Suhana Khatun & Others vs State Of West Bengal
2022 Latest Caselaw 141 Cal

                  IN THE HIGH COURT AT CALCUTTA

            CRIMINAL MISCELLANEOUS JURISDICTION.

                          CRM No. 2739 of 2021

 In Re: An Application for anticipatory bail under section 438 of the Code
of Criminal Procedure filed in connection with Raghunathganj Police
Station case no. 12 of 2021 dated 07.01.2021 relating to offences under
Section 341/325/326/307/302/34 of the Indian Penal Code.

In the matter of :        Suhana Khatun & Others

                                    versus

                          State of West Bengal

Present:

The Hon'ble Justice Arijit Banerjee

And

The Hon'ble Justice Bivas Pattanayak


For the Petitioners :                   Mr. Ayan Bhattacharyya, Adv.
                                        Mr. B. Banerjee, Adv.

For the State :                         Mr. Swapan Banerjee, Adv.
                                        Mr. Suman De, Adv.


Heard on :                              27.09.2021
Judgment on:                            20.01.2022




Bivas Pattanayak, J. :-

1.

This is an application for anticipatory bail under Section 438 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) at

the instance of four minor/juvenile persons filed in connection with

Raghunathganj Police Station case no. 12 of 2021 dated 07.01.2021

relating to offences under Section 341/325/326/307/302/34 of the

Indian Penal Code.

2. Precisely the allegations levelled against the petitioners and the other

FIR named accused persons in the instant case is that in relation to a civil

dispute the accused persons on 06.01.2021 at about 11PM attacked and

assaulted the father-in-law of the complainant and when the family

members of the complainant tried to restrain them they were also

assaulted by the accused persons. In consequence of such assault several

persons sustained injuries and were treated in the hospital. Out of several

injured, the mother-in-law of the complainant namely Patani Bibi, being

one of the injured, was declared dead by the attending doctors. On the

basis of the aforesaid allegations FIR was registered against the petitioners

and others and the case was taken into investigation.

3. The principal question pertaining to the instant petition is whether an

application for anticipatory bail under Section 438 of the Code at the

behest of a juvenile/minor is maintainable. Therefore, before delving into

any other points involved in the case, the question of maintainability of the

present application for anticipatory bail preferred at the instance of

juveniles/minors under Section 438 of the Code is to be decided.

4. It was submitted by the learned counsel for the petitioners that from the

provisions of law embodied under the Juvenile Justice Act of 2015, no

mechanism is in place to deal with child/juvenile till the time such child is

apprehended or is brought before the Board. Section 12 of the Act of 2015,

takes into its sweep the modalities to be followed when a child/juvenile is

placed before the Board whereas Section 10 of the Act of 2015, provides

the mechanism of apprehension of a child/juvenile. Further the non-

obstante clause as occurred in Section 12 of the Act of 2015, carves out an

exception from the general provisions of bail and bonds as enumerated

under the provisions of Criminal Procedure Code. The said non-obstante

clause however does not abrogate the provision of anticipatory bail/pre-

arrest bail as provided under Section 438 of the Code He further stressed

on this aspect that though Section 4(2) of the Code provides that the

special provisions will prevail upon the provisions of the Code for grant of

bail but that cannot per se exclude the rest of the provisions of the Code.

Further, the provisions under Section 438 of the Code for anticipatory bail

create a different niche and therefore the same cannot be construed to be

excluded by way of necessary implication and a person has a right not to

be hounded by the police and the mechanism provided under the Act of

2015, which is silent about the stage anterior to apprehension/production

of a child/juvenile cannot be interpreted to exclude the provision of

Section 438 of the Code. Moreover, the provisions of Section 3 of Act of

2015, if interpreted can safely be concluded that the structure of Act of

2015 does not exclude the provisions of anticipatory bail/pre-arrest bail

under Section 438 of Criminal Procedure Code. Moreover, he drew our

attention that the Act of 2015 is a beneficial legislation and on necessary

implication cannot be construed to exclude another beneficial provision

which is a component of Article 21 of the Constitution of India.

It was further submitted on behalf of the petitioners that the legislatures in

some of the Special enactments namely Scheduled Castes & Scheduled

Tribes (Prevention of Atrocities) Act, 1989 have expressly excluded the

provisions of Section 438 of the Code but there is no such legislative

prescription excluding such provisions from Act of 2015 expressly.

Therefore, the exclusion of the provisions of section 438 of the Code cannot

be implanted by way of judicial interpretation.

Furthermore, it was submitted on behalf of the petitioners that the

legislature might have used the term "apprehension" in place and instead

of "arrest" in Act of 2015 having different connotations but the

consequences are the same.

