DR.
RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW
CODE OF CRIMINAL PROCEDURE
JUVENILES AND ANTICIPATORY BAIL: CONFLICTING DECISIONS OF HIGH
COURTS
SUBMITTED TO SUBMITTED BY
Dr. Prem Kumar Gautam Prachi Jain
Assistant Professor (Law) Section B, Enrolment No. 200101098
Dr. RMLNLU, Lucknow 5th Semester B.A.LL.B. (Hons.)
TABLE OF CONTENTS
1. Table of Contents ................................................................................................................ II
2. Index of Authorities ...........................................................................................................III
3. List of Abbreviations ...........................................................................................................V
4. Preface ..................................................................................................................................1
5. Introduction ..........................................................................................................................2
6. Literature Review .................................................................................................................3
7. Research Questions ..............................................................................................................4
8. Methodology ........................................................................................................................4
9. Apprehension v Arrest .........................................................................................................4
10. Arguments against maintainability of anticipatory bail application in High Court .............5
11. Arguments for maintainability of anticipatory bail application in High Court ...................8
12. Analysis................................................................................................................................9
13. Conclusion .........................................................................................................................11
14. References ......................................................................................................................... VI
INDEX OF AUTHORITIES
Supreme Court
Balchand Jain v State of MP (1976) 4 SCC 572. .................................................................................... 2
Gurubakash Singh Sibbia v State of Punjab (1980) 2 SCC 565. ........................................................ 2
Hema Mishra v State of UP 2014 SCC OnLine SC 40........................................................................12
Onkar Nath Agarwal v State 1976 Cri LJ 1142. ...................................................................................... 2
Salauddin Abdulsamad Shaikh v State of Maharashtra (1996) 1 SCC 667. ................................... 2
Sharat Babu Digumarti v Government (NCT of Delhi) 2016 SCC OnLine SC 1464. ................. 5
Union of India v GM Kokil 1984 Supp SCC 196. ................................................................................... 7
Vaishali Abhimanyu Joshi v Nanasaheb Gopal Joshi (2017) 14 SCC 373. .................................... 7
High Courts
In Re: Krishna Garai 2016 SCC OnLine Cal 6012. ............................................................................... 6
K Vignesh v State 2017 SCC OnLine Mad 28442. ............................................................................ 5, 8
Kamlesh Gurjar v the State of Madhya Pradesh 2016 SCC OnLine MP 7651. ............................ 8
Kapil Durgwani v State of Madhya Pradesh 2010 SCC OnLine MP 641 ....................................... 6
Krishan Kumar v State of Haryana CRM-M-19907-2020.................................................................12
P.V. Narasimha Rao v State 1998 Cri LJ 1762 (Mad) ........................................................................... 2
Preetam Pathak v State of Chhattisgarh 2014 SCC OnLine Chh 125. ............................................ 6
Pritam Singh v State of Punjab 1980 SCC OnLine Del 191 ................................................................ 2
Puran Singh v Ajit Singh 1984 SCC OnLine P&H 160. ....................................................................... 2
Satendra Sharma v State of Madhya Pradesh MCrC/4183/2014....................................................... 8
Tara Chand v State of Rajasthan 2008 (2) RCR (Cr) 764 (Raj). ....................................................... 6
Tejram Nagrachi Juvenile v State of Chhattisgarh 2019 SCC OnLine Chh 24. ........................... 7
Books
GP Singh, Principles of Statutory Interpretation (14th edn, 2015). .................................................. 9
Law Commission of India
Law Commission of India, 203rd report on section 438 of the Code of Criminal Procedure
(Amendment) Act, 1973 as amended by the Code of Criminal Procedure (Amendment) Act,
2005 (Anticipatory Bail) (2007)............................................................................................. 3
Law Commission of India, 41st report on the Code of Criminal Procedure, 1898 (1969) para
39.9 ......................................................................................................................................... 2
Law Commission of India, 48th report on some questions under the Code of Criminal
Procedure bill, 1970 (1972) para 31. ..................................................................................................... 2
Statutes
Juvenile Justice (Care and Protection of Children) Act 2015, s 10. .................................................. 5
Juvenile Justice (Care and Protection of Children) Act 2015, s 12. .................................................. 6
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, s 18. .................12
LIST OF ABBREVIATIONS
Abbreviations Full Form
& And
V Versus
All Allahabad
Cri Criminal
Edn Edition
FIR First Information Report
JJ Act, 2000 Juvenile Justice (Care and Protection of Children) Act, 2000
JJ Act, 2015 Juvenile Justice (Care and Protection of Children) Act, 2015
JJ Board Juvenile Justice Board
LJ Law Journal
MP Madhya Pradesh
P&H Punjab and Haryana
S Section
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Supp Supplementary
PREFACE
The legal position relating to grant of anticipatory bail to juveniles is in a state of flux in
India and the absence of the Supreme Court ruling has only added to the ambiguity. Various
High Courts have delivered conflicting opinions on the grant of anticipatory bail to the
juveniles. Consequently, there is a difference in perceiving the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015) vis-à-vis section 438 of the
Criminal Procedure Code (CrPC).
