Child in conflict with law under Juvenile Justice Act cannot file anticipatory bail plea under Section 438 CrPC: Allahabad High Court

The Allahabad High Court last week observed that a juvenile in conflict with law cannot file an anticipatory bail application under Section 438 of the Code of Criminal Procedure (CrPC) [Minor 'X' Through His Guardian/Father v State]..Single-judge Justice Jyotsna Sharma disagreed with the Bombay High Court ruling in Raman and Anr. v State of Maharashtra and relied upon a judgment of Allahabad High Court in Shahaab Ali and Another v. State of UP to hold that the Juvenile Justice Act (JJ Act) deals with all aspects relating to child in conflict with law and the provisions of CrPC will not apply in such cases."I am of the firm view that the Juvenile Justice Act is a comprehensive legislation containing all provisions with regard to children in conflict with law and that the provisions of Section 438 Cr.P.C. have no application being extraneous and incompatible with the scheme as well as aim and objective sought to be achieved by the Act," the Court said.A holistic machinery of law has been put in place by the JJ Act to deal with the child in conflict with law, the Court said."The Act has a scheme which deals with such juveniles at preproduction and post-production stages. Some of the points have already been dealt with and some more points can be added. The factors which ought to be taken into consideration while dealing with the release of a child on bail, expressly include the likelihood of his coming into association with known criminals, likelihood of his exposure to physical, moral or psychological danger or otherwise defeating the ends of justice. Above factors are enough to deduce that the provisions of Section 12 have been enacted keeping in mind the best interest of a child. It may be noted that there may be circumstances where keeping a child in a child care institution may be the best option to serve the best interest of a child, a principle which finds place in the opening of this Act under Section 3," the Court noted.In case, the provisions of Section 438 CrPC are allowed to hold field in the matters of juvenile, the aim and object of the JJ Act shall be defeated, the Court emphasised."The interpretation of law cannot be devised in a way, so as to put a hurdle in the broader and solemn aim which is sought to be achieved by this enactment," the order said..The Court was hearing an application filed on behalf of a minor through his guardian/father seeking anticipatory bail in a case registered against him for attempt to murder along with other sections of Indian Penal Code.The counsel for applicant argued that that a minor cannot be deprived of protection available under Section 438 CrPC just because he is not an adult. The same was opposed by the State..The single-judge noted that the statement of objects and reasons under JJ Act clearly indicated that the legislature intended to provide exhaustive statutory provisions to deal with children involved in offences with certain far reaching object in mind while carefully treading a path illuminated by the principle of best interest of the child.The unmistakable conclusion which can be drawn is that the JJ Act seeks to deal exhaustively with all matters concerning child offenders including their apprehension, detention and prosecution, the judge added while referring to Section 1(4) of the Act..The Court further stressed that CrPC provisions are applicable to special laws if the law is silent on a particular issue. "Section 4(2) of the CrPC says that all the offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of CrPC, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences," the Court noted. .The Court further noted that provisions of JJ Act consciously, conspicuously and deliberately avoided the use of word "arrest" and instead used the word "apprehension" in relation to a child in conflict with law. The Court added that the replacement of word in JJ Act was not without reason."The apprehension of arrest which is a necessary pre-requisite for applicability of Section 438 CrPC is altogether out of place in cases of juveniles. In my view the word "arrest" is not replaceable by the word "apprehension" in the sense used under the provisions of the Juvenile Justice Act.".The Court also observed that under Section 8(1) of JJ Act, the Juvenile Justice Board has been given exclusive power to deal with all the proceedings relating to children in conflict with law and no window has been left open for meddling with the affairs of juvenile offenders in terms of provisions of section."The Juvenile Justice Act has no where said that Section 438 Cr.P.C. shall have application to the children in conflict with law. Though Section 8(2) of the Juvenile Justice Act gives similar powers to the High Court or the Children Court but only when matter is brought before it in appeal or revision or otherwise. There is no express provision empowering Children Court or Sessions Court or High Court to assume jurisdiction on itself for grant of anticipatory bail by virtue of provisions of Section 8(2) of the Juvenile Justice Act," the Court added..The Court thus noted that a distinct and special procedure with regard to a child offender has been put in place by the JJ Act so as to comprehensively deal with all the aspects which may arise where a criminal case, whether initiated by filing of FIR or not begins. "There are many indicators which rule out forming of a view or an opinion that provisions of anticipatory bail shall apply to protect the liberty of a juvenile," the Court added while rejecting the bail application.The applicant was represented by advocates Rakesh Pathak and Shashank Shekhar Tiwari while advocate Prem Shankar Pandey represented State..[Read Order]