26 March 2019 1:05 PM GMT
The High Court of Madhya Pradesh has held that a juvenile is not entitled to move application under Section 438 of Cr.P.C. for anticipatory bail.The petitioner, aged 17, was an accused in an FIR lodged for committing offences under section 307 r/w section 34 of the Indian Penal Code. The bench of Justice Virender Singh of Indore Bench of High Court of Madhya Pradesh observed that a...
The High Court of Madhya Pradesh has held that a juvenile is not entitled to move application under Section 438 of Cr.P.C. for anticipatory bail.
The petitioner, aged 17, was an accused in an FIR lodged for committing offences under section 307 r/w section 34 of the Indian Penal Code.
The bench of Justice Virender Singh of Indore Bench of High Court of Madhya Pradesh 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.
"A conjoint reading of both Sections 4 and 12 of the Act reveals that to deal with all the proceedings in respect of juvenile, including bail, Juvenile Board, constituted exclusively for this purpose, is the appropriate authority. The Act envisages that the powers conferred on the Board by or under this Act can be exercised by the High Court and the Court of Sessions, only when the proceeding comes before them in appeal, revision or otherwise. Section 52 of the Act gives right to a juvenile, who is accused of any bailable or non-bailable offence, to file appeal against the order of refusal of bail by the Board and Section 53 of the Act provides that he can also file revision against any order passed by the competent authority or by Sessions Court before the High Court", observed the Court.
"The Act, 2015 further makes it clear that bail plea of a juvenile can only be entertained when he is arrested or detained or appears or is brought before the Board, and not otherwise. In fact, no provision in the Act or in the Code of Criminal Procedure enables the juvenile to move an application for anticipatory bail either before the Court of Sessions or High Court or even before the Board, which has been exclusively constituted for the purpose of dealing with the proceedings pertaining to a juvenile. Reason appears behind this is that the Act makes the bail a rule and jail an exception", Court added.
The bench while dismissing the bail application under section 438 Cr.P.C. referred to couple of decisions of High of Madhya Pradesh holding that the Board has no jurisdiction to entertain application under Section 438 of Cr.P.C. since the provisions of Section 12 of the Juvenile Act, 2000, do not provide such powers to the Board which is equivalent to Section 438 of Cr.P.C.
Conflicting view by Kerala & Chattisgarh High Courts
The High Court of Kerala however had held in June 2018 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.
"It does not deal with a situation before apprehending a child in conflict with law. 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 under Section 438 of the Code even by implication", held the High Court of Kerala.
The court also referred to a judgment of the Chhattisgarh high court wherein it was held that "there is no warrant for conclusion that non obstante clause contained in Section 12 of the Act of 2015 completely excludes the availability of remedy of applying for grant of anticipatory bail by a CICL, who is apprehending his arrest on the accusation of commission of any offence. The only provision for grant of bail as contained under Section 12 of the Act of 2015, which deals with application for grant of bail by a CICL applies, when he is apprehended or detained by the police or appears or brought before the Board on the allegation of having committed a bailable or non bailable offence".