The Gujarat High Court has observed that there is no express bar of application of anticipatory bail under sec. 438 CrPC to the children in conflict with law as covered by the Juvenile Justice Act, 2015.
A Single Judge bench comprising of Justice AY Kogje observed thus:
"…this Court is of the opinion that there is no expressed bar of application of Section 438 of the Code to the children in conflict with law covered by the Act, 2015 and in absence of expressed bar of application of Section 438 of the Code, there is no reason to imply such bar more particularly in the facts of the present case where the applicant who is juvenile is not even named as an accused and has raised a apprehension for being impleaded on extraneous consideration."
Furthermore, the Court also said:
"The conjoint reading of Sections 10 and 12, in the opinion of the Court, places the word "apprehension" used in Section 10 of the Act, 2015 at par with and synonyms to "arrest" used in Section 438 of the Code. Therefore, though methods different Acts are provided for to deal with juvenile/child in conflict with law, still the methodology provided for apprehending the child in conflict with law curtails the liberty of such child and is subjected to various stages as provided particularly in Sections 10 and 12 of the Act, 2015. The Court of is the opinion that the languages of the relevant Sections of the Act, 2015 do not carve out a complete bar or the right of an individual under Section 438 of the Code and by implication takes out child in conflict with law from the purview of Section 438 of the Code."
The development came in an application for anticipatory bail filed under sec. 438 CrPC by a 17 year old accused, child in conflict with law apprehending that he may be falsely involved in the offence on account of previous enmity with one of the accused persons.
The issue before the Court was whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure (for short "the Code") can be maintained by child in conflict with law more particularly considering the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015?
"The personal liberty of an individual is at the highest pedestal and the personal liberty of a juvenile cannot be considered to be anything lower. Right of an individual to a legal recourse is also fundamental for an individual and has to be so if not with more vigor for a juvenile." The Court observed.
According to the State, it was stated that the language of Section 438 of the Code which is required to be read with Sections 10 and 12 of the Act, 2015. Furthermore, it was argued that for maintaining application under Section 438 of the Code there has to be an apprehension of arrest of a person, whereas provisions of Section 10 of the Act, 2015 provides for in no case, a child alleged to be in conflict with law shall be placed in a police lockup or lodged in jail and as in case of a child in conflict with law there is a complete bar for placing the child in police lockup or to be lodged in jail.
Analyzing the aforesaid provisions, the Court observed that the conjoint reading of Sections 10 and 12, in the opinion of the Court, places the word "apprehension" used in Section 10 of the Act, 2015 at par with and synonyms to "arrest" used in Section 438 of the Code.
"Section 1(4) of the Act, 2015 though begin with non-obstante clause provides for application of Juvenile Justice Act to all matters concerning children in conflict with law. However, thereby, the object of the Act is to provide something more that is already provided for in the ordinary law in the present case provided under Section 438 of the Code. The Act which is separately provided for the children is to Act in the benefit of the children and cannot be understood to curtail the rights which are otherwise ordinarily available to the individuals." The Court observed.
Furthermore, the Court was also of the view that for any child in conflict with law, necessary procedure to be adopted as prescribed under Section 12 of the Act, 2015 and therefore, even where the application under Section 438 of the Code is decided in any which way, the protection of Section 12 of the Act, 2015 will always be available.
In view of the aforesaid submissions, the Court allowed the application of anticipatory bail and released the applicant in conformity with sec. 12 of the JJ Act.
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