Mohammed Bin Ziyad vs The State Of Telangana
2021 Latest Caselaw 1679 Tel

   IN THE HIGH COURT FOR THE STATE OF TELANGANA
                                AT: HYDERABAD
                            CORAM:
               *THE HON'BLE SRI JUSTICE K. LAKSHMAN

                    + WRIT PETITION No.12422 OF 2021
% Delivered on: 21-06-2021

Between:

# Mr. Mohammed Bin Ziyad, a minor, rep.
  By his mother Smt. Noor                                           .. Petitioner

                                           Vs.

$ The State of Telangana & another                               .. Respondents



! For Petitioner                       : Mr. M.A. Mujeeb



^ For Respondents                     : Mr. S. Rama Mohan Rao,
                                        Learned Asst. Govt. Pleader for Home


< Gist                                 :


> Head Note                            :


? Cases Referred                       :

   1.    CRR-725-2019 (O&M), decided on 08.01.2020
   2.    2017 SCC OnLine Mad 28442
   3.    2019 Crl.L.J. 4017
   4.    2016 (2) ALT (Crl.) 81 (AP)
   5.    M.Cr.C. No.10345 of 2019, decided on 20.03.2019
   6.    2010 (IV) MPJR 155
   7.    2019 SCC OnLine 1794
   8.    R/Crl.Misc.App.No.6978 of 2021, decided on 09.06.2021
                                     2
                                                                          KL,J
                                                          W.P.No.12422 of 2021




              HON'BLE SRI JUSTICE K. LAKSHMAN

                 WRIT PETITION No.12422 OF 2021

ORDER:

This Writ Petition is filed to declare the action of respondents in

not releasing the petitioner Juvenile on bail in Crime No.175 of 2021

pending on the file of Chandrayanagutta Police Station, Hyderabad in the

event of his arrest as illegal and contrary to Section - 12 of the Juvenile

Justice (Care and Protection of Children) Act, 2015 (for short 'JJ Act,

2015').

2. Heard Mr. M.A. Mujeeb, learned counsel for the petitioner and

learned Assistant Government Pleader appearing on behalf of

respondents - State.

3. The petitioner herein is sole accused in Crime No.175 of 2021.

The offences alleged against him are under Section - 354 of IPC and

Section - 7 read with Section 8 of the Protection of Children from Sexual

Offences Act, 2012.

4. As per the complaint, the allegations against the petitioner are

that, on 10.04.2021 at around 8.15 p.m., when de facto complainant went

out to purchase grocery, he entered into her house, started touching the

private parts of her daughter and torn her kurti. The daughter of de facto

complainant pushed the petitioner away in order to save herself, he beat

her with fist blows. However, her daughter escaped from the petitioner

KL,J W.P.No.12422 of 2021

and informed her over phone. When the de facto complainant came from

the market, the petitioner along with his friends was standing outside her

house and when she objected, he also started beating her with fist blows

on her neck, head, chest and stomach and touched her inappropriately.

Then, she cried for help, on which he threatened her with dire

consequences.

5. On receipt of the said complaint dated 12.04.2021, P.S.

Chandrayanagutta have registered a case in Crime No.175 of 2021 for the

aforesaid offences.

6. The petitioner herein aged about 17 years claiming to be a

juvenile, filed an application under Section - 438 of Cr.P.C. seeking

anticipatory bail before the learned I Additional Metropolitan Sessions

Judge, Nampally, Hyderabad, and the same was returned with the

following objections:

" 1) This petition is filed u/s.438 Cr.P.C. by the counsel for petitioner/accused for the offence u/s.354 IPC, 7 r/w 8 of POCSO Act in Cr.175/21 of PS. Chandrayanagutta. The petitioner is the mother of accused who's aged about 17 yrs. (Minor). Hence representing her son.

2) As per the citation filed along with this petition, observed that though there is no provision in CrPC, for grant of anticipatory bail, but even the High Court has powers to grant anticipatory bail in writ jurisdiction in appropriate Courts.

Returned, Sd/ 7/5"

KL,J W.P.No.12422 of 2021

7. Referring to the said objections, Mr. M.A. Mujeeb, learned

counsel for the petitioner would submit that writ petition is maintainable

as the JJ Act, 2015 is silent with regard to anticipatory bail. In support of

his contention, he has placed reliance on the principle laid down in

Kishan Kumar v. State of Haryana1.