Recently, the Punjab & Haryana High Court, in Krishan Kumar v State of Haryana, granted
the anticipatory bail to a juvenile on the basis that the JJ Act, 2015 is silent on the aspect of
pre-arrest bail. This decision of the P&H High Court has again raised the issue of
maintainability of a pre-arrest bail application into the public discourse. The turf-war of
jurisdiction between different high Courts for grating or not granting the pre-arrest bail to the
juveniles has placed the juveniles at conundrum.
The authors is of the opinion that the grant of anticipatory bail to a juvenile is not only in
accordance to the spirit of JJ Act, 2015 but it would be in the best interest of the child. Denial
of the anticipatory bail to the juveniles could have far-reaching consequences for the child
including sending them to poorly maintained observation home, where life could take a turn
for the worse.
INTRODUCTION
Section 438 empowers the High Court or Court of Sessions to grant anticipatory bail which
means the court can order or give direction to release any person on bail even before the person
gets arrested. If the court is satisfied that anticipatory bail is necessary in the interests of justice
then only the court should pass such a direction. This provision becomes relevant when the
influential people try to implicate their rivals in false cases1 or where there is no reasonable
ground to hold a person in custody merely on the apprehension that will abscond or misuse his
liberty.2
When a person is arrested, the order of granting ‘anticipatory bail’ becomes operative. 3 Issuance
of warrant4 or issuance of summon5 also entitles an accused to apply for anticipatory bail. In the
case of Gurubakash Singh Sibbia v. State of Punjab6, a constitutional bench of the Supreme Court
clarified the distinction between an ordinary bail and an anticipatory bail and held that while the
ordinary bail is granted after the arrest has been made, the anticipatory bail is granted in
anticipation of arrest and is, therefore, effective at the very moment of arrest. The Supreme Court,
in Gurubakash Singh Sibbia v State of Punjab, laid down certain guidelines in light of the
conditions under Section 438 of the Code of Criminal Procedure, 1973. 7
Any High Court or the Court of Session shall have jurisdiction to entertain application for
anticipatory bail where the arrest is apprehended by the applicant, even though the FIR has
been registered elsewhere.8 The applicant can move an application for anticipatory bail before
the High Court under section 438 without taking recourse to the Court of Session.9
Juvenile Justice (Care and Protection of Children) Act, 2015 is a social welfare legislation and
had been enacted to take care of welfare of the children. The basic purpose behind enacting the JJ
Act, 2015 was to ensure that if a juvenile has been found to be indulged in an offence which is in
conflict with the law, then he or she should not face the same trial which other hardened
1
Law Commission of India, 41st report on the Code of Criminal Procedure, 1898 (1969) para 39.9.
2
Law Commission of India, 48th report on some questions under the Code of Criminal Procedure bill,
1970 (1972) para 31.
3
Balchand Jain v State of MP (1976) 4 SCC 572.
