A Bombay High Court Bench, Aurangabad, has ruled that a juvenile who is in conflict with the law may file an anticipatory bail request. The court had to declare this Friday because there are no provisions that govern anticipatory bail under Juvenile Justice (Care and Protection of Children) Act. [JJ Act].
The Justices SV Kotwal & BP Deshpande stated that denying a minor in conflict with law the chance to exercise the right of preferring an anticipation bail application under Section438 of the Criminal Procedure Code(CrPC), (CrPC), would violate Article 14 of India.
The bench stated, “Article 14 of India’s Constitution as well Sections 3(iii and 3(x), of the JJ Act grant a child a valuable right of equal treatment with others.” The JJ Act defines a child as having equal rights to other people. 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 CrPC.”
The case involved two Parbhani juveniles aged 14 and 16. They were in conflict with the law. They had applied for anticipatory Bail. Justice Vibha Kankanwadi (single bench judge) disagreed with the views of other single judges. Justice Kankanwadi denied anticipatory Bail to the siblings.
For Anticipatory Bail for Juveniles:
Rajendra S Deshmukh, Senior Advocate had been requested by the bench to act as amicus custodian. He supported Justice Kankanwadi’s view. He referenced various sections of JJ Act, and said that sections 10-12 of the JJ Act were a Code in themselves. Therefore, Section 438 (CrPC) was not available to a child in conflict of law. He said that the JJ Act did not contain any provision for anticipatory bail.
AV Deshmukh (assistant public prosecutor) also objected to any relief for minors. He claimed that while Article 14 of India’s Constitution guarantees equality before law in India, the JJ Act provides a purposeful differentiation for the protection of children. Accordingly, reasonable classification is permissible to their benefit. The JJ Act does not contain the word “arrest”, so there is no question about anticipatory bail. This provision refers to the grant of bail to an arrest suspect.
For juveniles who are eligible for anticipatory bail:
Advocate Suvidh Kalkarni represented the petitioners and called the court’s attention the Indian Penal Code’s definition of “person” and claimed that a “child”, as defined in the JJ Act, would not be exempted from the word “person”.
Kulkarni emphasized that Section 438 of the CrPC uses the word “any person” and therefore, it would mean that the provisions of Section 438 of the CrPC are available to any person including a child as defined under the JJ Act.
The bench noted that the CrPC uses both the words arrest or apprehension interchangeably. “It must be noted that Section 3(viii) of JJ Act prohibits adversarial or accusatory language from being used in proceedings pertaining to children. Keeping in mind the spirit of this principle, the word “arrest” is not used in connection with a child. The CrPC, in fact, uses the words “arrest” and “apprehension” interchangeably,” said the bench.
Referring to Deshkmukh’s assertion that Sections 10, 12 and 13 of the JJ Act were complete codes, the Court stated that they refer to post-apprehension and therefore could not be compared to Section 438 of CrPC.
Kulkarni’s assertion that “person” as defined by the IPC also includes children was accepted by the court.
“The definition of the word “person” mentioned in Section 11 of the IPC, is an inclusive definition. It does include a child. Section 438 of Cr.P.C. does not exclude a child from the word “person”. The Cr.P.C. Section 438 does not prohibit a child from the word “person”. The bench stated that the child is likely to be arrested.
Only Section 438 of CrPC can be overruled if Section 438 is provided for in the JJ Act, which the Court highlighted.
It was determined that Section 438 could be used in cases of children who are in conflict with the law because there is no provision in JJ Act.
It was also stated that in the event of false accusations or oblique motives, it would be a disgrace of justice to keep the child out of the protection of the parents and their usual environment.
“There is no reason why such protection should be withheld even for a minute.” “An application under Section 438 CrPC at that stage is the only effective remedy available for such child,” the Court stated.