Further learned Advocate for the petitioners submitted that the purpose of

the Act of 2015 is to protect a juvenile/child in conflict with law and

therefore when two views are possible, the one that would favour the child

in conflict with law should be adopted and he placed his reliance on the

decision of Hon'ble Supreme Court of India in Shilpa Mittal versus State

(NCT of Delhi) reported in (2020) 2SCC 787, para 31/35. Moreover, law

places the juvenile in conflict with law on a more advantageous pedestal

than an adult accused and therefore by no interpretation the child in

conflict with law can be placed in a disadvantageous position.

In the light of his above submissions learned counsel for the petitioners

prayed that prayer for anticipatory bail of the petitioners (minors) is

maintainable and should be allowed in the interest of justice.

Learned Advocate for the petitioners has placed his reliance on the

following orders/judgements of different High courts relating to

maintainability of the application for anticipatory bail on behalf of minors.

(i) Saud Sk (minor) represented by his father Morful Sk.CRM no. 5419

of 2021 of Hon'ble High Court, Calcutta.

(ii)Miss A versus State of M.P reported in ILR (2019) MP 662 of Hon'ble

Madhya Pradesh High Court.

(iii)Birbal Munda & Ors versus The State of Jharkhand reported in

Manu/JH/1400/2019 of Hon'ble Jharkhand High Court.

(iv)Sudhir Sharma versus State of Chhattisgarh reported in 2017 SCC

Online Chh 1554 of Hon'ble Chhattisgarh High Court.

(v) Mr X (Prashob), S/o Baby V.M versus State of Kerala reported in

2018 (3) RCR (Cri) 327 of Hon'ble Kerala High Court.

(vi) Krishan Kumar Minor thrugh his mother versus State of Haryana

reported in 2020 (3) RCR (Cri) 180 of Hon'ble Punjab & Haryana High

Court.

(vii) Kureshi Irfan Hasambhai thro Kureshi Kalubhai Hasambhai

versus State of Gujarat reported in 2021 (O) AIJEK-HC-243111 of

Hon'ble Gujarat High Court.

Learned Advocate for the petitioners in his usual fairness has also placed

before us the following judgments of different High courts negating the

maintainability of the application for anticipatory bail on behalf of minors.

(i)CRM 10177 of 2016, Jiban Mondal, In Re reported in 2017 SCC

Online Cal 1919 of Hon'ble High Court, at Calcutta.

(ii) Krishna Garai & Ors versus The State of West Bengal reported in

(2016) 2 C Cr LR (Cal) 561 of Hon'ble High Court, at Calcutta.

(iii) CRM 2206 of 2015, Taimina Bibi reported in 2015 SCC Online Cal

4299 of Hon'ble High Court, at Calcutta.

(iv)Shahaab Ali & Anr versus State of Uttar Pradesh reported in 2020

CriLJ 4479 of Hon'ble Allahabad High Court.

(v) K.Vignesh versus State reported in 2017 SCC Online Mad 28442 of

Hon'ble Madras High Court.

(vi) Kamlesh Gurjar versus State of M.P reported in 2020 (1) RCR (Cri)

434 of Hon'ble Madhya Pradesh High Court.

5. In reply to the aforesaid contention advanced on behalf of the

petitioners, learned advocate appearing on behalf of the State in opposition

submitted that an application under Section 438 of the Code at the behest

of a minor is not maintainable since the apprehension of arrest is

misplaced. Further Section 10 and 12 of the Act of 2015, puts in place a

detailed procedure to deal with investigation and trial in respect of

cognizable offence that may be committed by a minor. He further drew our

attention to the fact that in terms of Section 10 of the Act of 2015, a child

cannot be arrested and he can at best be apprehended and placed in

charge of Special Juvenile Police Unit (SJPU) or Designated Child Welfare

Police Officer (CWPO) for production before the concerned Juvenile Justice

Board within 24 hours of such apprehension and therefore the jurisdiction

of the court under Section 438 of the Code is not liable to be invoked. Both

the aforesaid provisions neither entail nor envisage the detention or

placement of the child in jail or police lock up.

Moreover, before the production of the child in conflict with law, he is to be

placed in an observation home and the provisions do not empower the

authorities to question or interrogate. Furthermore, it was submitted that

the provisions of pre-arrest bail as made in Section 438 of the Code will

impede, hinder and may even disrupt the mandatory statutory procedure

laid down in the Act of 2015 and the Model Rules.

On such submissions learned counsel for the State pressed that the

application for anticipatory bail on behalf of a minor is not maintainable.

6. We have heard the learned advocates for the petitioners as well as the

State and also perused the materials in the case-diary.

7. The principal question which is raised before us is whether a petition

under Section 438 of the Code for anticipatory bail at the behest of a child

in conflict with law would be maintainable.