4 Puran Singh v Ajit Singh 1984 SCC OnLine P&H 160.
5 P.V. Narasimha Rao v State 1998 Cri LJ 1762 (Mad).
6 Gurubakash Singh Sibbia v State of Punjab (1980) 2 SCC 565.
7 Id.
8
Pritam Singh v State of Punjab 1980 SCC OnLine Del 191; Salauddin Abdulsamad Shaikh v State
of Maharashtra (1996) 1 SCC 667.
9
Onkar Nath Agarwal v State 1976 Cri LJ 1142.
criminal faces rather they should be tried in such a manner and environment where the focus is on
reformation and rehabilitation. The child should be encouraged him to live his life without
indulging any unlawful activity in future. This is exactly the purpose of putting the juvenile in
conflict with law, in the separate observation homes rather than in normal jail where he or she is
susceptible to be mixed up with the hardened criminals and eventually, becoming like them.
As far as the position of law in general cases of anticipatory bail is concerned, it is a settled
one, however, the position of law is not clear when it comes to the applicability of section
438 of CrPC with respect to juveniles in conflict with law. Since there is no authoritative
pronouncement by the Apex Court on the issue and the different High Courts seems to be
divided on this issue and have pronounced conflicting opinions, an inconsistency and
ambiguity has been created it law as far as the applicability of the JJ Act, 2015 vis-à-vis
section 438 of CrPC is concerned.
LITERATURE REVIEW
1. A column titled ‘Anticipatory Bail And Juveniles: An Ambiguous Tale’ (Chaudhary &
Bijalwan, 2019) discussed the difference between apprehend and arrest and concluded
that JJ Act, 2015 being a beneficiary statue, cannot be construed in such a way as to
taking away the rights of the juvenile with respect to anticipatory bail.
2. A report titled ‘Section 438 of the Code of Criminal Procedure, 1973 as amended by the
Code of Criminal Procedure (Amendment) Act, 2005 (Anticipatory Bail)’ (Law
Commission of India, 2007) envisages an in-depth study of the scope and ambit of the
CrPC, 1973 as well as the amended Section with respect to grant of anticipatory bail by
the High Court or Court of Sessions and made its recommendations.
3. A column titled ‘Anticipatory Bail and Children in Conflict with Law’ (Pachauri, 2020)
discussed different approaches adopted by different High Courts while interpreting the
interplay between JJ Act, 2015 and CrPC, 1973 and concluded that the objective and
purpose of the JJ Act, 2015 would be defeated if it has been allowed to stand as an
obstacle in front of the juvenile’s rights and liberties.
4. A column titled ‘Juvenile Justice Act – Exclusion of Provision of Anticipatory Bail’
(Chambers of Nitin Chopra, 2020) discussed the ratio of the Allahabad High Court’s
decision in case of Shahaab Ali v. State of U.P.
5. A paper titled ‘Law relating to Bail’ (Maharashtra Judicial Academy and Indian Mediation
Centre and Training Institute, 2016) deliberated upon the conditions and limitations which
can be placed before granting the anticipatory bail to the accused in case of non bailable.
6. A column titled ‘Anticipatory Bail And Its Laws’ (Deshpande, 2020) discussed all the
recent landmark judgments on law of anticipatory bail and the jurisdiction of High Court
and Court of Sessions to entertain anticipatory bail application.
7. An article titled ‘Anticipatory bail – A critical study’ (Sarda, 2012) comprehensively
highlighted the aim, evolution, nature and characteristics of anticipatory bail under CrPC.
8. A paper titled ‘Anticipatory Bail’ (Bhattacharya, 2016) discussed the Supreme Court’s
decision in Siddharam Satlingappa Mhetre’s case in which the SC laid down sufficient
guidelines to exercise the power of grant or refusal of anticipatory bail.
9. A book titled ‘R.V. Kelkar’s Criminal Procedure’ (Pillai, 2020) comprehensively deals
with the concept of anticipatory bail under section 438 of CrPC, 1973.
RESEARCH QUESTIONS
The objective behind this research work is to analyse the provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2015 vis-à-vis section 438 of the Criminal Procedure
Code. The research question is regarding whether an application for anticipatory bail under
section 438 of CrPC at the instance of a juvenile arrested under the Juvenile Justice (Care and
Protection of Children) Act, 2000 is maintainable before the High Court or Court of Session?
