) of the Act 2015 starts with an non-obstante clause excluding the operation of any act and specifically providing that the provisions of this Act shall apply to all matters concerning the child in need, care and protection and child in conflict with law, but does not, in any manner, bar the power of the Court to grant anticipatory bail under Section 438 Cr.P.C. Non-obstante clause although operates in the areas covered in sub-section (i) and (ii) of Section 1 of Act 2015, under sub-section (i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social integration of child in conflict with law is provided.

In so far as in a stage prior to the apprehension or arrest by a child in conflict with law is concerned, the Act is silent. The Parliament has not overridden the provision of Section 438 Cr.P.C. There is no provision in Section 1 and Section 4 or elsewhere in the Act 2015 making Section 438 Cr.P.C. inapplicable for offences punishable under the Act 2015.

The liberty of a citizen has to be regulated by law. It has to be procedural, substantial, just and reasonable under Article 21 of the Constitution of India. There is no bar for grant of anticipatory bail to a child in conflict with law or a juvenile, although Section 1(4) of the Act 2015 begins with a non-obstante clause which operates in relation to Code of Criminal Procedure, but the same does not, in any manner, is inconsistent with regard to the provisions of anticipatory bail under Section 438 Cr.P.C. for a juvenile or a child in conflict with law although it is a discretion of the court concerned either to grant anticipatory bail or not, but the remedy of an anticipatory bail cannot be taken away for a juvenile or a child in conflict with law, if there is no specific bar to it.

The Legislature has not expressly barred the application under Section 438 Cr.P.C. with regard to a juvenile or a child in conflict with law. If the Legislature had an intention to override the provision of Section 438 Cr.P.C. then the same should have been expressly stated that Section 438 Cr.P.C. shall not apply to a juvenile or a child in conflict with law. There is, however, no such provision in the Code. In these circumstances, therefore, the Legislature in its wisdom left it to the Court to bring about a harmonious construction of the two statutes, so that the two may work and stand together”

Hon’ble Court further while examining the scope of anticipatory bail observed that

“18. The importance of enacting Section 438 Cr.P.C. is explained by the Apex Court in the case of Gurbaksh Singh Sibbia vs. The State of Punjab : (1980) 2 SCC 565. It is observed in paragraph 12 of the said judgment that a person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, insofar as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person, who is arrested for the commission of non-bailable offences asks for bail.

Further in paragraph 26, it has been observed that the beneficent provision contained in Section 438 Cr.P.C. must be saved, not jettisoned.

Further in paragraph 31, it was observed that in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made.”

Further, his lordships observed that “21. A non-obstante clause is added to a provision in order to uphold its enforceability over another provision that is contradictory to it. It is well settled that the non-obstante clause has overriding effect only in case of inconsistency. (Reference: Ajoy Kumar Banerjee Vs. Union of India : (1984) 3 SCC 127, Chief Information Commissioner Vs. High Court of Gujarat : (2020) 4 SCC 702).”

In view of the above observation Hon’ble Division Bench answered the reference and placed the matters before appropriate bench for disposal.

Case title :- Mohammad Zaid Vs. State of U.P. & another

Case no. :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 8361 of 2020 + other connected applications

Order date :- 24.05.2023