Section 5 of the Cr.P.C. is also relevant in this context,
which reads thus:
“5. Saving.– Nothing contained in this Code
shall, in the absence of a specific provision to the
contrary, affect any special or local law for the time
being in force, or any special jurisdiction or power
conferred, or any special form of procedure
prescribed, by any other law for the time being in
force.”
This section makes it very clear that the Cr.P.C.
shall not affect any special form of procedure prescribed by any
other law for the time being in force. If the JJ Act was to provide for procedure in the nature of Section 438 of the Cr.P.C., that procedure would have overridden the Cr.P.C. But if no special form of procedure is prescribed in the nature of Section 438 of the Cr.P.C., then the provisions of the Cr.P.C. shall operate. Only when there is a special procedure, which is departure from the procedure laid down in the Cr.P.C. for a particular remedy, then only the special procedure would operate to the exclusion of the Cr.P.C. But in the JJ Act there is no special provision, which could operate in the field of Section 438 of the Cr.P.C. and therefore, the provisions of Section 438 of the Cr.P.C. can operate in case of child in conflict with law. {Para 29}
30 As is provided under Section 8 (2) of the JJ Act, the High
Court and the Children’s Court can exercise the same powers, which
can be exercised by the Board. These powers can be exercised in
appeal, revision or otherwise. The proceedings under Section 438 of
the Cr.P.C. are covered under these powers. Because these powers
are also available besides proceedings of appeal or revision.
Therefore, when deciding the anticipatory bail application, the High Court or the Sessions Court will have to give due importance to the considerations mentioned in the proviso to sub-Section (1) of Section 12 of the JJ Act. However, that proviso does not make the Section 438 of the Cr.P.C. inconsistent with Sections 10 and 12 of the JJ Act. The inconsistency between Cr.P.C. and these two provisions is in respect of Sections 167 and 437 of the Cr.P.C. mainly because the child will have to be produced before the Board and not before any other Court. In those cases, the special procedure provided under Sections 10 and 12 of the JJ Act will have to be followed. But Section 438 of the Cr.P.C. is enacted for a different purpose as discussed earlier and there is no inconsistency.
32 Based on this discussion, we answer the reference as
under:
“A ‘child’ and a “child in conflict with law” as defined
under the Juvenile Justice (Care and Protection of
Children) Act, 2015 can file an application under
Section 438 of the Code of Criminal Procedure, 1973.”
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
ANTICIPATORY BAIL APPLICATION NO. 277 OF 2022
Raman Prakash Mundhe Vs The State of Maharashtra,
CORAM : SARANG V. KOTWAL AND
BHARAT P. DESHPANDE, JJ.
PRONOUNCED ON : 15th July, 2022.
J U D G M E N T : ( Per Sarang V. Kotwal, J. )
. “In absence of provisions of grant of anticipatory bail
under the Juvenile Justice (Care and Protection of Children) Act,
2015, whether a juvenile in conflict with law can file such application
under Section 438 of the Code of Criminal Procedure ?”
This is the question, which we are required to
answer in this reference.
2 The Anticipatory Bail Application No.277 of 2022 was
rejected by a Single Judge Bench of this Court (Coram: Smt. Vibha
Kankanwadi, J.) on the ground that it was filed by the applicants who
were minors. They were covered by the definition of “Child in conflict
with law” as defined under the Juvenile Justice (Care and Protection
of Children) Act, 2015 (hereinafter referred to as the “JJ Act”); and
therefore, their application for anticipatory bail under Section 438 of
the Code of Criminal Procedure, 1973 (Cr.P.C.) was not
maintainable. Learned Judge referred to various judgments of
different High Courts and differed with the view with two orders of
other Single Judge Benches of this Court in the following two cases:
i) Yogesh Jagdish Joshi Vs. Sate of Maharashtra, in
Criminal Application No.2822 of 2001, decided on
18th September, 2021 (Coram: A.B. Palkar, J.) ;
and
ii) Snehal @ Abhi s/o Dinesh Shendre Vs. State of
Maharashtra, in Criminal Application (ABA) No.884
of 2018, decided on 10th December, 2018 (Coram:
M.G. Giratkar, J.).
Snehal Shendre’s order was based on Yogesh
Joshi’s order.
