Allahabad High Court
Shekhar Saini (Minor) vs State Of U.P. And 3 Others on 10 February, 2023
Bench: Jyotsna Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 18.01.2023
Delivered on 10.02.2023
Court No. - 85
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11002 of 2022
Applicant :- Minor 'X' Through His Guardian/Father, District Moradabad
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Nitin Mukesh
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Jyotsna Sharma,J.
1. It appears that name of the applicant-juvenile has been disclosed in the memo of revision. This fault from the side of applicant escaped detection by the Registry. The concerned section of Registry is directed to remove the name of the applicant-minor from the title of the revision as fed and shown in the data on official website and represent him as "Minor 'X' Through His Guardian/Father, District Moradabad ."
2. Heard Sri Nitin Mukesh, learned counsel for the applicant and Sri O.P. Mishra, learned AGA for the State on the question of maintainability of this anticipatory bail application on behalf of the minor.
3. The present application has been filed on behalf of minor ''X' through his guardian/father seeking anticipatory bail in F.I.R./Case Crime No. 0201 of 2022, under Sections 452, 354, 323, 324, 504, 506 IPC and Sections 7/8 of POCSO Act, Police Station Katghar, District Moradabad.
4. It is contended on behalf of the applicant (who admittedly is a minor) that a minor cannot be deprived of protection available under Section 438 Cr.P.C. just because he is not an adult. The contention is ardently opposed by the State.
5. The question of maintainability of the anticipatory bail application where the applicant/offender is admittedly a juvenile, was raised before this Court in Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C. No. 11542 of 2022 (Minor 'X' Through His Guardian/Father District Prayagraj vs. State of U.P. and Another) delivered on 09.02.2023.
6. In the above noted case decided by the High Court of Allahabad, the Court went through the judgment of High Court of Bombay, Aurangabad Bench given in Raman and Others vs. State of Maharashtra and Another; 2022 SCC OnLine Bom 1470 presented in support of the assertions that in such cases too the anticipatory bail application shall be maintainable and also through the judgment of the coordinate Bench of Allahabad High Court in Shahaab Ali and Another vs. State of U.P.; 2020 (2) ADJ 130 cited in support of the opposite view.
In Para-9 of the judgment, a question was framed as below:-
"9. Now a question arises whether the applicability of Section 438 Cr.P.C. is ruled out by implication or otherwise in cases where the Juvenile Justice Act, 2015 is applicable?"
In Para-17 of the judgment following has been held as below:-
17. In my firm view, a distinct and special procedure with regard to a child offender has been put in place in the Juvenile Justice Act, 2015 so as to comprehensively deal with all the aspects which may arise where a criminal case, whether initiated by filing of FIR or not begins. There are many indicators which rule out forming of a view or an opinion that provisions of anticipatory bail shall apply to protect the liberty of a juvenile. The Act has a scheme which deals with such juveniles at pre-production and post-production stages. Some of the points have already been dealt with and some more points can be added. The factors which ought to be taken into consideration while dealing with the release of a child on bail, expressly include the likelihood of his coming into association with known criminals, likelihood of his exposure to physical, moral or psychological danger or otherwise defeating the ends of justice. Above factors are enough to deduce that the provisions of Section 12 have been enacted keeping in mind the best interest of a child. It may be noted that there may be circumstances where keeping a child in a child care institution may be the best option to serve the best interest of a child, a principle which finds place in the opening of this Act under Section 3. Chapter II of Section 3 enumerates 16 principles which are necessarily to be kept in mind by the Central Government or the State Government and other agencies, as the case may be including the Board while implementing the provisions of this Act. These principles, very importantly include the principle of safety which says that all measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter. In my view, a holistic machinery of law has been put in place to deal with the child in conflict with law. By implication, such gaps, if any, need to be excluded where a child can be dealt with under regular law of procedure. In case, the provisions of Section 438 Cr.P.C. are allowed to hold field in the matters of juvenile, the aim and object of the Act shall be defeated. The interpretation of law cannot be devised in a way, so as to put a hurdle in the broader and solemn aim which is sought to be achieved by this enactment.
Disagreeing with the view taken by the High Court of Bombay, Aurangabad Bench, given in Raman and Others vs. State of Maharashtra and Another (supra), the Allahabad High Court held that the Juvenile Justice Act is a comprehensive legislation containing all provisions with regard to children in conflict with law and that the provisions of Section 438 Cr.P.C. have no application interalia for the reasons that the provisions are extraneous and incompatible with the scheme as well as aim and objective sought to be achieved by the Act.
7. Hence this anticipatory bail application is dismissed as not maintainable.
Order Date :- 10.2.2023
#Vikram/-
Note- Copy of the order be sent to concerned Section of the Registry for immediate compliance of direction given in Para-1 of the order.
