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Anticipatory Bail Application By Juvenile Under S. 438 CrPC In Writ Petition Not Maintainable: Telangana High Court

Sparsh Upadhyay
3 July 2021 2:21 PM GMT
Anticipatory Bail Application By Juvenile Under S. 438 CrPC In Writ Petition Not Maintainable: Telangana High Court
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The Telangana High Court has ruled that filing of an anticipatory bail application by a juvenile under Section 438 of CrPC in a writ petition is not maintainable, and that the juvenile has to avail the remedy under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The Bench of Justice K. Lakshman ruled thus while noting that under the Juvenile Justice...

The Telangana High Court has ruled that filing of an anticipatory bail application by a juvenile under Section 438 of CrPC in a writ petition is not maintainable, and that the juvenile has to avail the remedy under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The Bench of Justice K. Lakshman ruled thus while noting that under the Juvenile Justice (Care and Protection of Children) Act, 2015, there was no provision for grant of anticipatory bail.

The Court further observed that an application seeking anticipatory bail under Section - 438 of Cr.P.C. at the instance of a child in conflict with law was not at all maintainable.

In arriving at this conclusion, the Court noted that a lot of safeguards were provided to the child in conflict with law in the event the child is apprehended by the police and thus, a child in conflict with law cannot be arrested, the child in conflict with law need not apply for anticipatory bail.

Bail to juveniles

A perusal of Sections 437 and 439 of Cr.P.C. and Sections - 8, 10, and 12 of the JJ Act, 2015 reveals that power in respect of grant of bail to a juvenile is more liberal in the nature of command under Section 12 (1).

Herein it may be noted that a child in conflict with the law apprehended or detained is, as of right, entitled for bail irrespective of whether the offence said to have been committed by him is bailable or non-bailable.

However, as per the proviso to sub-section (1) of Section 12, the Board may refuse to grant bail only in the circumstances enumerated in the said provision.

The only rider for not releasing the apparent juvenile is that whenever there appears reasonable grounds for believing that the release is likely to bring that person (Juvenile) into association with any known criminal or expose the said person to moral, physical or psychological danger or his release would defeat the ends of justice, the Board shall record the reasons for denying the bail and circumstances that led to such a decision.

The said rider as contained in the proviso to Section 12 (1) requires the Board to record reasons for denying the bail. It would mean that ordinarily, the bail is to be allowed to a juvenile. The denial being exceptional on certain reasons to be recorded by the Board as provided in the proviso.

Observing this, the Court refused to grant Pre-arrest bail to a juvenile and gave him the liberty to him to avail remedy under Section - 12 of the JJ Act, 2015.

He has been booked under Section - 354 of IPC and Section - 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012.

Conflicting rulings of different High Courts of the Country

It is important to note that under the Juvenile Justice Act, there is no express provision that enables a juvenile to move an application for anticipatory bail, and that is why different High courts of the Country have expressed divergent views on this point.

In 2019, the Jaipur bench of the Rajasthan High Court had held that an anticipatory bail application under Section 438 of CrPC may be moved by a juvenile apprehending arrest.

It was held therein that "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".

In the year 2018, Justice R. Narayana Pisharadi of Kerala High Court had 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.

The Kerala High Court has 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.

However, in 2019 the High Court of Madhya Pradesh had held that a juvenile is not entitled to move an application under Section 438 of Cr.P.C. for anticipatory bail.

The bench of Justice Virender Singh of Indore Bench of High Court of Madhya Pradesh had observed that a conjoint reading of section 4 and 12 of the Juvenile Act revealed that only a duly constituted Juvenile Justice Board can exercise the powers conferred by the Code of Criminal Procedure, 1973 in respect of a juvenile offender.

Again, in the case of XXX v. State of Madhya Pradesh (MCRC No. 4183 of 2014) the Madhya Pradesh High Court had held that,

"This Court is of the view that application for grant of anticipatory bail preferred by the juvenile cannot be entertained by the High Court or the Court of Session by applying the provision contained under Section 6(2) of the Act. The powers conferred on the Board can be used by High Court and the Court of Session only when proceedings come before them in appeal, revision or otherwise except under Section 438 and 439 of Cr.P.C."

Further, in the case of XXX v. State of Madhya Pradesh reported in 2010 (IV) MPJR 155 , the High Court of Madhya Pradesh had even held that "even the Juvenile Board has no jurisdiction to entertain anticipatory bail application."

Earlier in 2017, the Madras High Court in the case of XXX v. State (CORAM: Justice S. Nagamuthu and Dr Justice Anita Sumanth) had ruled that an application seeking anticipatory bail under Section 438 Cr.P.C. at the instance of a child in conflict with law is not at all maintainable as the law (Juvenile Justice Act) has empowered the police to merely 'apprehend' the child and not 'arrest' him.

In Birbal Munda v. State of Jharkhand, the Jharkhand High Court considering the definitions and provisions of the JJ Act, 2015 held that anticipatory bail is maintainable.

Recently, the Gujarat High Court has observed that there is no express bar of application of anticipatory bail under sec. 438 CrPC to the children in conflict with law as covered by the Juvenile Justice Act, 2015.

A Single Judge Bench comprising of Justice AY Kogje observed thus:

"…this Court is of the opinion that there is no expressed bar of application of Section 438 of the Code to the children in conflict with law covered by the Act, 2015 and in absence of expressed bar of application of Section 438 of the Code, there is no reason to imply such bar more particularly in the facts of the present case where the applicant who is juvenile is not even named as an accused and has raised a apprehension for being impleaded on extraneous consideration."

Case title - Mohammed Bin Ziyad v. State of Telangana & another

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