3 Learned Single Judge while passing the order in
Anticipatory Bail Application No.277 of 2022 relied on following
judgments in support of the view that she was taking :
a) Suhana Khatun and Ors Vs. State of West Bengal,
decided on 20th January, 2022, in CRM No.2739 of
2021, by a Division Bench of the High Court of
Calcutta ;
b) Satendra Sharma Vs. The State of M.P., decided
on 8th July 2014, in MCRC No.4183 of 2014, by a
Single Judge Bench of the High Court of Madhya
Pradesh (Gwalior Bench) ; and
c) Ankesh Gurjar Vs. State of M.P. , decided on 20th
January, 2021, in Criminal Revision No.2112 of
2020, by a Division Judge Bench of the High Court
of Madhya Pradesh (Gwalior Bench).
Learned Judge relied on many other judgments.
However, their respective views and reasoning behind those views
are similar and therefore, we have listed the prominent judgments
referred to by learned Single Judge.
4 Learned Single Judge while passing the order in
Anticipatory Bail Application No.277 of 2022 referred to following
judgments which hold that such application under Section 438 of the
Cr.P.C. was maintainable :
a) Miss Surabhi Jain (Minor) & Ors Vs. The State of
West Bengal, decided on 23rd August, 2021, in
C.R.M. 405 of 2021 with CRAN 1 of 2021, by a
Division Bench of the Calcutta High Court ; and
b) Kureshi Irfan Hasambhai Vs. State of Gujarat,
decided on 9th June, 2021, in Criminal Misc.
Application No.6978 of 2021, by a Single Judge
Bench of the High Court of Gujarat.
5 In view of her disagreement with the view expressed by
other Single Judge Benches of this Court, reference was made to a
division bench, which we are called upon to decide as mentioned
earlier. We requested Shri Rajendra S. Deshmukh, learned Senior
Counsel to appear and assist the Court as Amicus Curiae. He made
his submissions. Shri Suvidh S. Kulkarni, learned counsel appeared
for the original applicants and Shri A.V. Deshmukh, learned APP
appeared for the State of Maharashtra. Before discussing further, it
is necessary to note that Anticipatory Bail Application No.277 of 2022
is already disposed of by holding that it was not maintainable as
mentioned earlier. Therefore, it is not necessary to refer to the facts
of the case. We are discussing the issue and recording our
conclusion only on the point of reference.
SUBMISSIONS OF THE AMICUS CURIAE SHRI RAJENDRA S.
DESHMUKH, LEARNED SENIOR COUNSEL :
6 Shri Rajendra Deshmukh, learned Senior Counsel
supported the view that the application under Section 438 of the
Cr.P.C. by a child in conflict with law is not maintainable. He
basically supported the reasoning given by Smt. Justice Vibha
Kankanwadi in her order. He referred to various sections of the JJ
Act and submitted that Section 12 of the JJ Act is a complete Code
in itself and therefore, Section 438 of the Cr.P.C. was not available
for a child in conflict with law. He submitted that there was no
specific provision in the JJ Act for anticipatory bail. Section 12 of the
JJ Act was a complete Code in itself and it was not permissible to
travel beyond the said Act and particularly beyond Sections 10 and
12 of the JJ Act. He placed reliance on the judgment in Suhana
Khatun’s case and based his arguments on the reasoning
mentioned in that judgment. Though he did not support the other
view that the application was maintainable, he also presented the
other view before the Court, which is discussed in Miss Surabhi
Jain’s case.
SUBMISSIONS OF SHRI SUVIDH KULKARNI, LEARNED
COUNSEL FOR THE APPLICANTS :
7 Shri Suvidh Kulkarni, learned counsel for the applicants
invited our attention to various sections and definitions provided
under the JJ Act. He relied on the definition of “person” as defined
under Section 11 of the Indian Penal Code (IPC). He submitted that
Section 11 of the IPC defines “Person” thus – “The word “person”
includes any Company or Association or body of persons, whether
incorporated or not”. He submitted that a child as defined under the
JJ Act is not excluded from the word “Person”. He submitted that
Section 2(y) of the Cr.P.C. provides that the words and expressions
used in Cr.P.C. and not defined but defined in the Indian Penal Code
have the meanings respectively assigned to them in that Code. He
then submitted that Section 438 of the Cr.P.C. uses the word “any
person”; therefore, it would mean that the provisions of Section 438
of the Cr.P.C. are available to any person including a child as defined
under the JJ Act. He referred to various other provisions of the JJ
Act, which we shall discuss at the appropriate place. He submitted
that personal liberty should be the paramount consideration.
