Allahabad High Court: In a batch of anticipatory bail applications placed before a Larger Bench on a reference made by a Single Judge, that whether a petition under Section 438 of the Code of Criminal Procedure, 1973 at the behest of child, in conflict with law, would be maintainable, the division bench of Pritinker Diwaker, C.J. and Samit Gopal, J. held that 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 Juvenile Justice Care and Protection Act, 2015 (‘JJ Act’) 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 regarding the provisions of anticipatory bail under Section 438 CrPC for a juvenile or a child in conflict with law. But it is the discretion of the court concerned either to grant anticipatory bail or not, but the remedy of an anticipatory bail cannot be taken away from a juvenile or a child in conflict with law, if there is no specific bar to it.
Background:
The applicants were minors who had filed applications for anticipatory bail, the Single Judge held that the same to be not maintainable and there is a procedure prescribed by Sections 10 and 12 of the JJ Act that will have to be necessarily followed and as such, apprehension of arrest is misconceived. The same was thus dismissed as not maintainable.
Analysis:
The Court took note of some relevant and important provisions of the JJ Act. Further, it said that a child in conflict with law cannot be left to be remedy-less till the time of his apprehension by the authority concerned or arrest whatever the case may be. Although Section 1(4) of the JJ Act starts with an non-obstante clause excluding the operation of any Act and specifically providing that the provisions of JJ 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 CrPC.
The Court said that non-obstante clause operates in the areas covered in Sub-Section (i) and (ii) of Section 1 of JJ Act, under Sub-Section (i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social integration of child in conflict with law is provided. But the Act is silent at a stage prior to the apprehension or arrest by a child in conflict with law. There is no provision in Section 1 and Section 4 or elsewhere in the JJ Act making Section 438 CrPC inapplicable for offences punishable under the JJ Act.
The Court said that the Legislature has not expressly barred the application under Section 438 CrPC. 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 CrPC then the same have been expressly stated, that Section 438 CrPC shall not apply to a juvenile or a child in conflict with law. The Court said that in the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 an absolute bar on the application of Section 438 CrPC has been created. There is no express provision in the JJ Act stating that Section 438 CrPC shall not apply to a juvenile or a child in conflict with the law.
The Court also rejected the argument that the Act 2015 does not make provision in the nature of Section 438 CrPC and that Sections 10 and 12 of the Act 2015 are complete Code in themselves; and said that Sections 10 and 12 of the Act 2015 operate “after” a child alleged to be in conflict with law is apprehended. Thus, they refer to “post” apprehension stage. They do not refer to “pre” apprehension stage. Therefore, they cannot be in conflict with the provisions of Section 438 CrPC. The non-obstante clause used in Section 12 operates only when there is a conflict between the provisions of the CrPC. and the provisions of Section 12 of the JJ Act. Since there is no conflict between the provisions of Section 438 of the CrPC and Section 10 or 12 of the JJ Act, therefore, availability of right under Section 438 CrPC. is not taken away to the detriment of a child.
The following questions were considered by the Court:
• Whether limited window opened by the judgment of this Court in the case of Shahaab Ali v. State of U.P., 2020 SCC OnLine All 45 for child in conflict with law confining his right to seek anticipatory bail before FIR is lodged against him deserves to be further opened to the stages where inquiry against such a child under Section 14 of the Juvenile Justice Care and Protection Act, 2015 (‘JJ Act’) and preliminary assessment into heinous offence under Section 15 of the JJ Act, where needed, is concluded and he is found involved in heinous offence and his trial is transferred to Children’s Court as per Section 18(3) of the JJ Act?
The Court said that the limited window opened in the judgment of the Single Judge in the case of Shahaab Ali (supra) for child in conflict with law confining his right to seek anticipatory bail before F.I.R. is lodged against him is incorrect. A child in conflict with law will have an equal and efficacious right to seek his remedy of anticipatory bail under Section 438 CrPC like any other citizen, but with the restrictions imposed in the said provision itself.
• Whether Section 1(4) of the JJ Act excludes the application of Section 438 CrPC to a child in conflict with law after the FIR is registered against him as held by this Court in the case of Shahaab Ali (supra)?
The Court said that the Section 1(4) of the Act, 2015 does not exclude the application of Section 438 CrPC 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 CrPC to make it inapplicable.