METHODOLOGY
The research work is based on the doctrinal methodology. Several cases, articles, reports,
books and internet sources have been used for doing the research work on the subject matter.
Due care has been taken in presenting the information.
APPREHENSION AND ARREST: SIMILAR OR DIFFERENT
A division bench of the Madras High Court, in K Vignesh v State, while answering a reference
matter had ruled that the anticipatory bail cannot be availed by the juveniles as the law has
empowered the police to merely apprehend the child and not to arrest him. 10 Further, the Court
10
K Vignesh v State 2017 SCC OnLine Mad 28442.
observed that the intention of the legislature was not to allow the police to ‘arrest’ the
juvenile, therefore, incorporated the term ‘apprehend’ instead of ‘arrest’.
Section 10 of the JJ Act can be produced at this juncture for a better understanding. It reads
as follows:
“Section 10: Apprehension of child alleged to be in conflict with law –
(1) As soon as a child alleged to be in conflict with law is apprehended by the police,
such child shall be placed under the charge of the special juvenile police unit or the
designated child welfare police officer, who shall produce the child before the Board
without any loss of time but within a period of twenty-four hours of apprehending the
child...”11
A mere perusal of section 10 suggests that it mandates the police only to apprehend the juvenile
and not to arrest him or her. Now, the question arises whether the ‘apprehend’ or ‘arrest’ made by
the police are similar, if not, what is the difference between them. Apprehending a person means
to confine, detain or touch the body of such person. It may also involves submission of a person
where the control is on the police officer. Therefore, in practical sense, there appears to be no
difference between to ‘arrest’ or ‘apprehend’ a juvenile.
ARGUMENTS AGAINST MAINTAINABILITY OF ANTICIPATORY BAIL APPLICATION IN HIGH COURT
It is a settled position of law that any special law shall prevail over the general laws. 12 A non-
obstante clause is provided under section 12 of the JJ Act, 2015 (or JJ Act, 2000) which gives
the JJ Act overriding effect over the other general laws and in effect excludes the application
of the provisions of CrPC. Consequently, the juveniles cannot file an application for
anticipatory bail in the High Court or Court of Session.
While dealing with an application for anticipatory bail under section 438 of the CrPC, the
Calcutta High Court, in the case of Krishna Garai13, held that the application for anticipatory
11
Juvenile Justice (Care and Protection of Children) Act 2015, s 10.
12
Sharat Babu Digumarti v Government (NCT of Delhi) 2016 SCC OnLine SC 1464.
13 In Re: Krishna Garai 2016 SCC OnLine Cal 6012.
bail would not be maintainable on the ground that the Juvenile Justice (Care and Protection of
Children) Act, 2000 (now repealed) is a special act and would prevail over the CrPC.
Section 12: Bail to a person who is apparently a child alleged to be in conflict with law —
(1) When any person, who is apparently a child and is alleged to have committed a
bailable or non-bailable offence, is apprehended or detained by the police or appears
or brought before a Board, such person shall, notwithstanding anything contained in
the Code of Criminal Procedure, 1973 or in any other law for the time being in force,
be released on bail with or without surety or placed under the supervision of a
probation officer or under the care of any fit person…”14
In Preetam Pathak v State of Chhattisgarh15, the Chhattisgarh High Court had rejected an
application for anticipatory bail filed by a juvenile on the ground that the High Court or Court
of Session cannot exercise the powers conferred under the provisions of section 438 of CrPC
to grant anticipatory bail to a juvenile in the light of Section 6(2) read with Section 12 of the
JJ Act, 2000. Though the High Court suggested the applicant to move an appropriate
application before the JJ Board under Section 12 of the JJ Act, 2000
However, now the question arose whether JJ Board has the jurisdiction to entertain an
application for anticipatory bail under JJ Act, 2015 (or JJ Act, 2000). The answer to this
question can be find in the judgement of the Madhya Pradesh (MP) High Court. In the case of
Kapil Durgwani v State of Madhya Pradesh16, a single judge bench of the MP High Court,
having disagreed with a Rajasthan High Court’s decision in Tara Chand v State of
Rajasthan17, held that Section 12 of the JJ Act cannot be held to have any overriding effect
over the Section 18 of the SC/ST Act. Further, the MP High Court held that section 12 of JJ
Act, 2000 does not provide any power to the JJ Board in relation to anticipatory bail which is
equivalent to section 438 of CrPC. Therefore, the JJ Board cannot grant anticipatory bail to a
juvenile neither under JJ Act nor under section 438 of CrPC.
