Denying a minor pre-arrest bail was certainly not legislature's intention in enacting Juvenile Justice Act: P&H High Court [Read Order]

The Punjab and Haryana High Court recently allowed a pre-arrest bail plea moved by a juvenile-in-conflict-with-the-law (Krishan Kumar through his Mother v. State of Haryana).

In doing so, the Court also observed that just because the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) was silent on the aspect of pre-arrest bail, it could not be assumed that anticipatory bail could not be granted to juvenile persons in conflict with law.

In case a provision was absent in a special legislation, the general law was to be consulted, the Court said. As observed by HS Madan in his order,

Being a social welfare legislation, the JJ Act was enacted to protect children and to avoid their turning into hardened criminals, the Court said. This was done by sending them, as far as was possible to correction facilities and encouraging their rehabilitation and reintegration in society.

The Judge further reasoned, "It could certainly be not intention of the legislature that such juvenile should be first apprehended and then produced 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."

The Court also referred to the bar on pre-arrest bail in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act to opine that an express bar would have been incorporated in the JJ Act had the same been intended.

The Court further referred to a Supreme Court decision from 2014 which held similar views (Km. Hema Mishra v. State of U.P. and Others).

In that decision, a native of Uttar Pradesh was allowed anticipatory bail by the Supreme Court despite the same not being a provided for in the criminal proceedure followed in the State. It may be noted, however, that the right to seek anticipatory bail has since been provided for in the State.

The present case before the Punjab and Haryana High Court had arisen out of a skirmish in respect of a land dispute. The minor and his family, as well as the other party in the dispute, have traded charges of assault and trespass into the other's property.

In allowing the pre-arrest bail plea moved by the minor, the High Court has added to the catena of judgments on the maintainability of a pre-arrest bail application moved by a minor.

There have been conflicting views in this regard by various courts. The Rajasthan and Allahabad High Courts have allowed pleas moved by juveniles, holding that the JJ Act does not bar such a plea. Conversely, three judgments of the Madhya Pradesh High Court have rejected juvenile anticipatory bail applications.

The Courts have given varying reasons for not allowing a juvenile anticipatory bail, one being that the JJ Act is a self-contained code and provisions of the Criminal Procedure Code do not apply. Another reason cited is that juveniles under the JJ Act are not arrested, but rather that they were "apprehended". Thus, some Courts have held that the need for an bail in anticipation of 'arrest' does not arise.

In the present case, the bail plea was allowed. The Punjab and Haryana High Court has further directed the minor to present himself before investigating authorities and cooperate with investigation.

Advocate Dheeraj Narula appeared for the petitioner, while Additional Advocate-General Vikas Bhardwaj represented the State of Haryana. Advocate Aditya Sanghi acted for the complainant.

Read the Order here: