Child In Conflict With Law Can Apply For Anticipatory Bail U/S 438 CrPC, Sec 12 (1) JJ Act Not A Bar :High Court Of Kerala [Read Order]

Can a child in conflict with law apply for anticipatory bail? And is an application for anticipatory bail at the instance of a child in conflict with law maintainable before the high court or the Court of Session?Justice R Narayana Pisharadi of Kerala High Court has decided the questions as he held that a child in conflict with law can very well apply for anticipatory bail as there is nothing in the Juvenile Justice (JJ) Act which bars him/her from doing so.He also held that an application for anticipatory bail under Section 438 of the Criminal Procedure Code at the instance of a child in conflict with law is maintainable before the high court or the Court of Session.These two questions faced the high court as a minor identified as 'Mr X' moved a pre-arrest bail plea.The minor was accused of being involved in an attack on a person by some 50 people with deadly weapons on March 31, 2018.The minor was accused of wrongfully restraining the complainant while the other accused assaulted him with an intention to kill.The minor represented by advocates T Madhu and CR Saradamani moved the court for anticipatory bail. The State of Kerala was represented by Public Prosecutor O Chandrasenan.Section 438 CrPC makes no distinction b/w arrest and apprehendWhile considering his plea, Justice Pisharadi also considered the Madras High court decision in K Vignesh vs State wherein the court has given importance to the fact that Section 10 of the JJ Act provides for apprehending a child in conflict with law by the police and not for arresting him and in the absence of any arrest, no question of invoking the provision contained in Section 438 of the Code arises."That court (Madras HC) is of the view that since a child in conflict with law cannot be arrested, he/she need not apply for anticipatory bail. With great respect, I am not in a position to agree with this view," said Justice Pisharadi."Section 10 of the Act empowers the police for apprehending a child alleged to be in conflict with law. It does not provide for arresting a child alleged to be in conflict with law. Section 46(1) of the Code deals with how arrests are to be made. It provides that in making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. Apprehending a person necessarily involves touching or confining the body of that person or submission of the person to the control of the police officer. Therefore, apprehending a person involves arrest of the person. Apprehending a person curtails his personal freedom and liberty. In my view, merely for the reason that Section 10 of the Act provides for apprehending a child in conflict with law and not for arresting him, it cannot be held that an application under Section 438 of the Code by him/her is not maintainable,” he added.Sec 12 (1) JJ Act doesn’t bar child in conflict with law from invoking Sec 438 CrPCThe court also considered the question whether Section 12(1) of the Act creates a bar for the application of Section 438 of the Code.It held that Section 12 (1) JJ Act does not take away the jurisdiction of the high court or the Court of Session under Section 438 of the Code even by implication.“As per Section 12 of the Act, 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 the Juvenile Justice Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, or in any other law for the time being in force, be released on bail unless the Board is satisfied that there are reasonable grounds for believing that granting bail to him is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice. Section 12(1) of the Act, to a large extent, obliterates the distinction between a bailable offence and a non-bailable offence as far as a child in conflict with law is concerned because whatever be the nature of the offence, bailable or non-bailable, he is entitled to be released on bail unless the proviso to that provision applies. The question is whether Section 12(1) of the Act, for that reason, creates a bar for the application of Section 438 of the Code”.Section 12(1) of the Act deals with a situation where a child in conflict with law is apprehended or detained by the police or appears or brought before the Board. It deals with the procedure to be followed after apprehending a child in conflict with law. When a child in conflict with law is apprehended or detained or appears or brought before the Board, the provision contained in Section 12(1) of the Act comes into play. The expression "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)" in Section 12(1) of the Act is applicable...

Child In Conflict With Law Can Apply For Anticipatory Bail U/S 438 CrPC, Sec 12 (1) JJ Act Not A Bar :High Court Of Kerala [Read Order]

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