8. Section 438 of the Code provides that where any person has reason to

believe that he may be arrested on accusation of having committed a non-

bailable offence, he may apply to the High Court or the Court of Session

for a direction under the section that in the event of such arrest he shall

be released on bail and the court may entertain such prayer after taking

into consideration the factors noted therein. Therefore it is apparent from

the aforesaid provisions that in order to invoke section 438 of the Code the

foremost qualification is that the person making such application must

have reason to believe that he may be arrested on accusation of having

committed a non-bailable offence. At this juncture we may try to

understand the meaning of the word "arrest" as appearing in the Code.The

word"arrest" has not been defined in the Code. However, it's meaning can

be ascertained from Section 46, Section 57 and Section 167 of the Code

which are reproduced hereunder:-

" Section 46 - Arrest how made(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action .....

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade arrest, such police officer or other person may use all means necessary to effect the arrest......"

"Section 57- Person arrested not be detained more than 24 hours- No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary in the journey from the place of arrest to the Magistrate's court."

"Section 167-Procedure when investigation cannot be completed in twenty four hours.-(1)Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-

four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to

the case, and shall at the same time forward the accused to such Magistrate.

(2)The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

(c)no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

The corollary that proceeds from the aforesaid provisions of the Code

clearly indicates "arrest" to be confinement of a person by necessary

means, detention in custody (police custody or jail custody). Therefore, the

connotation of the words "any person has reason to believe that he may be

arrested" appearing in Section 438 of the Code signify likelihood of a

person being confined or put on detention in police custody or jail custody.

9. Now let us find out as to whether a minor/juvenile has any likelihood of

being arrested by the law enforcing agencies under the purview of Juvenile

Justice Act applicable to them.

In this regard we may reproduce Section 10 of the Juvenile Justice (Care

and Protection of Children) Act, 2015 which reads as hereunder:

"Section 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 lock-up or lodged in jail........."

From the proviso to the aforesaid section of the Act, it is manifestly clear

that under no circumstances a juvenile or a child in conflict with law can

be put behind bars either in police lock-up or in jail. It is further noted

that confinement of juvenile in conflict with law or detention in police

custody or jail custody of the child in conflict with law is foreign to the

Juvenile Justice Act.

We also find a significant amendment to section 12 of the Act of 2000

which is incorporated in Act of 2015. For the sake of convenience of

discussion the previous and the present provisions of section of 12 of the

Juvenile Justice Act is enumerated hereunder.

Section 12 of the Act of 2000-Bail of Juvenile. reads as follows:-" (1) When any person accused of a bailable or non- bailable offence and apparently a juvenile, is arrested or detained or appears or is 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 institution or fit person ) but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice......"

Section 12 of the Act of 2015 reads as hereunder- 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 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 that his release would defeat the ends of justice and the Board shall record the reasons for denying the bail and jurisdiction that led to such a decision......."

Upon going through the aforementioned provisions embodied previously

under section 12 of 2000 Act and the subsequent amendment in the said

provisions in the 2015 Act, we find that the word "arrested" has been

consciously done away with in the subsequent Act of 2015 by the

legislature and replaced with the word "apprehended". Thus, such

purposive omission of the word "arrest" clearly shows the intention of the

legislature not to apply any coercive measures as far as apprehension of

any child in conflict with law is concerned. It has been argued on behalf of

the petitioners that the legislature might have used the term

"apprehension" in place and instead of "arrest" in Act of 2015 having

different connotations but the consequences are the same. We most

humbly cannot accept the aforesaid contention made by learned advocate

for the petitioners in view of the fact that proviso to Section 10 of the Act

says that in no case a child to be alleged in conflict with law shall be

placed in police lock-up or lodged in jail. Accordingly, from section 10 and

12 of the Act, 2015 it is quite apparent that the legislature never intended

to put a child in conflict with law behind bars and as such laid down

varied procedures to be followed in case of apprehension of a child in

conflict with law such as (i) 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; (ii) The Board 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, release such child on bail with or without surety or

place under the supervision of a probation officer or under the care of any

fit person, provided that such child shall not be released if there appears

reasonable grounds for believing that the release is likely to bring the child

into association with any known criminal or expose the child to moral,

physical or psychological danger or that his release would defeat the ends

of justice and the Board shall record the reasons for denying the bail and

jurisdiction that led to such a decision. Therefore it manifests a definite

purpose behind such legislation while making a distinct deviation from the

procedure of the Code relating to arrest of a person. Accordingly using the

word "apprehension" in place and instead of "arrest" by legislature does

not lead to the same consequence. Rather we observe that those words

though have similar meaning literally yet its application in the enactment

should be construed differently for the reason that the legislature never

had the intention of confinement or arrest and detention of the child in

conflict with law in any police lock-up or in jail.

