In a significant order, the Punjab & Haryana High Court has held (on 24th of July) that a petition for grant of pre-arrest bail (also known as Anticipatory Bail) by a juvenile "cannot be held to be not maintainable."
The bench of Justice H.S. Madaan observed,
"It could certainly not be the intention of the legislature that such juvenile should be first apprehended and then produce before Juvenile Justice Board, in the process denying relief to a juvenile, which is available to the other persons, who are accused of heinous offences."
In the present case, an FIR (which also included the name of the present juvenile) was registered after a dispute erupted between two families in a village in Ellenabad tehsil of Sirsa District in Haryana.
The counsel for the petitioner/accused contended before the High court that under the 'Juvenile Justice (Care and Protection of Children) Act, 2015' (hereinafter referred to as the Act), there is no specific bar to the filing of the petition for grant of pre-arrest bail by a juvenile.
The counsel's central argument was that Sections 10 and 12 of the said Act deal with grant of regular bail and not with pre-arrest bail, therefore saying that a petitioner should appear before the 'Juvenile Justice Board' for seeking bail is not proper.
The order of the Court
The bench acknowledged the fact that the Juvenile Justice (Care and Protection of Children) Act, 2015 is a piece of social welfare legislation, which was enacted to take care of the welfare of the children and to avoid their turning into hardened criminals.
The court also observed that the basic purpose of this legislation was to ensure that a child under the age of 18 some time coming in conflict with the law by committing an offence is to be tried in a manner and under such an environment, which take him to the path of reformation rather than allowing such children to mix up with criminals in the jail and themselves turning into hardened criminals.
Further, the Court noted the fact that this is exactly the purpose of putting the juvenile in conflict with the law, in the separate observation homes rather than in normal jail.
The court further observed
"Even if a juvenile in conflict with law is found to have committed some offence, then instead of awarding deterrent punishment, his rehabilitation and social integration is sought."
Significantly, the order of the court noted,
"If this special enactment is silent as regards a particular provision (Pre-arrest Bail) then that has to be read with the general law i.e. (the) Criminal Procedure Code (1973). An inference can certainly be not drawn that the legislature intended to debar a juvenile from seeking relief of pre-arrest bail. If it was (so), then a specific provision in that regard would have been there on the analogy of Section 18 'The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,' which clearly bars grant of pre-arrest bail to a person alleged to have committed (an) offence under the said act." (emphasis supplied)
The bench further said that "even otherwise, the Juvenile Justice (Care and Protection of Children) Act, 2015 providing that children below (the) age of 18 years coming within (the) definition of (a) juvenile is to be treated with kindness and compassion even if they are found in conflict with law."
The court also referred to the Apex court's ruling in the case of Km. Hema Mishra Versus State of U.P. And others, 2014(1) CCR 385, whereby it was observed that in the State of Uttar Pradesh, there is no provision in the Cr.P.C. for grant of anticipatory bail but even then, the High court has the power to grant anticipatory bail in writ jurisdiction in appropriate cases.
[Note - The Uttar Pradesh government has reinserted the provision of anticipatory bail (Section 438 of the CrPC) in the State with effect from June 6, 2019. ]
Under the circumstances, the Punjab & Haryana High Court said that "the petition in hand is found to be maintainable".
Lastly, the court directed the petitioner to join the investigation by contacting the Investigating Officer within seven days from the date of order and render all sort of co-operation. The petitioner was also asked to surrender his passport before the Investigating Officer, if he has got one, otherwise to furnish affidavit in that regard.
The order of the High court also stated,
"If in the meanwhile, he is arrested, he (should) be released on bail to the satisfaction of the Investigating Officer/Arresting Officer."
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 which 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.
Last year, 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, last year 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