8. On the other hand, Mr. S. Rama Mohan Rao, learned Assistant

Government Pleader for Home, on instructions, would submit that the

present writ petition filed by the petitioner, a juvenile, seeking

anticipatory bail is not maintainable. There is no provision in the JJ Act,

2015 to grant anticipatory bail to a juvenile. According to him, the

provisions of JJ Act, 2015 are very liberal in granting regular bail to a

juvenile and, therefore, the petitioner has to avail remedy under Section -

12 of the JJ Act, 2015. Instead of doing so, the petitioner filed the

present writ petition seeking anticipatory bail and, therefore, the same is

not maintainable.

9. In view of the above rival submissions, the question that falls

for consideration before this Court is:

Whether a juvenile can seek anticipatory bail, that too by way of writ petition?

10. To decide the aforesaid issue, according to this Court, it is

relevant to refer to the aims and objects of the Juvenile Justice (Care and

Protection of Children) Act, 2015, which is a Special Statute. Treatment

. CRR-725-2019 (O&M), decided on 08.01.2020

KL,J W.P.No.12422 of 2021

of the child in a manner consistent with the promotion of the child's sense

of dignity and worth, which reinforces the child's respect for the human

rights and fundamental freedoms of others and which takes 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 are the stated

objects and reasons for enacting 2015 Act.

i) It was also further object of the said Act that to consolidate and

amend the law relating to children alleged and found to be in conflict

with law and children in need of care and protection by catering to their

basic needs through proper care, protection, development, treatment,

social re-integration, by adopting a child-friendly approach in the

adjudication and disposal of matters in the best interests of children and

for their rehabilitation through processes provided, and institutions and

bodies established, herein under and for matters connected therewith or

incidental thereto. It is also relevant to refer that the provisions of the

Constitution confer powers and impose duties, under Articles - 15 (3), 39

(e) & (f), 45 and 47 on the State to ensure that all the needs of children

are met and that their basic human rights are fully protected. The

Government of India has acceded on the 11th December, 1992 to the

Convention on the Rights of the Child, adopted by the General Assembly

of United Nations, which has prescribed a set of standards to be adhered

to by all State parties in securing the best interest of the child.

ii) It is also relevant to note that the Legislature on a review of the

working of the existing Children Act, on coming to a conclusion that

KL,J W.P.No.12422 of 2021

much greater attention is required to be given to children who may be

found in situations of social maladjustment, delinquency or neglect. The

justice system as available for adults is not considered suitable for being

applied to juvenile. It is also necessary that a uniform juvenile justice

system should be available throughout the country which should make

adequate provision for dealing with all aspects in the changing social,

cultural and economic situation in the Country. There was need for

larger involvement of informal systems and community based welfare

agencies in the care, protection, treatment, development and

rehabilitation of such juveniles.

iii) Therefore, in view of the said conclusions and during review,

the Legislature has enacted a Juvenile Justice Act, 1986 with an object to

provide for the care, protection, treatment, development and

rehabilitation of neglected or delinquent juveniles and for the

adjudication of certain matters relating to and disposition of, delinquent

juveniles. Thereafter, on consideration of the latest developments and

also the decisions taken in various Conventions, the said Juvenile Justice

Act, 1986 was replaced with Juvenile Justice (Care and Protection of

Children) Act, 2000. On further review and on further consideration of

various aspects, to make comprehensive provisions for children alleged

and found to be in conflict with law and children in need of care and

protection, taking into consideration the standards prescribed in the

Convention on the Rights of the Child, the United Nations Standard

Minimum Rules for the Administration of Juvenile Justice, 1985 (the

Beijing Rules), the United Nations Rules for the Protection of Juveniles

KL,J W.P.No.12422 of 2021

Deprived of their Liberty (1990), the Hague Convention on Protection of

Children and Co-operation in respect of Inter-Country Adoption (1993),

and other related international instruments were considered and

reviewed. Therefore, to consolidate and amend the law relating to

children alleged and found to be in conflict with law and children in need

of care and protection by catering to their basic needs through proper

care, protection, development, treatment etc., an enactment was

introduced as the Juvenile Justice (Care and Protection of Children) Act,

2015 vide Act No.2 of 2016. Thus, it is a special enactment.