10. Further in exercise of powers conferred by section 110 of the Act, 2015

the Union Government has also framed Model Rules namely Juvenile

Justice (Care and Protection of Children) Model Rules, 2016. As per the

Proviso appended to Rule 8(1) of the Model Rules, no child is to be

apprehended except in case of commission of heinous offence or where it is

otherwise in his best interest. In all other 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 I 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. Rule 8(3) reiterates the statutory

restraint against transmitting the child to jail, placement of handcuffs,

chain or otherwise fetter a child and shall not use any coercion or force on

the child and on being apprehended the police officer may send the child

to a welfare home till his production before Board. Moreover it mandates

that the child be apprised of the charges levelled against him and also be

provided with a copy of the FIR if lodged, provide appropriate medical

assistance, assistance of interpreter or special educator or any other

assistance which the child may require. Additionally, it requires that the

child shall not be compelled to confess his guilt and shall be interviewed at

Special Juvenile Police Unit or at child friendly premises and it requires

the presence of the parents or guardian of the child during such interview

and also obliges the authorities to inform the District Legal Services

Authority to enable it to provide legal aid to the child. The Rule further

prescribes that the juvenile shall not be compelled to sign any statement.

Upon completion of the above formalities the child is to be produced before

the concerned Board not later than 24-hours from apprehension. Upon

reading the aforesaid Rule and various obligations and safeguards put in

place it is manifest that apprehension of the child under the Act, 2015 is

not akin to arrest or incarceration as otherwise effected under the Criminal

Procedure Code. Thus it is quite apparent that by virtue of the 2015 Act, a

distinct, comprehensive and special procedure has been pioneered and

introduced relating to apprehension of a child in conflict with law.

The primary issue on presentation of the child before the Board is

consideration of Bail. As per provisions of section 12 of the 2015 Act, the

Board is required to release the child on bail unless it forms the opinion

that the child is likely to fall into the association of known criminals, the

release is likely to have a negative physical, moral or psychological impact

or otherwise defeat the ends of Justice. When the Board decides to refuse

bail, the child is liable to be placed in an observation home till the

completion of enquiry initiated under the 2015 Act. Rule 9 of the Model

Rules also contains similar provisions as is appearing in section 12 of the

2015 Act.

Accordingly it is found that the 2015 Act and the Model Rules lay down a

special procedure in order to deal with the apprehension of a child in

conflict with law and the procedure so laid down constitutes a significant

departure from the power and procedure for arrest and detention as

contained in the Criminal Procedure Code. Upon enactment of the 2015

Act and the Model Rules the legislature intended to put in place a self-

contained, comprehensive and inclusive procedure to deal with the

apprehension and enquiry of a child in conflict with law.

11. Further Section 1(4) of the Juvenile Justice Act (Juvenile Justice Care

and Protection of Children) Act, 2015, provides as hereunder:-

"Notwithstanding anything contained in any other law for the time being in force, the provisions of the 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 reintegration of children in conflict with law.

(ii)procedures and decisions or orders relating to rehabilitation, adoption, reintegration and restoration of children for need of care and protection.

In view of such provisions of the Act of 2015, the apprehension and/or

detention of the child in conflict with law has to be made as per the

provisions of the Act namely Section 10 and Section 12 and other

provisions. The aforesaid provision also clearly puts in place the overriding

effect of the special enactment of 2015 as far as apprehension, detention,

prosecution, penalty or imprisonment, rehabilitation and social integration

of children in conflict with law are concerned. The essential intent

underlying section 1(4) underscores that the provisions of the 2015 Act

relating to apprehension, detention, prosecution, penalty or imprisonment

would apply in respect of children in conflict with law notwithstanding

anything contained in any other law for the time being in force.

In order to give effect to certain objects the Act of 2000,was repealed and

replaced by the 2015 enactment which came into force on 31 December,

2015 and the statement of objects and reasons of the amending Act is

accordingly reproduced hereunder:-

"Statement of objects and reasons:-Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Articles 39(e) and (f), 45 and 47 further makes the State responsible for ensuring that all needs of the children are met and their basic human rights are protected.

2.The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate measures in case of a child alleged as, or accused of, violating any penal law, including (a) treatment of the child in a manner consistent with the promotion of the child's sense of dignity and worth (b) reinforcing the child's respect for the human rights and fundamental freedoms of others (c) taking into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

3. The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000 to provide for the protection of children. The Act was amended twice in 2006 and 2011 to address gaps in its implementation and make the law more child-friendly.

During the course of the implementation of the Act, several issues arose such as increasing incidents of abuse of children in institutions, inadequate facilities, quality of care and

rehabilitation measures in Homes, high pendency of cases, delays in adoption due to faulty and incomplete processing, lack of clarity regarding roles, responsibilities and accountability of institutions and, inadequate provisions to counter offences against children such as corporal punishment, sale of children for adoption purposes, etc. have highlighted the need to review the existing law.

4. Further, increasing cases of crimes committed by children in the age group of 16-18 years in recent years makes it evident that the current provisions and system under the Juvenile Justice (Care and Protection of Children) Act, 2000, are ill equipped to tackle child offenders in this age group. The data collected by the National Crime Records Bureau establishes that crimes by children in the age group of 16-18 years have increased especially in certain categories of heinous offences.

