The Allahabad HC on Thursday stated that anticipatory bail is not maintainable in the case of juveniles.
The bench of Justice Jyotsna Sharma was dealing with the application filed on behalf of minor ‘X’ through his guardian/father seeking anticipatory bail in a Case registered under Sections 307, 504 and 506 IPC.
In this case, Rakesh Pathak and Shashank Shekhar Tiwari, counsel on behalf of the applicant contented that a minor cannot be deprived of protection available under Section 438 Cr.P.C. just because he is not an adult.
The issue for consideration before the bench was:
Whether the anticipatory bail could be granted to the applicant or not?
High Court noted that while an adult can ordinarily be arrested for every offence which is cognizable by the police but in case of child in conflict with law, he cannot ordinarily be apprehended/arrested in cognizable cases. It will be the narrowest interpretation possible to say that legislature replaced the word ‘arrest’ with ‘apprehension’ merely to sound child friendly. This replacement is purposeful in line with the objectives of the Act.
The bench after looking into Section 12 of the Juvenile Justice Act, 2015 opined that “……………..the apprehension of arrest which is a necessary pre-requisite for applicability of Section 438 Cr.P.C. is altogether out of place in cases of juveniles. The word “arrest” is not replaceable by the word “apprehension” in the sense used under the provisions of the Juvenile Justice Act…………”
High Court stated that a distinct and special procedure with regard to a child offender has been put in place in the Juvenile Justice Act, 2015 so as to comprehensively deal with all the aspects which may arise where a criminal case, whether initiated by filing of FIR or not begins. There are many indicators which rule out forming of a view or an opinion that provisions of anticipatory bail shall apply to protect the liberty of a juvenile. The Act has a scheme which deals with such juveniles at the preproduction and post-production stages.
The bench further noted that “……………the factors which ought to be taken into consideration while dealing with the release of a child on bail, expressly include the likelihood of his coming into association with known criminals, the likelihood of his exposure to physical, moral or psychological danger or otherwise defeating the ends of justice. The above factors are enough to deduce that the provisions of Section 12 have been enacted keeping in mind the best interest of a child………..”
High Court opined that a holistic machinery of law has been put in place to deal with the child in conflict with law. By implication, such gaps, if any, need to be excluded where a child can be dealt with under regular law of procedure. In case, the provisions of Section 438 Cr.P.C. are allowed to hold field in the matters of juvenile, the aim and object of the Act shall be defeated. The interpretation of law cannot be devised in a way, so as to put a hurdle in the broader and solemn aim which is sought to be achieved by this enactment.
The bench disagrees with the opinion of the Bombay High Court and referred to the case of Shahaab Ali and Another v. State of U.P and observed that the Juvenile Justice Act is a comprehensive legislation containing all provisions with regard to children in conflict with law and that the provisions of Section 438 Cr.P.C. have no application being extraneous and incompatible with the scheme, as well as aim and objective, sought to be achieved by the Act.
In view of the above, the High Court dismissed the petition.
Case Title: Minor ‘X’ v. State of U.P. and Another
Bench: Justice Jyotsna Sharma
Case No.: CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 11542 of 2022
Counsel for the applicant: Rakesh Pathak and Shashank Shekhar Tiwari
Counsel for the respondent: Prem Shankar Pandey