Whether in light of the non-obstante provision under Section 12 of the JJ Act, 2015 which is pari
materia to the Section 12 of JJ Act, 2000, Section 437 and Section 439 of the CrPC can be
invoked by a juvenile for getting a bail order? A division bench of the Chhattisgarh High Court,
14
Juvenile Justice (Care and Protection of Children) Act 2015, s 12.
15 Preetam Pathak v State of Chhattisgarh 2014 SCC OnLine Chh 125.
16 Kapil Durgwani v State of Madhya Pradesh 2010 SCC OnLine MP 641.
17 Tara Chand v State of Rajasthan 2008 (2) RCR (Cr) 764 (Raj).
in the case of Tejram Nagrachi v State of Chhattisgarh18, held that the bail application for a
juvenile is not maintainable under sections 437 and 439 of CrPC. Therefore, the grant of bail to a
juvenile can only be dealt by the JJ Board under Section 12 of the JJ Act, 2015. It was held that
the jurisdiction under Section 439 of the Code is excluded by the use of the non- obstante clause
in Section 12(1) of the JJ Act. The Court opined that under the statutory scheme of the
JJ Act, a comprehensive provision has been made as to how a child in conflict with the law
has to be dealt with when he is apprehended and not released on bail.
While deliberating upon the purpose for enacting such a provision, the High Court resorted to
a Supreme Court’s decision wherein the Supreme Court held that where the purpose of
enacting a provision is clear and unambiguous, it has to be given full effect.19
In Union of India v G.M. Kokil20, the Supreme Court made a very relevant observation
regarding the non-obstante clause and reads as “the term “notwithstanding anything
contained in that Act” must mean notwithstanding anything to the contrary contained in that
Act and as such it must refer to the exempting provisions which would be contrary to the
general applicability of the Act...”
The High Court and Court of Sessions can only exercise their appellate and revisional powers
as contained in Sections 101 and 102 of JJ Act, 2015. A conjoint reading of Sections 4 and 12
of the JJ Act, 2015 provides that all the proceedings relating to a juvenile, including bail,
shall be considered by the JJ Board which has been constituted exclusively for the purpose of
dealing with the proceedings pertaining to a juvenile. JJ Act, 2015 conferred all the powers of
the JJ Board under to the High Court and the Court of Sessions but only when the proceeding
comes before them in appeal, revision or otherwise.
The MP High Court, in Satendra Sharma v State of Madhya Pradesh21, rejected an
application and held that the High Courts and Court of Sessions can also use the powers of
the JJ Board, however, only when the proceedings before them comes in appeal, revision or
otherwise except under sections 438 and 439 of the CrPC.
Also, the JJ Act does not envisage arrest of the juvenile in conflict with the law rather only
provides for apprehend the juvenile. The expression ‘child in conflict with law’ is defined
18
Tejram Nagrachi Juvenile v State of Chhattisgarh 2019 SCC OnLine Chh 24.
19 Vaishali Abhimanyu Joshi v Nanasaheb Gopal Joshi (2017) 14 SCC 373.
20 Union of India v GM Kokil 1984 Supp SCC 196.
21 Satendra Sharma v State of Madhya Pradesh MCrC/4183/2014.
in Section 2(13) of JJ Act and means “a child who is alleged or found to have committed an
offence and who has not completed 18 years of age on the date of commission of such offence.”
The Madras High Court, in K. Vignesh v. State22, observed that the intention of the Parliament
was not to empower a police officer to arrest a child in conflict with the law rather only to
apprehend them under the JJ Act, 2015. The apprehension of ‘arrest’ is a pre-requisite under
Section 438 of CrPC. However, this pre-requisition of arrest does not seem to be fulfilled in
case of juvenile, therefore, the High Court or the Court of Session cannot exercise the powers
under section 438 of CrPC to grant an anticipatory bail to a juvenile.