• Whether the arrest/apprehension/bail of a child in conflict with law is necessary during the inquiry by the Board about the nature of offences alleged against him under Section 14 of the JJ Act, 2015; during preliminary assessment into heinous offence by Board under Section 15 of the JJ Act, 2015 read with exercise of power under Section 94 of the JJ Act, 2015 for determination of age of child in conflict with law, where required and before passing of order under Section 17 of the JJ Act, 2015 that child has not been found in conflict with law or under Section 18(3) of the JJ Act, 2015 that the child in conflict with law has been found involved in commission of heinous offence ?
A Court said that a child in conflict with law can be arrested/apprehended/granted bail if necessary and any such situation arises.
• Whether only after a child in conflict with law is found involved in heinous offence and other non-bailable offence and found to be juvenile by the Board, he should be directed to surrender and obtain bail as per Section 12 of the JJ Act, and not all the children allegedly in conflict with law, arrested/apprehended be compelled to seek bail under Section 12 of the JJ Act, 2015 before inquiry under Section 14 of the JJ Act and preliminary assessment into heinous offence under Section 15 of the JJ Act, is concluded and order under Section 17 read with Section 18 of the JJ Act, 2015 is passed, wherein a child may not be found to be a child in conflict with law or juvenile at all?
A Court said that 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 CrPC 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.
• Whether there is presumption in the JJ Act, 2015 that by lodging of mere FIR against a juvenile, he becomes a child in conflict with law who has committed an offence, without any enquiry, preliminary assessment into a heinous offence and determination of his age and his declaration of being involved in an offence and he is only required to obtain bail as per Section 12 of the Act aforesaid and cannot be granted anticipatory bail ?
As per the Court 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
• Whether the production of child in conflict with law before the Board for enquiry under Section 14 and preliminary assessment into heinous offence under Section 15 of the JJ Act, 2015 where required, cannot be done while he is on anticipatory bail and his arrest/apprehension is compulsory?
The Court said that the required enquiry under Section 14 and preliminary assessment into heinous offence under Section 15 of the JJ Act 2015 where required, can be done while the child in conflict with law is on anticipatory bail.
[Mohammad Zaid v State of U.P, 2023 SCC OnLine All 230, decided on 24-05-2023]
Advocates who appeared in this case :
Counsel for Applicant:- Advocate Brij Raj Singh , Advocate Rajrshi Gupta, Senior Advocate Dileep Kumar, Advocate Shambhawi Shukla, Advocate Deepak Kumar Srivastava, Advocate Ramesh Chandra Yadav, Advocate Om Prakash Vishwakarma, Advocate Ramanand Gupta, Advocate Sanjay Kumar Yadav, Advocate Mohd. Akbar Shah Alam Khan, Advocate Rameshwar Prasad Mishra, Advocate Rajneesh Kumar Upadhyay, Advocate B.N.Singh, Advocate Manish Kumar Singh, Advocate Istyak Khan, Advocate Abdul Majeed, Advocate Sufia Saba, Advocate Gauri Dubey, Advocate Gautam Dubey, Advocate Santosh Kumar Tiwari, Advocate Shashikant Mishra,Advocate Akhilesh Singh, Advocate Shivam Yadav, Advocate Vikrant Singh Parihar, Advocate Ashutosh Kumar Pandey, Advocate Arjit Srivastava, Advocate Usha Srivastava, Advocate Vinod Kumar Srivastava, Advocate Anoop Singh, Advocate Ashok Kumar Singh, Advocate Babu Lal Ram, Advocate Rajesh Kumar Sachan, Advocate Shailendra Kumar Rai, Advocate Anil Kumar Dubey, Advocate Vinit Mishra, Advocate Meena Mishra, Istyak Khan, Advocate Munna Tiwari, Advocate Amit Daga, Advocate Umesh Chandra Shukla, Samir Srivastava, Advocate Ravitendra Pratap Singh Chandel, Advocate Tabrez Ahmad, Advocate Aishwarya Pratap Singh, Advocate Shri Niwash Yadav, Advocate Ravi Prakash Singh Yadav, Advocate Mujiburrahman, Firoz Haider, Advocate Rohit Nandan Singh;
Counsel for Opposite Party:- Government Advocate.