5.Numerous changes are required in the existing Juvenile Justice (Care and Protection of Children) Act, 2000 to address the above mentioned issues and therefore, it is proposed to repeal existing Juvenile Justice (Care and Protection of Children) Act, 2000 and re-enact a comprehensive legislation inter alia to provide for general principles of care and protection of children, procedures in case of children in need of care and protection and children in conflict with law, rehabilitation and social re- integration measures for such children, adoption of orphan, abandoned and surrendered children and offences committed against children. This legislation would thus ensure proper care, protection, development, treatment and social re-integration of children in difficult circumstance by adopting a child-friendly approach keeping in view the best interest of the child in mind.

6. The notes on clauses explain in detail the various provisions contained in the Bill.

7. The Bill seeks to achieve the above objectives."

Keeping in mind the above objectives the legislature promulgated the 2015

Act repealing the old Act of 2000. As per various provisions of the 2015 Act

and the Model Rules it can well be understood without any doubt

whatsoever that a child in conflict with law cannot be arrested and thus

there cannot be apprehension of arrest of the child. Accordingly, the

legislature in its wisdom has done away with the provision of anticipatory

bail in the 2015 Act as it intended that a child in conflict with law should

not be arrested and put behind bar under no circumstances and the

apprehension should be strictly as provided in the 2015 Act. Section 1(4)

of 2015 Act is a clear manifestation of the intent of the legislature that the

provisions dealing with apprehension and detention of the child will prevail

over any other law for the time being in force. For the sake of completeness

it may be noted that by the amendment Act 2021 which is introduced by

Gazette of India dated 09th August, 2021, no substantial amendment has

been made in Section 10 and Section 12 of the Act of 2015 excepting that

in Section 12 in sub-section (2), after the words 'observation home', the

words ' or a place of safety as the case may be' has been inserted.

12. It has been seriously pressed into service on behalf of the petitioners

that in the absence of provisions for anticipatory bail in the 2015 Act,

section 4(2) of the Criminal Procedure Code would not exclude a child in

conflict with law to seek anticipatory bail. It is a fact that the 2015 Act is

bereft of any provision enabling a child in conflict with law to move an

application for anticipatory bail. Section 4(2) of the Criminal Procedure

Code provides that all offences under any other law shall be investigated,

inquired into, tried and otherwise dealt with according to the same

provisions, but subject to any enactment for the time being in force

regulating the manner or place of investigating, inquiring into, trying or

otherwise dealing with such offences. Thus section 4(2) of the Code would

have limited application and be recognised as governing the field in areas

for which no special procedure or provision is made as under the 2015 Act.

Now the pertinent question which arises at this juncture is whether in its

limited application as indicated above, section 4(2) of the Code enables a

child in conflict with law to seek anticipatory bail?

Assuming for the sake of argument that if by virtue of the provision of

section 4(2) of the Code, section 438 of Criminal Procedure Code for

anticipatory bail is made applicable in case of a child in conflict with law,

and then in such event we may precisely deal with the consequences that

follow therefrom. Generally any application filed before a court of law has

two-fold consequences namely the application may be allowed or the same

may be rejected. Likewise an application under Section 438 of the Code

also carries with it similar consequence as indicated above. Now, the

question arises if an application filed at the instance of the minor for

anticipatory bail is rejected what would be the consequence? To find an

answer to the aforesaid query we may profitably refer to the proviso to

Section 438 of the Code which reads as thus:

"provided that, where the High Court, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to the officer-in-charge of the Police Station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application."

Therefore rejection of an application for anticipatory impliedly authorises

the police to arrest the applicant. However, it should be borne in mind that

as per section 10 of the 2015 Act a child in conflict with law under no

circumstances is to be put in police lock-up or lodged in jail. Thus the

proviso to section 438 of the Code as indicated above gives rise to a

situation, upon rejection of an application for anticipatory bail of a

minor/child, which is totally contrary to the import of the special

legislation of 2015 Act which provides that under no case the child would

be put in police lock-up or lodged in jail. We may now look to the other

consequence where an application for anticipatory bail of the child in

conflict with law is allowed. As per Section 12 of 2015 Act whenever a child

is apprehended or detained by the police or appears or brought before the

Board, it shall notwithstanding anything contained in the Code of Criminal

Procedure 1973(2 of 1974) or any other law for the time being in force,

release the child on bail with or without surety or place the child under the

supervision of a probationary officer or under the care of any fit person.

The section further empowers the Board not to release such child if it has

reasonable grounds to believe that the release of the child is likely to bring

the child into association with any known criminal or expose the said

person to moral, physical or psychological danger or that his release would

defeat the ends of justice. Therefore, we find that there are several

statutory parameters to be gone into by the Board while deciding the

release of a child in conflict with law upon presentation. The allowing of an

application for anticipatory bail of the child in conflict with law may lead to

direct intervention into the aforesaid powers of the Board to decide the

statutory parameters while releasing a child as envisaged in the

provisions.