ARGUMENTS FOR MAINTAINABILITY OF ANTICIPATORY BAIL APPLICATION IN HIGH COURT
Juvenile Justice Board has been constituted under Section 4 of the JJ Act, 2015 and shall
have the powers conferred by the CrPC. Section 12(1) of the JJ Act, 2015 confers powers to
the JJ Board to grant bail to a child in conflict with law and who is an accused of a bailable or
non-bailable offence.
If the Juvenile Board rejects the bail application of the Juvenile then the Juvenile can file an
appeal under section 52 of the JJ Act before the Court of Sessions. If such appeal is dismissed
then the juvenile can filed a revision petition before the High Court under section 53 of the JJ
Act. The application for the grant of bail under section 12 of the JJ Act can only be filed by
the Juvenile after he has been brought before the JJ Board.
Can a juvenile file an anticipatory bail application if he has not been arrested or detained? A
harmonious construction of section 12 of the JJ Act and section 438 of CrPC suggests that
section 12 only has over riding effect over sections 436 and 437 of the CrPC and not over
section 438 of CrPC. Hence, there is no bar to file an anticipatory bail by or on behalf of the
juvenile.23
It is a well-settled position in law that where the two acts or provisions are in conflict or
inconsistent, the provisions of special law shall prevail over the provisions of general legislation
only to the extent of that inconsistency.24 However, in case there is no inconsistency between the
provisions of general and special law, and the general legislation provides
22
K Vignesh v State 2017 SCC OnLine Mad 28442.
23 Mohan (In Jail) v State of Chhattisgarh 2005 Cri LJ 3271.
24 GP Singh, Principles of Statutory Interpretation (14th edn, 2015).
something which is not prescribed by the special legislation, the provisions of general
legislation would prevail.
The Allahabad High Court, in Shahaab Ali and Ors v State of UP25, observed that the provisions
of the CrPC may apply and operate in areas where the JJ Act, 2015 is either silent or constructs
no special or distinct measure. It was held that the non-obstante clause in Section 12 is only
indicative of the JJ Board being conferred the power to grant bail notwithstanding any restraint
The implied exclusion of Section 438 essentially flows from Section 1(4) of the JJ Act, 2015
which is a clear manifestation of the legislative intent that the provisions of the 2015 Act
dealing with arrest and detention must necessarily prevail over any other law for the time
being in force.
Sections 10 and 12 of the said Act deal with grant of regular bail and not with pre-arrest bail.
As the JJ Act, 2015 does not put a specific bar to file a petition for grant of pre-arrest bail by
a juvenile, therefore, a petitioner should appear before JJ Board for seeking bail is not proper.
Also, the JJ Act, 2015 does not take away the power and jurisdiction of High Court or Court
of Session regarding bail as provided under Sections 438 and 439 of the CrPC26 and an
application for grant of bail would be maintainable before the Court of Sessions and the High
Court.
The Allahabad High Court, in Shahaab Ali and Ors v State of UP, noted that the words
‘arrest’ and ‘apprehend’ are synonymous and can possibly be used as substitutes of each
other. Further, the Court observed that Section 438 of the CrPC will apply before or after the
registration of a First Information Report (FIR) but before the arrest by the police.
ANALYSIS
The JJ Act of 2015 is a comprehensive, independent and self-contained legislation laying down a
distinct procedure to be followed when a child or juvenile is arrested or detained by the police. It
envisages some special safeguards for the child who is alleged to be in conflict with law. The
argument that application of section 438 of CrPC, if allowed, would interfere with the procedure
established by JJ Act and disrupt the whole purpose and objective of the JJ Act, does not hold
good because it would effectively put a restriction on the liberty of a child and would
25
Shahaab Ali v State of UP 2020 SCC OnLine All 45.
26 Mohan (In Jail) v State of Chhattisgarh 2005 Cri LJ 3271.
defeat the basic principle of criminal justice system i.e. a person shall be presumed to be
innocent till he is found guilty by the court of law.