11. In this regard, it is apposite to refer the relevant provisions of

JJ Act, 2015, which are as under:

i) Section - 4 deals with 'constitution and composition of Juvenile

Justice Board and appointment of Members etc.

ii) Section - 7 deals with procedure in relation to Board including

meetings etc.

iii) Section - 8 deals with powers, functions and responsibilities of

the Board, which is as under:

"Section - 8 Powers, functions and responsibilities of the Board.--

(1) Notwithstanding anything contained in any other law

for the time being in force but save as otherwise expressly

provided in this Act, the Board constituted for any district

shall have the power to deal exclusively with all the

KL,J W.P.No.12422 of 2021

proceedings under this Act, relating to children in conflict

with law, in the area of jurisdiction of such Board.

(2) The powers conferred on the Board by or under this Act

may also be exercised by the High Court and the Children's

Court, when the proceedings come before them under

section 19 or in appeal, revision or otherwise.

(3) The functions and responsibilities of the Board shall

include--

(a) ensuring the informed participation of the child and the parent or guardian, in every step of the process;

(b) ensuring that the child's rights are protected throughout the process of apprehending the child, inquiry, aftercare and rehabilitation;

(c) ensuring availability of legal aid for the child through the legal services institutions;

(d) wherever necessary the Board shall provide an interpreter or translator, having such qualifications, experience, and on payment of such fees as may be prescribed, to the child if he fails to understand the language used in the proceedings;

(e) directing the Probation Officer, or in case a Probation Officer is not available to the Child Welfare Officer or a social worker, to undertake a social investigation into the case and submit a social investigation report within a period of fifteen days from the date of first production before the Board to ascertain the circumstances in which the alleged offence was committed;

(f) adjudicate and dispose of cases of children in conflict with law in accordance with the process of inquiry specified in section 14;

(g) transferring to the Committee, matters concerning the child alleged to be in conflict with law, stated to be in need of care and protection at any stage, thereby recognising that a child in conflict with law can also be a child in need of care simultaneously and there is a need for the Committee and the Board to be both involved;

KL,J W.P.No.12422 of 2021

(h) disposing of the matter and passing a final order that includes an individual care plan for the child's rehabilitation, including follow up by the Probation Officer or the District Child Protection Unit or a member of a non-governmental organisation, as may be required;

(i) conducting inquiry for declaring fit persons regarding care of children in conflict with law;

(j) conducting at least one inspection visit every month of residential facilities for children in conflict with law and recommend action for improvement in quality of services to the District Child Protection Unit and the State Government;

(k) order the police for registration of first information report for offences committed against any child in conflict with law, under this Act or any other law for the time being in force, on a complaint made in this regard;

(l) order the police for registration of first information report for offences committed against any child in need of care and protection, under this Act or any other law for the time being in force, on a written complaint by a Committee in this regard;

(m) conducting regular inspection of jails meant for adults to check if any child is lodged in such jails and take immediate measures for transfer of such a child to the observation home; and

(n) any other function as may be prescribed."

iv) Section - 10 deals with apprehension of child alleged to be in

conflict with law, which is as under:

"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 15 before the Board without any loss of time but

within a period of twenty-four hours of apprehending the

KL,J W.P.No.12422 of 2021

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 lockup or

lodged in a jail.

(2) The State Government shall make rules consistent with

this Act,--

(i) to provide for persons through whom (including registered voluntary or non-governmental organisations) any child alleged to be in conflict with law may be produced before the Board;

(ii) to provide for the manner in which the child alleged to be in conflict with law may be sent to an observation home or place of safety, as the case may be."

v) Section - 12 deals with bail to a juvenile, which is as under:

"12. 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 abailable 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 so released if

there appears reasonable grounds for believing that the

release is likely to bring that person into association with

KL,J W.P.No.12422 of 2021

any known criminal or expose the said person to moral,

physical or psychological danger or the person's release

would defeat the ends of justice, and the Board shall record

the reasons for denying the bail and circumstances that led

to such a decision.

(2) When such person having been apprehended is not

released on bail under sub-section (1) by the officer-in-

charge of the police station, such officer shall cause the

person to be kept only in an observation home in such

manner as may be prescribed until the person can be

brought before a Board.

(3) When such person is not released on bail under sub-

section (1) by the Board, it shall make an order sending him

to an observation home or a place of safety, as the case may

be, for such period during the pendency of the inquiry

regarding the person, as may be specified in the order.