Thus mere absence of any provision for anticipatory bail in the 2015 Act

does not per se entitle a child to approach for anticipatory bail under 438

of the Code for the reasons that it impairs the provisions of the 2015 Act

and leads to consequences, as discussed above, which are contrary to the

provisions of the 2015 Act, if applied.

13. It has been vociferously argued on behalf of the petitioners that there

are no express provisions putting embargo in invoking Section 438 of the

Code in case of a minor and accordingly, the same is impliedly applicable

in the absence of such express bar and the provisions of Section 3 of Act of

2015, if interpreted can safely be concluded that the structure of the Act of

2015 does not exclude the provisions of anticipatory bail/pre-arrest bail

under Section 438 of Criminal Procedure Code. It is a fact that the 2015

Act does not contain any provision expressly putting bar in applicability of

section 438 of the Code for anticipatory bail. Be that as it may, we are of

the considered view that such aspect automatically does not create any

right in the child in conflict with law to seek anticipatory bail for the

reason that the 2015 Act represents an all-encompassing, self-contained

and exhaustive code laying in place a separate and distinct procedure

required to be followed in case of apprehension or detention of a child in

conflict with law along with significant and special safeguards in respect

of apprehension of a child in conflict with law. Further, as the

"apprehension" appearing in the Act of 2015 in that sense is not

incarceration or detention by the police as normally understood, hence the

anticipation of arrest of a child is misplaced and for that reason, in our

view, the legislature did not choose to put any express bar in applicability

of section 438 of the Code for anticipatory bail in respect of a child. The

extension of provisions of section 438 of the Criminal Procedure Code

would apparently interfere with and disrupt the statutory process that is

otherwise prescribed to be followed upon apprehension of a child in

conflict with law. Further, the provisions of section 3 of the Act of 2015 are

general provisions and it does not extend the applicability of section 438 of

the Code.

14. It was further argued that the interpretation which benefits a child in

conflict with law should be adopted for ends of justice. In this regard, we

are of the opinion that purposive construction must be adopted for

ascertaining the true intent of the Parliament as far as the Juvenile Justice

Act is concerned. Whether releasing a child in conflict with law is

beneficial or keeping him in an observation home is more desirable, are

squarely matters which are to be decided by the Board as envisaged under

Section 12 of the Juvenile Justice Act and merely allowing the application

for anticipatory bail cannot be said to be beneficial for a child in conflict

with law.

15. Having noticed the relevant provisions and the underlying scheme of

the 2015 Act, the stage is now set to consider the decisions rendered by

different High Courts on the subject, placed before us, including our

Court.

Let us first deal with the judgments which have held an application for

anticipatory bail at the instance of a child in conflict with law to be

maintainable.

15.1.In the case of Miss A versus State of M.P reported in ILR (2019) MP

662 the Madhya Pradesh High Court held that no provision in the Act of

2015, either expressly or by necessary implication, excludes applicability

of Section 438 of the Code which provides for grant of anticipatory bail. In

the absence of any special provision dealing with grant of anticipatory bail

to a juvenile/CICL, the provisions contained in the Code regarding

anticipatory bail shall be applicable. The Act of 2015 even otherwise does

not exclude general application of the Code, therefore, it cannot be inferred

that the legislature intended to give overriding effect to the statutory

scheme of the Act of 2015 over the provisions of general application

contained in the Code.

15.2. In its decision in the case of Birbal Munda & Ors versus The State

of Jharkhand reported in Manu/JH/1400/2019, the Jharkhand High

Court has held an application under section 438 of the Criminal Procedure

Code to be maintainable at the instance of a child in conflict with law on

two fold score; firstly, that the non-obstante clause appearing in section 12

of Juvenile Justice (Care and Protection) Act, 2015 does not take away

various provisions of bail or anticipatory bail envisaged in the Criminal

Procedure Code and secondly apprehending means arrest of a person and

such apprehension curtails the personal liberty of a person.

15.3. Similarly, the Chhattisgarh High Court in its decision in Sudhir

Sharma versus State of Chhattisgarh reported in 2017 SCC Online

Chh 1554 held the application for grant of anticipatory bail under section

438 of the Criminal Procedure Code maintainable at the behest of a child

in conflict with law on the ground that the said remedy is not excluded by

operation of section 12 of Act of 2000 or section 12 of Act, 2015.

15.4.Further in its decision in Mr X (Prashob), S/o Baby V.M versus

State of Kerala reported in 2018 (3) RCR (Cri) 327 the Kerala High Court

held that the provisions contained in section 12(1) does not take away the

jurisdiction of High Court or Court of Session under section 438 of the

Code even by implication and the provision of anticipatory bail is not

expressly excluded and merely for reason that the Act provides for

apprehending a child in conflict with law and not for arresting him, it

cannot be held that the application under section 438 of Code by him is

not maintainable.