As per reasoning of the High Courts of MP and Chhattisgarh, the Section 438 of CrPC cannot
be invoked by a child because the JJ Act, 2015, being a special legislation, would prevail over
the provisions of the CrPC. However, the author believes that this view of these High Court is
based on literal interpretation of the statutory provisions and has been succinctly rebutted by
the Allahabad High Court in the case of Shahaab Ali v State of UP27. The Allahabad High
Court held that the JJ Act, 2015 is silent on the issue of anticipatory bail, therefore, cannot be
given overriding effect as far as the application of section 438 of CrPC is concerned.
However, it is to be noted that section 10 read with section 12 of the JJ Act, 2015 impliedly
excludes the applicability of section 438 of CrPC, once an FIR is registered.
Section 438 is applicable on “any person” who approach the court with the apprehension of
its arrest and want to secure an anticipatory bail. Therefore, excluding the application of
section 438 for a specific category of persons i.e. juveniles would be prejudicial to the
interests of the juveniles.
Every child has the right to freedom and personal liberty enshrined in constitution which
needs to be protected by the constitutional courts. A child or person cannot be put behind the
bars only on the basis of an FIR in which she or he has been alleged to commit an offence or
crime. Often the FIR is lodged with the ulterior motive, hence a child cannot be allowed to
become a victim of a false FIR.
Therefore, it is submitted that if the High Court or the Court of Session is satisfied that the
child is entitled to secure an anticipatory bail then the technical and strict interpretation of the
JJ Act, 2015 should not become a reason for the Courts not to grant the anticipatory because
that, if allowed to happen, would defeat the beneficial and remedial nature of the JJ Act, 2015
itself.
It is the duty of a High Court to ensure that the constitutional and basic human rights of a
child do not get violated. It would defeat the purpose of anticipatory bail if the application of
a child for anticipatory bail is rejected on the ground of non-maintainability and literal
interpretation of JJ Act, 2015.
27
Shahaab Ali v State of UP 2020 SCC OnLine All 45.
The power of High Courts to grant anticipatory has been observed by the Supreme Court in
the case of Hema Mishra v State of UP28. The SC held that even though the State of U.P. has
excluded the application of section 438 of CrPC in the state, the High Court has power to
grant anticipatory bail in writ jurisdiction in appropriate cases.
It cannot be the intention of the legislature that such juvenile would be first apprehended and
then produce before JJ Board for bail, whereas other persons who have been accused of more
serious and heinous crime, would get the benefit of section 438 of CrPC.
The P&H High Court, in Krishan Kumar v State of Haryana, held an inference cannot be
drawn that the legislature intended to debar a child from seeking a relief of pre-arrest bail
because if it was so, then a specific provision in that regard would have been there. The High
Court drew an analogy with section 18 of the SC/ST Act, 1989 29 which clearly bars the grant
of pre-arrest bail to a person alleged to have committed an offence under the said act.30
CONCLUSION
The High Courts which denied the anticipatory bail seem to have based their decision on the
assumption that since the child would only be apprehended by the police and his welfare
would be ensured in the Observation Home by the authorities even though he did not secure
anticipatory bail. This assumption is wrongly based upon dogmatic legal system where the
liberties of a person are not given much importance. Also, in practical sense, there is not
much difference between ‘arrest’ and ‘apprehend’ when it comes to practical purposes.
The remedial and beneficial nature of the JJ Act, 2015 should not be allowed to turn into a
Penal law. Since the JJ Act, 2015 does not have any provision dealing with anticipatory and
also there is no provision under JJ Act, 2015 which expressly excludes the application of
section 438 of CrPC, a juvenile cannot be denied its right to apply for anticipatory bail under
the provisions of CrPC. The author hopes that the Supreme Court will soon intervene and
conclusively settle the position of law as it greatly impacts the liberty as well as well-being of
such children.
28
Hema Mishra v State of UP 2014 SCC OnLine SC 40.
29 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, s 18.
30 Krishan Kumar v State of Haryana CRM-M-19907-2020.
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in-conflict-with-law/
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