Nobody should be left remediless. There was no conflict between
the language of Sections 10 and 12 of the JJ Act and Section 438 of
the Cr.P.C.
SUBMISSIONS OF SHRI A. V. DESHMUKH, LEARNED APP FOR
THE STATE :
8 Learned APP submitted that though Article 14 of the
Constitution of India provides for equality before law, but in case of
the JJ Act, there is a purposeful differentiation made for protection of
children and therefore, reasonable classification was permissible.
The JJ Act flows from Sub-Article (3) of Article 15 of the Constitution
of India. It is for the benefit of children. The JJ Act treats them as
victims and not as offenders and therefore, separate special
procedure is provided. It has overriding effect over all other Acts
including the Cr.P.C. The concept of “arrest” is foreign to the JJ Act.
The language of Section 12 of the JJ Act makes a reference to
apprehension in case of bailable offences also, which is in stark
contrast to Section 438 of the Cr.P.C. which is used only in cases of
non-bailable offences. Learned APP submitted that the judgments
relied on by Smt. Justice Vibha Kankanwadi are based on sound
reasoning and therefore, it has to be held that the application of child
in conflict with law is not maintainable under Section 438 of the
REASONS FOR OUR CONCLUSION :
9 Before making reference to specific provisions, general
reasoning in various judgments taking opposite views can be
considered. The judgments, which lay down the ratio that the
application under Section 438 of the Cr.P.C. is not maintainable on
behalf of child in conflict with law, take a view that Section 12 of the
JJ Act is a complete Code in itself. There is no specific provision for
anticipatory bail under the JJ Act. The JJ Act prevails over the
Cr.P.C. The special provision under Section 12 of the JJ Act is made
for protection of children. Section 438 of the Cr.P.C. deals with
arrest of a person. This concept of “arrest” is not acceptable under
the JJ Act. The word “arrest” is not used with reference to a child in
conflict with law in the JJ Act. A proviso to Section 12 of the JJ Act
mentions that in certain cases instead of granting bail to a child in
conflict with law, he has to be kept in special homes.
10 The judgments, which have taken a view that such
application is maintainable, have basically relied on the fact that it is
a beneficial legislation and it cannot take away the right, which is
available to a child. In Yogesh Joshi’s case, reliance is placed on
the observations of the Honourable Supreme Court in the case of
Shri Gurbaksh Singh Sibbia and others Vs. State of Punjab , reported
in, (1980) 2 Supreme Court Cases 565, to hold that beneficent
construction has to be put on the provisions relating to personal
liberty. It would apply to a case of child in conflict with law a fortiori.
It would be travesty of justice to say that such applicant was not
entitled to protection and had he completed the age of 18 years, he
would be entitled to protection.
11 In Kureshi Irfan’s case, learned Single Judge of High
Court of Gujarat has discussed the concept of arrest and has held
that conjoint reading of Sections 10 and 12 places the word
“apprehension” used in Section 10 of the JJ Act at par with and
synonym of “arrest” used in Section 438 of the Cr.P.C. It was
ultimately held that there was no bar for preferring an application
under the provisions of Section 438 of the Cr.P.C. in such cases.
12 Article 14 of the Constitution of India is important, which
reads as under:
“14. Equality before law.– The State shall not deny
to any person equality before the law or the equal
protection of the laws within the territory of India.”
Article 14 of the Constitution of India refers to
equality before law and provides that the State shall not deny to any
person equality before the law or the equal protection of the laws
within the territory of India. Before proceeding further and before
making reference to any of the provisions of the JJ Act or of the
Cr.P.C., a plain reading of Article 14 of the Constitution of India would
mean that any protection, which is available to any person under the
law, is available also to a child as defined under the JJ Act. The
provisions of Section 438 of the Cr.P.C. afford the earliest protection
during or even before investigation and therefore, even a child in
conflict with law has a right to use this remedy.
