'Child In Conflict With Law Can't Be Treated As Under Trial Prisoner U/S 436-A CrPC': Madhya Pradesh High Court

The Madhya Pradesh High Court, Gwalior Bench recently held that a Child in Conflict with Law (CCL) cannot be treated as an undertrial prisoner as contemplated under Section 436-A CrPC, since arrest/ confinement/ apprehension are not contemplated in Juvenile Justice (Care and Protection of Children) Act, 2015. Justice Anand Pathak was essentially dealing with a criminal revision preferred by a CCL, challenging the order passed by the lower court, whereby his appeal was dismissed and the order passed by the Juvenile Justice Board was affirmed. As per the case diary, the CCL, aged 14, was facing allegations of committing rape upon a 3-year-old girl. Moreover, the medical reports of the victim supported the allegations levelled against him. He was in correction home/remand and was facing proceedings before the JJB for offences punishable under Section 376 IPC and under Section 5, 6 POCSO Act. The CCL prayed for his release citing the period of retention in remand/correction home. He also raised the legal question that as per the provision under Section 436-A CRPC, he had suffered more than two years of incarceration, and therefore, he ought to be released on bail because maximum retention/detention for CCL in remand home can only be three years. He argued that since he had completed more than half of the period of detention, his case for bail had merit. Taking note of the pleadings of the CCL, the Court framed the following questions for its consideration- "1. Whether a child in conflict with law completes more than one half of total period of retention of three years in special home, then whether he is entitled to avail the benefit of Section 436-A of Cr.P.C.? 2. Whether a child in conflict with law can be treated as under trial prisoner as contemplated under Section 436-A of Cr.P.C.? 3. Any additional submission related to this question can also be addressed by the learned amici curiae in the matter." The CCL submitted that the Act of 2015 is a beneficial and benevolent legislation, and therefore, is to be construed to have incorporated the provisions impliedly. Building on this argument, he submitted that the application under Section 436-A CrPC is one such clause which offers the welfare of CCL and helps to achieve the general objective of the Act of 2015, and that the same does not exclude CrPC in expressed terms. Therefore, he submitted that relevant provisions such as Section 436-A CrPC could be borrowed here for the benefit of CCL. Mr. V.D. Sharma, the Amicus Curiae, submitted that on a careful reading of Section 1(4) of the Act, 2015 and Section 5 CrPC, it is clear that the former would prevail over the latter. He placed his reliance on the decision of a division bench of the Court in Ankesh Gurjar @ Ankit Gurjar v. The State of M.P, wherein it was concluded that Section 12 of the Act of 2015 is a complete code in itself qua the subject of bail. Therefore, he asserted that general provisions as to Bail and Bond as referred under Section 436-A CrPC has no applicability in relation to the bail of Juvenile. Thus, according to him, Section 436-A CrPC cannot be attracted in any case, relating to Juveniles. Addressing the point regarding the Act of 2015 being a beneficial legislation, he submitted that it is specifically meant to deal with all matters relating to Children and that vide Section 3 of the Act of 2015, the legislature had intended to provide certain principles which are to be followed while implementing the provisions of the Act of 2015. He further submitted that on a conjoint reading of Section 3(xii) with Section 12, coupled with Rule-8 of the 2016 Rules of the Act of 2015, it can be understood that apprehension/detention of the child is an exception and should be a matter of last resort and that too by recording reasons for doing the same. Therefore, Mr. V.D. Sharma submitted that that the purview of CrPC has been taken away from the Act of 2015. Mr. S.K. Sharma, another Amicus Curiae appointed by the Court, came up with a different point of view. Elucidating the historical background of Section 436-A CrPC, he submitted that the said provision came into force by way of Code of Criminal Procedure (Amendment) Act, 2005, whereas, Juvenile Justice (Care and Protection of Children) Act, 2000 (Predecessor of Act of 2015) is prior in time. Therefore, he argued that the non obstante clause of Section 1(4) of the Juvenile Justice Act, 2000 (predecessor of the Act of 2015) did not have any occasion to consider Section 436-A CrPC. He further submitted that since the concept of Section 436-A CrPC originated from different judgments of the Apex Court and was based on Article 21 of the Constitution of India, therefore, even if there was a bar, existing impliedly under Section 1(4) Act of 2015, the same cannot hold good. He asserted that as per the provisions of the Act of 2015, certain presumptions...

'Child In Conflict With Law Can't Be Treated As Under Trial Prisoner U/S 436-A CrPC': Madhya Pradesh High Court

Zeeshan Thomas

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