Law pertaining 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. Recently, Madhya Pradesh High Court has opined that a juvenile is not entitled to move an application under Section 438 of Criminal Procedure Code (hereinafter Cr.P.C.) for anticipatory bail.
The idea of releasing a person on bail even before his arrest, was for the first time floated by the 41st Law Commission of India after it was realized that the influential individuals have been able to successfully implicate their political and business adversaries in false cases. To avoid disgrace and detention in jail of the persons falsely implicated, it was conceived that the bail could be granted before the arrest is made. Also, once it could be reasonably ensured that the person would not tamper with the evidence and would be present for the trial as and when required by the court, arrest in such a case would be unjust, unfair and deprive the accused of the right to liberty.
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. The authors are of the opinion that the grant of anticipatory bail to a juvenile is not only in accordance to the spirit of Juvenile Justice Act, 2015 (hereinafter, JJ Act) but it would be in the best interest of the child and carving an exception in would hamper the justice delivery system.
THE DECISION OF THE MADHYA PRADESH HIGH COURT
The honorable High Court in March this year has opined that the juvenile is not entitled to move an application under Section 438 of Cr.P.C. for anticipatory bail and only the Juvenile Justice Board (hereinafter, JJB) is solely authorized to exercise the powers pertaining to the juveniles under the scheme of Cr.P.C. thereby, excluding the jurisdiction of the High Court or the Sessions Court over such matters. The bench had denied anticipatory bail to juvenile accused of commiting an offence under Section 307 read with Section 34 of the Indian Penal Code, on the basis of three broad arguments.
It is pertinent to note that the High Court of Kerala has rightly observed that the JJ Act also does not contain any provision which excludes the general application of the provisions of the Cr.P.C. including the anticipatory bail and wherever the legislature intended to give overriding effect to the statutory scheme of the Act over the provisions of general application contained in the Code, it has been specifically provided in the JJ Act of 2015.
Also, Section 12(1) of the Act deals with a situation where a child in conflict with law has been apprehended or detained by the police and is brought before the JJB. Its limitation in present discourse is that it comes into play once the child in conflict with law has been apprehended. In other words, this provision does not deal with a situation before the apprehension or detention of a child in conflict with law by the police or his appearance or production before the Board. Therefore, the provision contained in Section 12(1) of the Act does not take away the jurisdiction of the High Court or the Court of Session of granting anticipatory bail under Section 438 of Cr.P.C., which by implication is to be exercised before Section 12(1) comes into play. Therefore, the expression "notwithstanding anything contained in the Code of Criminal Procedure, 1973 " in Section 12(1) of the Act is applicable to granting of bail to a child who is alleged to be in conflict with law after his apprehension or detention by the police or appearance or production before the Board.
APPREHENSION v ARREST
Earlier in 2017, the Madras High Court in the case of K Vignesh. v State 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 'arrest' him. Section 10 can be produced at this juncture for a better understanding. It reads as follows: '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….'. A bare reading of the provision gives the impression that the child is to be apprehended by the police, and is not similar to the regular arrests made by the police.
The Madras High Court further held that, while enacting the Juvenile Justice (Care and Protection of Children) Act, 2015, the Parliament was aware of Section 46 of Cr.P.C. that prescribes the procedure for arrest of a person. Therefore, had the Legislature intended the police officer to be empowered of arresting the juvenile the Legislature would have very well used the expression 'arrest' instead of using the expression 'apprehend' in Section 10 of the JJ Act, 2015. The learned bench consequently inferred that the legislature has intentionally devoid the police of its power of arresting the juveniles and since a child in conflict with law cannot be arrested, there cannot be 'apprehension of arrest' and so an application at the instance of a child in conflict with law either before the High Court, the Court of Session and the JJB under Section 438 Cr.P.C. is not maintainable.
In the dictums where anticipatory bail to juveniles has been ruled out, the courts seems to have relied upon the assertion that the welfare of the child would be ensured by keeping the Child in an Observation Home or a place of safety and therefore the need for anticipatory bail is not pressing. The authors are of the opinion that the laws in any country should reflect the face of its society and deal with the problems therein, in a pragmatic way. Unfortunately, India follows more of a dogmatic legal system rather than dealing with the localized issue in a practical manner. The decision of HC of MP reflects the very tendency of Indian legal system. On books these observation homes are ideal places for reformation, very well ignoring the common knowledge of the fact that observation homes in every part of the country are overcrowded, lack basic facilities and infrastructure and are infamously known as 'hellholes'.
JJ Act is primarily a remedial statute and not a penal code and if Cr.P.C. has provisions pertaining to anticipatory bail, excluding its application from a remedial statute is not warranted. Also, the JJ Act is a beneficiary statute and if there seems to be any ambiguity, taking away the right of anticipatory bail from the juveniles would be contrary to the scheme and objective of the statute.
Himanshu Kr. Chaudhary is currently working on Dr. RMLNLU - UNICEF project 'Strengthening Child Protection Systemn in the State of Uttar Pradesh' in Gorakhpur Division as a Divisional Technical Resource Person and Anubhav Bijalwan is a fourth-year student of Dr. RMLNLU, Lucknow.