13 The JJ Act is enacted under the power of Sub-Article (3)
of Article 15 of the Constitution of Indian, which gives power to the
State to make special provision for women and children. The
preamble of the JJ Act mentions that it was expedient to re-enact the
Juvenile Justice (Care and Protection of Children) Act, 2000 to make
comprehensive provisions for children alleged and found to be in
conflict with law. The statement of Objects and Reasons refers to
Article 15 of the Constitution of India. Clause (4) of the statement of
Objects and Reasons mentions the necessity to make provisions in
respect of crimes committed by children in the age group of 16-18
years, as data showed that the crimes committed by the children in
that age group had increased in certain categories of heinous
offences. Clause (4) of the statement of Objects and Reasons
mentions that the present JJ Act was enacted to provide for general
principles and procedure regarding children in conflict with law by
adopting a child-friendly approach keeping the best interest of the
child in mind. The JJ Act was amended by an Amendment Act in the
year 2021. The statement of Objects and Reasons of that Amending
Act mentions that the JJ Act has been made in pursuance of the
Constitution of India, which mandates equal rights for children.
14 Now, we turn to the relevant provisions of the JJ Act.
The JJ Act broadly makes provisions for different purposes. Chapter
IV provides for procedure in relation to children in conflict with law.
Chapter VI deals with procedure in relation to children in need of
care and protection. Chapter VII includes provisions for
rehabilitation and social re-integration. Chapter VIII is about
adoption process. Chapter IX is regarding offences against children.
For the purpose of deciding the issue before us, the procedure
mentioned in Chapter IV, formation of Juvenile Justice Board under
Chapter III and definitions and general principles given in Chapters I
and II are relevant. Apart from that, there are provisions for appeals
and revision under Sections 101 and 102 of the JJ Act and there are
Maharashtra State Juvenile Justice (Care and Protection of
Children) Rules, 2018 (hereinafter referred to as the “Rules”).
15 Following are some important provisions, which are
relevant for the issue we are deciding:–
“1. Short title, extent, commencement and application.–
(4) Notwithstanding anything contained in any other law for the
time being in force, the provisions of this Act shall apply to all
matters concerning children in need of care and protection and
children in conflict with law, including –
(i) apprehension, detention, prosecution, penalty or
imprisonment, rehabilitation and social re-integration of
children in conflict with law;
2. Definitions.– In this Act, unless the context otherwise
requires,–
(12) “child” means a person who has not completed
eighteen years of age;
(13) “child in conflict with law” means a child who is
alleged or found to have committed an offence and who has
not completed eighteen years of age on the date of
commission of such offence;
(20) “Children’s Court” means a court established under
the Commissions for Protection of Child Rights Act, 2005 (4 of
2006) or a Special Court under the Protection of Children from
Sexual Offences Act, 2012 (32 of 2012), wherever existing and
where such Courts have not been designated, the Court of
Sessions having jurisdiction to try offences under the Act;
(33) “heinous offences” includes the offences for which
the minimum punishment under the Indian Penal Code (45 of
1860) or any other law for the time being in force is
imprisonment for seven years or more;
(35) “juvenile” means a child below the age of eighteen
years;
(40) “observation home” means an observation home
established and maintained in every district or group of
districts by a State Government, either by itself, or through a
voluntary or non-governmental organisation, and is registered
as such, for the purposes specified in sub-section (1) of
section 47;
(45) “petty offences” includes the offences for which the
maximum punishment under the Indian Penal Code (45 of
1860) or any other law for the time being in force is
imprisonment up to three years;
(46) “place of safety” means any place or institution, not
being a police lockup or jail, established separately or attached
to an observation home or a special home, as the case may
be, the person in-charge of which is willing to receive and take
care of the children alleged or found to be in conflict with law,
by an order of the Board or the Children’s Court, both during
inquiry and ongoing rehabilitation after having been found
guilty for a period and purpose as specified in the order;
(54) “serious offences” includes the offences for which
the punishment under the Indian Penal Code (45 of 1860) or
any other law for the time being in force, is, –
(a) minimum imprisonment for a term more than three
years and not exceeding seven years; or
(b) maximum imprisonment for a term more than seven
years but no minimum imprisonment or minimum imprisonment
of less than seven years is provided;
(55) “special juvenile police unit” means a unit of the
police force of a district or city or, as the case may be, any
other police unit like railway police, dealing with children and
designated as such for handling children under section 107;
(61) all words and expressions used but not defined in
this Act and defined in other Acts shall have the meanings
respectively assigned to them in those Acts.”
16 There are certain principles provided under Section 3 of
the JJ Act. The Central Government, the State Governments, the
Board, the Committee or other agencies, as the case may be, while
implementing the provisions of the JJ Act are to be guided by some
fundamental principles. In all, sixteen principles are enumerated.
