Uttaranchal High Court: Ravindra Maithani, J. dismissed an application for anticipatory bail in regards to an ongoing trial under Sections 376, 323, 504, and 506 Penal Code, 1860. The previous anticipatory bail application of the applicant had been rejected by the Fast Track Court/Special Judge, POCSO/Additional Sessions Judge, Dehradun on the ground that since the applicant is a child in conflict with the law (“CIL”) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the Act”) does not make any provision for anticipatory bail, the application cannot be allowed.

Counsel for the applicant argued that the applicant has not been heard on merits. Bail includes anticipatory bail. It was further argued that the provisions of anticipatory bail are in favour of an accused apprehending arrest, which is beneficial to preserve the right to life and liberty and denial of it to a CIL is not the intent of the legislature.

State Counsel submitted that the Act is a beneficial act for the interest of CIL. CIL may not be kept in police stations or in jail. He is not given in police custody. The safety of child is ensured by the JJ Board. It was further submitted that initially the chargesheet was submitted against the applicant in the court of Chief Judicial Magistrate based on which proceedings of Criminal Case were instituted and cognizance was taken. Subsequently, on an application of the applicant, he was declared CIL and the record of the case was forwarded to the JJ Board. It was argued that thereafter the applicant is not appearing before the JJ Board. Non-bailable warrants have even been issued against him. Therefore, he may not be granted anticipatory bail on this ground also.

The Court reproduced the objects and reasons of the Act and concluded that Sub-section (4) of Section 1 of the Act gives overriding effect to the provisions of the Act as it makes it abundantly clear that particularly in the matter of apprehension, detention, the provisions of the Act would have overriding effect. The Court explained that in the matter of bailable offences, bail is claimed as a matter of right under the Code, but provision of bail as incorporated under Section 12 of the Act are quite distinct. It makes the provision that in all cases, be it bailable or non-bailable, CIL shall be granted bail, provided he fulfils certain conditions. It means, that if the conditions as given in the proviso of Section 12 (1) of the Act are not met, even in bailable cases, CIL may not be granted bail.

The Court was of the view that definitely anticipatory bail may not be granted under the Act and the court below rightly dismissed the anticipatory bail application of the applicant. The Court further stated that the applicant has been avoiding his presence before the JJ Board. On this ground also, the applicant is not entitled to anticipatory bail.[Rashid Rao v. State of Uttarakhand, 2022 SCC OnLine Utt 481, decided on 24-05-2022]

Mr Aditya Singh, Advocate for the applicant.

Mr Lalit Miglani, A.G.A. for the State

Suchita Shukla, Editorial Assistant has reported this brief.

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