15.5. In its judgment in the case of Krishan Kumar Minor thrugh his

mother versus State of Haryana reported in 2020 (3) RCR (Cri) 180 the

Punjab & Haryana High Court held the application for grant of anticipatory

bail under section 438 of the Criminal Procedure Code to be maintainable

at the behest of a child in conflict with law on the ground that no inference

can certainly be drawn that the legislature intended to debar a juvenile

from seeking relief of pre-arrest bail and if it was so, then specific provision

in that regard should have been there.

15.6. The Gujrat High Court in its decision in Kureshi Irfan Hasam bhai

thro Kureshi Kalubhai Hasambhai versus State of Gujarat reported in

2021 (O) AIJEK-HC-243111held the application for anticipatory bail at

the instance of a child in conflict with law to be maintainable on the score

that the word 'apprehension' in section 10 of the Act, 2015 is at par with

and synonymous with 'arrest' used in section 438 of the Code and further

the Act of 2015 does not expressly bar application of section 438 of the

Code.

15.7.Upon going through the aforesaid judgements of the different High

courts it is found that in Birbal Munda & Ors versus The State of

Jharkhand (supra) and Kureshi Irfan Hasambhai thro Kureshi

Kalubhai Hasambhai versus State of Gujarat (supra) it is held that the

word 'apprehension' in section 10 of the Act, 2015 is at par with and

synonymous with 'arrest' used in section 438 of the Code. Further in all

the aforesaid decisions it has been held that as the Act of 2015 does not

expressly bar application for anticipatory bail hence the provisions of

section 438 of the Code for anticipatory bail are applicable in case of a

child in conflict with law. We have already dealt with the aspect that the

apprehension appearing in the 2015 Act in that sense is not an

incarceration or detention by the police as normally understood. Moreover,

we are of the considered view that although the Act of 2015 does not

expressly bar application for anticipatory bail, yet that does not ipso facto

create any right in a child in conflict with law to seek anticipatory bail for

the reason that the 2015 Act is a compendious and comprehensive code

laying in place a separate and distinct procedure liable to be followed in

case of apprehension or detention of a child in conflict with law including

special safeguards in respect of apprehension of a child in conflict with

law. Further the legislature in its wisdom has not expressly barred the

applicability of section 438 of the Code as the 2015 Act does not provide

for detention of the child in police custody or jail and there is no

anticipation of arrest. Accordingly we most respectfully cannot agree with

such decisions of the aforesaid High Courts.

15.8. In the decision of a co-ordinate bench of this court in CRM 5419 of

2021 [Saud (minor) represented by his father Morful Sk] as relied

upon, the Court granted anticipatory bail to the minor petitioner. However,

no issue regarding maintainability of an application for anticipatory bail at

the instance of a minor was considered in the said decision.

16. Now we shall proceed to deal with the judgements which say that the

application for anticipatory bail at the instance of a child in conflict with

law is not maintainable.

16.1.In CRM 10177 of 2016, Jiban Mondal, In Re reported in 2017

SCC Online Cal 1919 a Co-ordinate Bench of this Court held that an

application under section 438 of the Code at the instance of a minor is not

maintainable as from the sections dealing with the subject it is clear that a

child in conflict with law is to be placed under charge of Special Juvenile

Police Unit or designated Child Welfare Police Officer and has to be

produced before the J.J Board within 24 hours.

16.2. In Krishna Garai & Ors versus The State of West Bengal

reported in (2016) 2 C Cr LR (Cal) 561 a Co-ordinate Bench of this Court

held that the Act of 2000 is a special Act carved out from the 1973 Act and

meant especially for juveniles and therefore will prevail over the 1973 Act

and an application for anticipatory bail by a minor is not maintainable.

16.3.In CRM 2206 of 2015, Taimina Bibi reported in 2015 SCC Online

Cal 4299 a Co-ordinate Bench of this Court held that as the petitioner

no.5 in that case was below the age of 18 years, her case be considered by

the concerned Juvenile Justice Board and not by them.

16.4. The Allahabad High Court in its decision in Shahab Ali (minor) and

another versus State of Uttar Pradesh reported 2020 CriLJ4479 held

that the provisions of Section 438 are impliedly excluded after registration

of FIR and section 10 of the 2015 Act comes to play and hence an

application under section 438 of the Criminal Procedure Code at the

behest of a juvenile is not maintainable.

16.5.In the decision in K.Vignesh versus State reported in 2017 SCC

Online Mad 28442 the Madras High Court held that from the provisions

of the 2015 Act it can well be understood without any doubt whatsoever

that a child in conflict with law cannot be arrested and thus there cannot

be apprehension of arrest of the child and hence application for

anticipatory bail at the instance of a minor is not maintainable.