Some of the important principles are as follows:–
“3. General principles to be followed in
administration of Act. –
(i) Principle of presumption of innocence: Any child
shall be presumed to be an innocent of any mala fide or
criminal intent up to the age of eighteen years.
(ii) Principle of dignity and worth: All human beings
shall be treated with equal dignity and rights.
(iv) Principle of best interest: All decisions regarding
the child shall be based on the primary consideration that
they are in the best interest of the child and to help the
child to develop full potential.
(viii) Principle of non-stigmatising semantics:
Adversarial or accusatory words are not to be used in the
processes pertaining to a child.
(x) Principle of equality and non-discrimination:
There shall be no discrimination against a child on any
grounds including sex, caste, ethnicity, place of birth,
disability and equality of access, opportunity and treatment
shall be provided to every child.
(xiii) Principle of repatriation and restoration: Every
child in the juvenile justice system shall have the right to
be re-united with his family at the earliest and to be
restored to the same socio-economic and cultural status
that he was in, before coming under the purview of this
Act, unless such restoration and repatriation is not in his
best interest.
(xvi) Principles of natural justice: Basic procedural
standards of fairness shall be adhered to, including the
right to a fair hearing, rule against bias and the right to
review, by all persons or bodies, acting in a judicial
capacity under this Act.”
17 Section 4 provides for formation of Juvenile Justice
Board consisting of a Metropolitan Magistrate or a Judicial
Magistrate First Class, two social workers including one woman.
18 Sub-Section (1) of Section 8 gives exclusive power to
the Juvenile Justice Board to deal with all the proceedings under the
JJ Act, relating to children in conflict with law, in the area of
jurisdiction of such Board. This power is to the exclusion of anything
contained in any other law. Sub-Section (2) of Section 8 provides
that powers conferred on the Board by or under the JJ Act can also
be exercised by the High Court and the Children’s Court, when the
proceedings come before them under section 19 or in appeal,
revision or otherwise. Children’s Court is defined under the
Commissions for Protection of Child Rights Act, 2005. Section 25 of
the Act of 2005 reads thus:
“25. Children's Courts.– For the purpose of
providing speedy trial of offences against children or of
violation of child rights, the State Government may, with
the concurrence of the Chief Justice of the High Court, by
notification, specify at least a Court in the State or
specify, for each district, a Court of Session to be a
Children's Court to try the said offences:
Provided that nothing in this section shall apply if–
(a) a Court of Session is already specified
as a special Court; or
(b) a special Court is already constituted, for
such offences under any other law for the time being in
force.”
19 Section 14 of the JJ Act provides for inquiry by Board
regarding child in conflict with law and the procedure to be followed
depending on the category of offences. Section 15 provides for
preliminary assessment into heinous offences by Board to decide
whether there is a need for trial of the said child as an adult and then
transfer the trial of the case to the Children’s Court having
jurisdiction to try such offences.
20 Chapter III of the Rules provides for procedure in relation
to children in conflict with law. Pre-production action of police and
other agencies is provided under Rule 8 Sub-Rule (1), which reads
thus:
“8. Pre-production action of police and other agencies.–
(1) No First Information Report shall be registered
except where a heinous offence is alleged to have
been committed by the child, or when such offence is
alleged to have been committed jointly with adults. In
all other matters, the Special Juvenile Police Unit or
the Child Welfare Police Officer shall record the
information regarding the offence alleged to have been
committed by the child in the general daily diary
followed by a social background report of the child in
Form 1 and circumstances under which the child was
apprehended, wherever applicable, and forward it to
the Board before the first hearing:
Provided that, the power to apprehend shall
only be exercised with regard to heinous offences,
unless it is in the best interest of the child. For all
other cases involving petty and serious offences and
cases where apprehending the child is not necessary
in the interest of the child, the police or Special
Juvenile Police Unit or Child Welfare Police Officer
shall forward the information regarding the nature of
offence alleged to be committed by the child along
with his social background report in Form 1 to the
Board and intimate the parents or guardian of the child
as to when the child is to be produced for hearing
before the Board.”
This proviso indicates that such child should not be
arrested unless absolutely necessary.
