The recent judgment of the Allahabad High Court held that a child in conflict with the law possesses an equal and effective entitlement to seek anticipatory bail under Section 438 of the Criminal Procedure Code (CrPC), similar to any other individual. However, this right is subject to the limitations imposed within the provision itself.
The division bench clarified that Section 1(4) of the 2015 Act does not exclude the application of Section 438 CrPC to a child in conflict with the law, even after an FIR is registered. Juveniles or children in conflict with the law can seek anticipatory bail under Section 438 CrPC and bail under Section 12 of the 2015 Act. The Board conducts an inquiry to determine juvenile status and extend the benefits of the legislation. The required inquiry under Section 14 and preliminary assessment for heinous offenses under Section 15 of the 2015 Act can be conducted during anticipatory bail if necessary.
Brief Facts:
A request for a decision from a higher-level panel of judges was made during the hearing before a Single Judge in the case of Mohammad Zaid Vs. State of U.P. and another. This was because the current bench had a different opinion compared to a previous bench in the case of Shahaab Ali (Minor) and another vs. State of U.P. In that case, it was ruled that a petition under Section 438 of CrPC (Criminal Procedure Code) could not be accepted when filed by a child involved in a legal conflict.
In the Shahaab Ali (Minor) and another vs. State of U.P., the court held that a Juvenile cannot seek anticipatory bail because the police cannot apprehend the applicant and there are specific procedures outlined in Sections 10 and 12 of the Juvenile Justice Care and Protection Act that need to be followed. Therefore, the notion of being arrested is misguided.
Contrarily, in the Mohammad Zaid Vs. State of U.P. and another, the Single Judge Bench observed that anticipatory bail can indeed be granted to a Juvenile. This bail will remain in effect until an inquiry is conducted by the Board regarding a child involved in a legal conflict, as specified in Section 14 and 15 of the Act 2015. However, anticipatory bail cannot be granted to a child in conflict with the law until the trial concludes.
Observations of the Court:
The Court acknowledged that Section 1(4) of the Juvenile Justice Act 2015 begins with a non-obstante clause, which overrides the application of any other act. It specifically states that the provisions of the 2015 Act shall apply to all issues regarding a child in need of care and protection and a child in conflict with the law. However, the Court clarified that this provision does not restrict or prevent the Court from exercising its power to grant anticipatory bail under Section 438 of the Criminal Procedure Code (CrPC).
Furthermore, the Court rejected the argument put forward during the hearing that the absence of a provision similar to Section 438 of the Criminal Procedure Code (CrPC) in the Juvenile Justice Act 2015 implies that anticipatory bail cannot be granted to a Juvenile. The High Court clarified that Sections 10 and 12 of the Act 2015 are applicable "after" a child accused of being in conflict with the law is apprehended. These sections pertain to the "post" apprehension stage and not the "pre" apprehension stage, meaning they do not conflict with the provisions of Section 438 CrPC.
Furthermore, with respect to the decision in the case of Mohammad Zaid (supra) that the anticipatory bail order will remain in effect until the preliminary assessment is conducted under Sections 14 and 15 of the Juvenile Justice Act, the larger bench clarified that the necessary inquiry under Section 14 and preliminary assessment of serious offenses under Section 15 of the Act 2015, if required, can be conducted even while the child in conflict with the law is on anticipatory bail.
Considering this clarification, the reference was answered as mentioned above.
The decision of the Court:
The Bombay HC answered the reference and directed that the anticipatory bail applications be presented before the appropriate Bench during the week commencing July 3, 2023, for resolution.
Case Title: Mohammad Zaid vs. State of U.P. and Another along with connected matters
Coram: Hon’ble Justice Pritinker Diwarker and Samit Gopal
Case no.: CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8361 of 2020
Advocate for the Applicant: Brij Raj Singh
Advocate for the Respondent: G. A.
Read Judgment @LatestLaws.com
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