(4) When a child in conflict with law is unable to fulfil the

conditions of bail order within seven days of the bail order,

such child shall be produced before the Board for

modification of the conditions of bail."

12. A perusal of the scheme of the Act, there is no provision for

grant of anticipatory bail.

13. A perusal of Sections - 437 and 439 of Cr.P.C. and Sections -

8, 10 and 12 of the JJ Act, 2015 would reveal that power in respect of

grant of bail to a juvenile is more liberal in the nature of command

KL,J W.P.No.12422 of 2021

under Section 12 (1). Whenever an apparent juvenile alleged to have

committed a bailable or non-bailable offence is detained by the police or

appears or brought before a Board, such person shall, notwithstanding

anything contained in Cr.P.C. 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. The

only rider for not releasing the apparent juvenile is that whenever there

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

that person (Juvenile) into association with any known criminal or

expose the said person to moral, physical or psychological danger or his

release would defeat the ends of justice, the Board shall record the

reasons for denying the bail and circumstances that led to such a

decision. The said rider as contained in proviso to Section 12 (1)

requires the Board to record reasons for denying the bail. It would mean

that ordinarily the bail is to be allowed to a juvenile. The denial being

exceptional on certain reasons to be recorded by the Board as provided in

the proviso. This special provision is not there under Section - 439 of

Cr.P.C.

14. It is relevant to note that the word "shall" is used in Section -

12 of JJ Act, 2015. Therefore, at the time of consideration of bail under

Section - 12 of the JJ Act, 2015 merits or nature of offence has no

relevancy. As stated above, the word "shall" used in Section - 12 makes

it mandatory for release of a juvenile in conflict with law on bail if there

is no material on record to show that his release would defeat the ends of

KL,J W.P.No.12422 of 2021

justice or there is no likelihood of he being associated with any criminal

or expose himself to any danger.

15. It is also relevant to note that under the statutory scheme of the

Act, 2015, a comprehensive provision has been made as to how a child in

conflict with law has to be dealt with when he is apprehended and not

released on bail. The said provisions are contained under sub-sections

(2), (3) & (4) of Section - 12 of the JJ Act, 2015. Under the said

provision, on denial of bail, such person (Juvenile) has to be kept in

observation home in the manner prescribed until he is brought before the

Board. It is also provided that when a child in conflict with law is unable

to fulfill the conditions of bail within 7 days of the bail order, such child

shall be produced before the Board for modification of the conditions of

bail. The provisions pari materia are not available under Section -

439 of Cr.P.C. When the bail is granted to the juvenile is not in a

position to satisfy the conditions of bail, it is not mandated

under Cr.P.C. that such child shall be produced before the Board for

modification of the conditions of bail. In the absence of this provision

either in case of denial of bail or even when the bail is allowed

under Section - 439 of Cr.P.C., but the conditions of bail are not satisfied,

the juvenile would be deprived of his statutory right under Section -

12 (2), (3) & (4) of the JJ Act, 2015. It is precisely for this

reason Section - 12 of the JJ Act, 2015 provides for overriding effect due

to use of non-obstante clause, therefore, the post arrest bail of juvenile in

conflict with law is required to be dealt with under the special provision

KL,J W.P.No.12422 of 2021

contained in Section - 12 of the Act of 2015 and to the said extent it will

exclude operation of Section - 437 or Section - 439 of Cr.P.C.

16. It is also relevant to note that the said issue of maintainability

of anticipatory bail filed by the juvenile is no more res integra. A

Division Bench of the Madras High Court in K. Vignesh v. State rep.by

the Inspector of Police2 had an occasion to consider the said aspect. The

Division Bench after considering various provisions including Section -

438 of Cr.P.C. and Section - 12 of the JJ Act, 2015 and also the fact that

lot of safeguards were provided to the child in conflict with law in the

event the child is apprehended by the police held that the child in conflict

with law cannot be arrested, the child in conflict with law need not apply

for anticipatory bail. The legislature has consciously did not empower

the police to arrest a child in conflict with law. Thus, it is manifestly

clear that an application seeking anticipatory bail under Section - 438 of

Cr.P.C. at the instance of a child in conflict with law is not at all

maintainable. Similarly, a direction to the Juvenile Justice Board to

release the child in conflict with law cannot be issued by the High Court

in exercise of its inherent power saved under Section - 482 of Cr.P.C.