21 Now, we turn to the most important provisions in
connection with the issue before us. Those are Sections 10 and 12
of the JJ Act, which read thus:
“10. Apprehension of child alleged to be in conflict with
law. – (1) As soon as a child alleged to be in conflict with law
is apprehended by the police, such child shall be placed
under the charge of the special juvenile police unit or the
designated child welfare police officer, who shall produce the
child before the Board without any loss of time but within a
period of twenty-four hours of apprehending the child
excluding the time necessary for the journey, from the place
where such child was apprehended:
Provided that in no case, a child alleged to be in
conflict with law shall be placed in a police lockup or lodged
in a jail.
(2) The State Government shall make rules consistent
with this Act,–
(i) to provide for persons through whom (including
registered voluntary or non-governmental organisations) any
child alleged to be in conflict with law may be produced
before the Board;
(ii) to provide for the manner in which the child
alleged to be in conflict with law may be sent to an
observation home or place of safety, as the case may be.”
“12. Bail to a person who is apparently a child alleged
to be in conflict with law. – (1) When any person, who is
apparently a child and is alleged to have committed a
bailable or non-bailable offence, is apprehended or detained
by the police or appears or brought before a Board, such
person shall, notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974) or in any other law
for the time being in force, be released on bail with or without
surety or placed under the supervision of a probation officer
or under the care of any fit person:
Provided that such person shall not be so released if
there appears reasonable grounds for believing that the
release is likely to bring that person into association with any
known criminal or expose the said person to moral, physical
or psychological danger or the person’s release would defeat
the ends of justice, and the Board shall record the reasons
for denying the bail and circumstances that led to such a
decision.
(2) When such person having been apprehended is
not released on bail under sub-section (1) by the officer-incharge
of the police station, such officer shall cause the
person to be kept only in an observation home or a place of
safety, as the case may be, in such manner as may be
prescribed until the person can be brought before a Board.
(3) When such person is not released on bail under
sub-section (1) by the Board, it shall make an order sending
him to an observation home or a place of safety, as the case
may be, for such period during the pendency of the inquiry
regarding the person, as may be specified in the order.
(4) When a child in conflict with law is unable to fulfil
the conditions of bail order within seven days of the bail
order, such child shall be produced before the Board for
modification of the conditions of bail.”
22 The Maharashtra State Amendment to Section 438 of
the Cr.P.C. mentions that when any person has reason to believe
that he may be arrested on an accusation of having committed a
non-bailable offence, he may apply to the High Court or the Court of
Session for a direction under this section that in the event of such
arrest, he shall be released on bail and the Court may after taking
into consideration the factors mentioned in that section either reject
the application or pass an interim order, which can be confirmed
after hearing the parties. The argument in support of the view that
such application is not maintainable for a child, relies on the words
“apprehension of arrest”. According to learned APP, the word
“arrest” is not used in Sections 10 and 12 or for that matter in any
other provision relating to a child under the JJ Act and therefore,
Section 438 of the Cr.P.C. was not applicable to a child in conflict
with law under the JJ Act.
In this connection, it has to be noted that Section 3
(viii) of the JJ Act provides that adversarial or accusatory words are
not to be used in the processes pertaining to a child. Keeping in
mind the spirit of this principle, the word “arrest” is not used in
connection with a child. The Cr.P.C., in fact, uses the words “arrest”
and “apprehension” interchangeably. Section 46 of the Cr.P.C.
mentions how an arrest is to be effected. Sections 58 and 59 of the
Cr.P.C. read thus:
“58. Police to report apprehensions.– Officers in
charge of police stations shall report to the District
Magistrate, or, if he so directs, to the Sub-Divisional
Magistrate, the cases of all persons arrested without
warrant, within the limits of their respective stations,
whether such persons have been admitted to bail or
otherwise.
59. Discharge of person apprehended.– No person
who has been arrested by a police officer shall be
discharged except on his own bond, or on bail, or under
the special order of a Magistrate.”
In both these sections, the titles use the words
“apprehensions” and “apprehended” whereas in the body of the
sections, the word used is “arrested”. Thus, the Cr.P.C. uses these
words synonymously. The effect of arrest or apprehension is to
curtail liberty of a person. When a child in conflict with law is
apprehended, his liberty is curtailed. Section 438 of the Cr.P.C.
affords a valuable right to a person, who is likely to be arrested or in
other words, whose liberty is likely to be curtailed. Section 438 of
the Cr.P.C. does not make any distinction between different persons
as rightly submitted by Shri Kulkarni, learned counsel for the
applicants. The definition of the word “person” mentioned in Section
11 of the IPC, is an inclusive definition. It does not exclude a child.
