No Bar To Grant Anticipatory Bail To Child In Conflict With Law: Punjab & Haryana High Court Follows 'Broader View' Amidst Conflicting Opinions

Taking a "broader view", the Punjab & Haryana High Court has held that there is no bar under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) to grant bail to Child In Conflict with Law (CICL).Acting Chief Justice GS Sandhawalia and Justice Lapita Banerji said, "Once a protection is granted to adults as such under Section 438 Cr.P.C. on the ground of apprehension of arrest, we do not seem any tangible reasons as to why the moment a juvenile is under the threat of apprehension, why the benefit of the provisions of Section 438 Cr. P.C. should be denied."In the absence of any exclusion as such that the provisions of Section 438 Cr.P.C. would not apply, we do not see any valid reason as to why any restrictive view is to be taken. It is time and again held that bail is the rule and denial is the exception and for a child to be placed at a disadvantage on account of the fact that the word “arrest” has not been mentioned in the Act does not do any justice to the purpose of the Act, added the Court.Not using the word "arrest" in the Juvenile Justice Act is "a conscious act of the legislation keeping in mind the beneficial provisions as such the omission as such has been made" and it would not debar the children from the benefit of the provisions of Section 438 of the CrPC, the bench clarified.The Court was hearing a batch of 33 petitions regarding the maintainability of the anticipatory bail application by a juvenile under Section 438 Cr.P.C. since conflicting views have been taken by Single Judges of the Punjab & Haryana High Court and other High Courts in view of provisions of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 After hearing the submissions, the Court noted that the different High Courts have taken conflicting opinions on the issue and there is a "Broader View" and "Restricted View." Broader View Taken By Other High CourtsThe Court noted that Chattisgarh High Court in Mohan vs. State of Chhattisgarh, [2005 (1) CGLG 320], "The application for grant of anticipatory bail under section 438 of the Code of Criminal Procedure, 1973 at the behest of CICL before the High Court or the Court of Sessions is maintainable under the law and the said remedy is not excluded by operation of Section 12 of the Act of 2000 or Section 12 of the Act of 2015."The Division Bench of the Calcutta High Court in Miss Surabhi Jain (Minor) and others vs. The State of West Bengal [C.R.M. 405 of 2021] took a similar view while keeping in mind that several discourses were made at the international level and on stepping in of the United Nations appreciating the holistic approach regarding development, care and protection of the children who were coming in conflict with law under the Juvenile Justice System.The bench noted that it was held that the word 'arrest' was not used in the 2015 Act and the word 'apprehension' having been used would amount to curtailing the liberty of a person. Resultantly, the judgment in Gurbax Singh Sibbia's and Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) referred to that a pro-liberty view is to be kept in mind against arbitrary arrests and humiliation. The lack of inconsistency between the 2015 Act and the provisions of Section 438 Cr.P.C. were dwelled upon to come to the conclusion that "the CICL could not be denied the benefit as such while holding that the due importance to the considerations provided under Section 12 of the 2015 Act is to be kept in mind and would have to be followed," it added.Reliance was also placed on Allahabad High Court's decision in Mohammad Zaid and others vs. State of U.P. and others, [2023 (248) AIC 923] wherein it was held that, "A child in conflict with law will have an equal and efficacious right to seek his remedy of anticipatory bail under Section 438 Cr.P.C. like any other citizen, but with the restrictions imposed in the said provision itself."Restricted View Taken By Other High CourtsThe Court also referred to the restricted views taken by various High Courts, which were of the opinion that the anticipatory bail application by the Juvenile under Section 438 Cr. P.C will not be maintainable.K. Vignesh vs. State, 2017, the Division Bench of the Madras High Court, while deciding the reference, came to the conclusion that there are lot of safeguards provided to the CICL under the Act and he could not be arrested. Therefore, the legislature did not consciously empower the police to arrest the child and, therefore, the application under Section 438 Cr.P.C. was not maintainable, it noted.High Court Follows Broader Prospective In Present CaseWhile following the broader view, the High Court said that "Article 39 of the Constitution provides that certain principles of policy are to be followed by the State, whereas sub-clause (3) provides that the State, in principle, shall direct its policies towards securing the health and strength of workers, men and women and the tender age of children...

No Bar To Grant Anticipatory Bail To Child In Conflict With Law: Punjab & Haryana High Court Follows 'Broader View' Amidst Conflicting Opinions

Aiman J. Chishti

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