16.6.The Madhya Pradesh High Court in its decision passed in Kamlesh

Gurjar versus State of M.P reported in 2020 (1) RCR (Cri) 434 held that

in the absence of specific provisions in the Act of 2015, a juvenile is not

entitled to move an application under section 438 of the Criminal

Procedure Code, 1973.

16.7.At the outset we accept and concur with the observation of a co-

ordinate Bench of this Hon'ble court made in Krishna Garai & Ors

versus The State of West Bengal (supra) that the special law will prevail

over the 1973 Code and thus the Juvenile Justice Act has an overriding

effect over any other law for the time being in force. Hence, an application

for anticipatory bail at the instance of a minor is not maintainable. This

court further in Jiban Mondal, In Re (supra) and Taimina Bibi (supra)

held the an application for anticipatory bail at the instance of a minor to

be not maintainable, due to statutory obligation envisaged in the Act and

we respectfully agree with such observations. We also agree with the

observations of the courts made in Shahaab Ali (minor) and another

versus State of Uttar Pradesh (supra) regarding exclusion of the

provisions of Section 438 of the Code upon registration of FIR and in

K.Vignesh versus State (supra) making an application for anticipatory

bail not maintainable at the instance of a minor as there is no

apprehension of arrest of a child in conflict with law. As regards Kamlesh

Gurjar versus State of M.P (supra) we are of the considered view that

absence of provisions for anticipatory bail in the 2015 Act cannot be the

only ground of disentitling a minor from seeking anticipatory bail.

17. Learned Advocate appearing for the petitioners placing reliance on the

decision of Hon'ble Apex Court in Shilpa Mittal versus State (NCT of

Delhi) (supra) argued that the purpose of the Act of 2015 is to protect a

juvenile /child in conflict with law and therefore when two views are

possible, the one which favours the child in conflict with law should be

adopted. In the aforesaid decision the Hon'ble Apex Court had the occasion

to deal with the category of offences under the Juvenile Justice Act and

observed that where the offence is not covered under section 2(33) of the

Act the same should be treated as 'serious offence' within the meaning of

section 2(54) till the Parliament takes steps to clarify the position and

while dealing with the said aspect observed that when two views are

possible, the one that would favour the child in conflict with law should be

preferred. In the case in hand we are dealing with maintainability of an

application for anticipatory bail which cannot be equated with the legal

question that was before the Hon'ble Apex Court in the aforesaid decision

and as such the ratio does not apply in the present case.

18. It is found that there are various safeguards provided to a child in

conflict with law in the event the child is apprehended by the police.

Taking into consideration the safeguards provided under the 2015 Act and

in the light of the legal position that a child in conflict with law cannot be

arrested, the question of granting bail in anticipation of arrest of a child in

conflict with law does not arise at all. In the 2015 enactment the

legislature did not, consciously, empower the police to arrest a child in

conflict with law. Accordingly, we are of the considered view that an

application for anticipatory bail under section 438 of the Criminal

Procedure Code at the instance of a child in conflict with law is not

maintainable.

19. The interim order, accordingly, stands vacated.

20. In the light of above observation, CRM no. 2739 of 2021 is dismissed.

21. However, although neither of the sides drew our attention to the

Judgment of a Division Bench of this Court, the Judgment in the case of

Miss Surabhi Jain (Minor) & Ors. in CRM 405 of 2021 has come to our

notice. In that Judgment, a Coordinate Bench has come to the conclusion

that an application for anticipatory bail at the instance of a minor/juvenile

is maintainable. That Bench has differed from the conclusion reached by

an earlier Division Bench of this Court in the Case of Krishna Garai v.

The State of West Bengal, 2016 (5) CHN (Cal) 157, wherein it was held

that such an application is not maintainable. The Division Bench in the

case of Miss Surabhi Jain (Minor) & Ors. in CRM 405 of 2021, referred

the issue to the Chief Justice to constitute a larger Bench to decide the

point. However, the Division Bench, being of the view that such an

application is maintainable, allowed the application on merit.

We respectfully disagree with the conclusion reached by the

coordinate Bench in the case of Miss Surabhi Jain (Minor) & Ors. in

CRM 405 of 2021. We have recorded our detailed reasons hereinabove as

to why in our opinion, an application for anticipatory bail at the instance

of a minor/juvenile is not maintainable. Accordingly we have dismissed the

application. However, we also request the Hon'ble Chief Justice to

constitute a larger Bench to decide as to whether or not an application for

anticipatory bail under section 438 of the Cr.P.C at the instance of a

minor/juvenile is maintainable, in view of the fact that there is divergence

of opinion between coordinate benches of this Court in that regard.

22. Accordingly, CRM no.2739 of 2021 stands disposed of.

23. All parties shall act on the server copies of this order duly downloaded

from the official website of this Court.

Bivas Pattanayak, J

I Agree,

Arijit Banerjee, J