Section 438 of the Cr.P.C. does not exclude a child from the word
“person”. Therefore, there is no reason to deny the benefit of the
provisions of Section 438 of the Cr.P.C. to a child, who is likely to be
apprehended.
23 The importance of enacting Section 438 of the Cr.P.C. is
explained by the Honourable Supreme Court in Shri Gurbaksh Singh
Sibbia’s case. It is observed in paragraph 12 of the said judgment
that a person who has yet to lose his freedom by being arrested
asks for freedom in the event of arrest. That is the stage at which it is
imperative to protect his freedom, in so far as one may, and to give
full play to the presumption that he is innocent. In fact, the stage at
which anticipatory bail is generally sought brings about its striking
dissimilarity with the situation in which a person, who is arrested for
the commission of non-bailable offences asks for bail.
In paragraph 26, the Honourable Supreme Court
observed that the beneficent provision contained in Section 438
must be saved, not jettisoned.
In paragraph 31, it was observed that in regard to
anticipatory bail, if the proposed accusation appears to stem not
from motives of furthering the ends of justice but from some ulterior
motive, the object being to injure and humiliate the applicant by
having him arrested, a direction for the release of the applicant on
bail in the event of his arrest would generally be made.
In our opinion, these observations of the
Honourable Supreme Court must apply to the benefit of the child,
who is likely to be apprehended on some accusations. As observed
by the Honourable Supreme Court, if accusations are made with
some ulterior motive, the object being to injure and humiliate, then
there is no reason as to why such child should not be afforded an
opportunity of preferring an application under Section 438 of the
Cr.P.C. The observations of the Honourable Supreme Court
regarding presumption of innocence is also an important factor,
particularly when under Section 3(i) of the JJ Act, there is a specific
presumption that any child shall be presumed to be innocent of any
mala-fide or criminal intent up to the age of eighteen years.
24 Similar view regarding Section 438 of the Cr.P.C. is
expressed by the Honourable Supreme Court in the case of Sushila
Aggarwal and others Vs. State (NCT of Delhi) and another, reported
in, (2020) 5 Supreme Court Cases 1. It has referred to Shri
Gurbaksh Singh Sibbia’s case. In paragraph 56, it is observed that
life and liberty are the cherished attributes of every individual. The
urge for freedom is natural to each human being. Section 438 is a
procedural provision concerned with the personal liberty of each
individual, who is entitled to the benefit of the presumption of
innocence. As denial of bail amounts to deprivation of personal
liberty, the Court should lean against the imposition of unnecessary
restrictions on the scope of Section 438, especially when not
imposed by the Legislature. In paragraph 57, it is observed that the
provision for anticipatory bail is pro-liberty and was enacted as a
measure of protection against arbitrary arrests and humiliation.
There is absolutely no reason why this valuable
right should be denied to a child, which is available to every
individual.
25 As mentioned earlier, the Article 14 of the Constitution of
India as well as Sections 3(ii) and 3(x) of the JJ Act give a valuable
right to a child to be treated equally with others. A child defined
under the JJ Act enjoys equal rights with other persons. Therefore, it
would be in violation of all these principles and provisions to deny
him an opportunity to exercise his right of preferring an application
under Section 438 of the Cr.P.C.
26 The argument that the JJ Act does not make provision in
the nature of Section 438 of the Cr.P.C. and that Sections 10 and 12
of the JJ Act are complete Code in themselves; is also not
acceptable. Sections 10 and 12 operate “after” a child alleged to be
in conflict with law is apprehended. Thus, they refer to “post”
apprehension stage. They do not refer to “pre” apprehension stage.
Therefore, they cannot be in conflict with the provisions of Section
438 of the Cr.P.C. The non-obstante clause used in Section 12
operates only when there is a conflict between the provisions of the
Cr.P.C. and the provisions of Section 12 of the JJ Act. However, as
we see it, there is no conflict between the provisions of Section 438
of the Cr.P.C. and Section 10 or 12 of the JJ Act, therefore,
availability of right under Section 438 of the Cr.P.C. is not taken away
to the detriment of a child.