17. In Tejram Nagrachi Juvenile v. State Of Chhattisgarh3, a

Division Bench of Chhattisgarh High Court had also an occasion to deal

with maintainability of bail application of a juvenile and held that grant

of bail to a juvenile is required to be dealt with under Section - 12 of the

JJ Act, 2015 and not under Sections - 437 or 439 of Cr.P.C.

. 2017 SCC OnLine Mad 28442

. 2019 Crl.L.J. 4017

KL,J W.P.No.12422 of 2021

18. In Shaik Vazid v. State of A.P.4 an issue as to whether a

juvenile in conflict with law can be released on bail by invoking

provisions of Sections - 437 and 439 of Cr.P.C. fell for consideration. In

the said judgment, it was held that a juvenile has to take a shelter under

Section - 12 of the JJ Act, 2015 but not under Sections - 437 and 439 of

Cr.P.C.

19. In Kishan Kumar1, the Punjab and Haryana High Court at

Chandigarh held that juvenile has to avail remedy under Section - 12 of

the JJ Act, 2015 for regular bail. It had exercised the discretion granting

pre-arrest bail and held that Hgh Court has power to grant anticipatory

bail in writ jurisdiction in appropriate cases.

20. In Kamlesh Gurjar v. The State of Madhya Pradesh5, the

High Court of Madhya Pradesh at Indore, on consideration of the

principle laid down by it earlier and also other High Courts held that

anticipatory bail in respect of a juvenile is not maintainable and the

juvenile has to avail remedy under Section - 12 of the JJ Act, 2015. It

was also categorically held that for grant of anticipatory bail by a

juvenile cannot be entertained by the High Court or the Court of Session

by applying the provision contained under Section - 6(2) of the Act, and

the powers conferred on the Board can be used by High Court and the

Court of Session only when proceedings come before them in appeal,

revision or otherwise except under Sections - 438 and 439 of Cr.P.C.

. 2016 (2) ALT (Crl.) 81 (AP)

. M.Cr.C. No.10345 of 2019, decided on 20.03.2019

KL,J W.P.No.12422 of 2021

21. In Kapil Durgawani v. State of Madhya Pradesh6, the

Madhya Pradesh High Court held that even the Juvenile Board has no

jurisdiction to entertain anticipatory bail application. A similar view has

been taken by the Chhattisgarh High Court in Preetam Pathak v. State

of Chhattisgarh [MCRC (A) No. 1104 of 2014].

22. In Birbal Munda v. State of Jharkhand7, the Jharkhand

High Court considering the definitions and provisions of the JJ Act, 2015

held that anticipatory bail is maintainable.

23. In Kureshi Irfan Hasambhai through Kureshi Kalubhai

Hasambhai v. State of Gujarat8, the Gujarat High Court considering the

principle laid down by the Madhya Pradesh High Court in Vinayak

Pandey v. State of Madhya Pradesh [M.Cr.C. No.22489 of 2007], and

also by referring to the principle laid down by the Madras High Court

and also considering the facts of the said cases, granted anticipatory bail

to the juvenile therein.

24. In view of the above said discussion and also considering the

principle laid down by the Division Bench of Madras High Court in

Vignesh2, I disagree with the principle laid down by the Punjab and

Haryana High Court in Kishan Kumar1 and also the Gujarat High Court

in Kureshi Irfan Hasambhai8. I respectfully agree with the principle

laid down by the Division Bench of Madras High Court in K. Vignesh2.

Thus, according to this Court, filing of an anticipatory bail application by

. 2010 (IV) MPJR 155

. 2019 SCC OnLine 1794

. R/Crl.Misc.App.No.6978 of 2021, decided on 09.06.2021

KL,J W.P.No.12422 of 2021

a juvenile under Section - 438 of Cr.P.C. in a writ petition is not

maintainable, and that the juvenile has to avail the remedy under Section

- 12 of the JJ Act, 2015.

25. In view of the above discussion, coming to the case on hand,

prima facie, there are serious allegations against the petitioner mentioned

above.

26. For the foregoing discussion, this Writ Petition is dismissed,

however, liberty is granted to the petitioner to avail remedy under

Section - 12 of the JJ Act, 2015. In the circumstances of the case, there

shall be no order as to costs.

As a sequel, the miscellaneous petitions, if any, pending in the writ

petition shall stand closed.

__________________ K. LAKSHMAN, J

21st JUNE, 2021

Note: L.R. Copy to be marked (B/O.)Mgr