27 It is well settled that the non-obstante clause has
overriding effect only in case of inconsistency. In that connection,
reference can be made to a judgment of the Honourable Supreme
Court in the case of Chief Information Commissioner Vs. High Court
of Gujarat and another, reported in, (2020) 4 Supreme Court Cases
702. In that case, the Honourable Supreme Court was considering
Section 22 of the Right to Information Act, 2005, which lays down
that the provisions of the RTI Act shall have effect notwithstanding
anything inconsistent therewith contained in the Official Secretes Act,
1923, and any other law for the time being in force or in any
instrument having effect by virtue of any law other than the RTI Act.
In paragraph 34 and 35, it was observed that in case of
inconsistency of any law with the provisions of the Right to
Information Act, overriding effect has been given to the provisions of
the Right to Information Act. The non-obstante clause of the RTI Act
does not mean an implied repeal of the High Court Rules and orders
framed under Article 225 of the Constitution of India; but only has an overriding effect in case of inconsistency.
28 The non-obstante clause can be found in Section 1 Sub-
Section (4) as well as in Section 12 of the JJ Act. That would only
mean that in case of inconsistency alone, this provision under the JJ
Act would prevail. The JJ Act, as mentioned earlier, is enacted as a
beneficial legislation and therefore, if a child under the JJ Act has
any right under the general law, it cannot be taken away to the
child’s detriment by relying on these non-obstante clauses;
particularly when there is no inconsistency between the JJ Act and
the provisions of Section 438 of the Cr.P.C.
29 Section 5 of the Cr.P.C. is also relevant in this context,
which reads thus:
“5. Saving.– Nothing contained in this Code
shall, in the absence of a specific provision to the
contrary, affect any special or local law for the time
being in force, or any special jurisdiction or power
conferred, or any special form of procedure
prescribed, by any other law for the time being in
force.”
This section makes it very clear that the Cr.P.C.
shall not affect any special form of procedure prescribed by any
other law for the time being in force. If the JJ Act was to provide for
procedure in the nature of Section 438 of the Cr.P.C., that procedure
would have overridden the Cr.P.C. But if no special form of
procedure is prescribed in the nature of Section 438 of the Cr.P.C.,
then the provisions of the Cr.P.C. shall operate. Only when there is a
special procedure, which is departure from the procedure laid down
in the Cr.P.C. for a particular remedy, then only the special procedure
would operate to the exclusion of the Cr.P.C. But in the JJ Act there
is no special provision, which could operate in the field of Section
438 of the Cr.P.C. and therefore, the provisions of Section 438 of the
Cr.P.C. can operate in case of child in conflict with law.
30 As is provided under Section 8 (2) of the JJ Act, the High
Court and the Children’s Court can exercise the same powers, which
can be exercised by the Board. These powers can be exercised in
appeal, revision or otherwise. The proceedings under Section 438 of
the Cr.P.C. are covered under these powers. Because these powers
are also available besides proceedings of appeal or revision.
Therefore, when deciding the anticipatory bail application, the High
Court or the Sessions Court will have to give due importance to the
considerations mentioned in the proviso to sub-Section (1) of
Section 12 of the JJ Act. However, that proviso does not make the
Section 438 of the Cr.P.C. inconsistent with Sections 10 and 12 of
the JJ Act. The inconsistency between Cr.P.C. and these two
provisions is in respect of Sections 167 and 437 of the Cr.P.C. mainly
because the child will have to be produced before the Board and not
before any other Court. In those cases, the special procedure
provided under Sections 10 and 12 of the JJ Act will have to be
followed. But Section 438 of the Cr.P.C. is enacted for a different
purpose as discussed earlier and there is no inconsistency.
31 As mentioned earlier, if accusations are made against a
child with ill intention to cause humiliation and harassment, then the
right to prefer application under Section 438 of the Cr.P.C. should be
available to a child. Section 12 of the JJ Act provides for steps to be
taken for production before the Juvenile Justice Board after
apprehension. There is a possibility that the child can be detained
for some period. However, in cases where accusations are false or
are made with oblique motive, then it would be travesty of justice to
keep the child away from the protection of his parents and from his
usual environment and shelter. There is no reason why he should
be deprived of such protection even for a single minute. At that
stage application under Section 438 of the Cr.P.C. is the effective
remedy available to such child.
32 Based on this discussion, we answer the reference as
under:
“A ‘child’ and a “child in conflict with law” as defined
under the Juvenile Justice (Care and Protection of
Children) Act, 2015 can file an application under
Section 438 of the Code of Criminal Procedure, 1973.”
[ BHARAT P. DESHPANDE, J. ] [ SARANG V. KOTWAL, J. ]
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