While deciding on a case titled Kureshi Irfan Hasambhai Thro Kureshi Kalubha Vs State of Gujarat in R/Criminal Misc. Application No. 6978 of 2021 delivered just recently on June 9, 2021, the Gujarat High Court has cogently, clearly and convincingly held in its oral order that there is no express bar of application of anticipatory bail under Section 438 CrPC to the children in conflict with law as covered by the Juvenile Justice Act, 2015. It must be mentioned here that the development came in an application for anticipatory bail filed under Section 438 CrPC by a 17-year-old accused, child in conflict with law apprehending that he may be falsely involved in the offence on account of previous enmity with one of the accused persons.
A Single Judge Bench comprising of Justice AY Kogje of Gujarat High Court had observed aptly that:
...this Court is of the opinion that there is no expressed bar of application of Section 438 of the Code to the children in conflict with law covered by the Act, 2015 and in absence of expressed bar of application of Section 438 of the Code, there is no reason to imply such bar more particularly in the facts of the present case where the applicant who is juvenile is not even named as an accused and has raised a apprehension for being impleaded on extraneous consideration.
To start with, the ball is set rolling first and foremost in para 2 of this latest, learned, laudable and landmark judgment authored by Justice AY Kogje of Gujarat High Court wherein it is put forth that:
This is an application by the applicant under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of his arrest in connection with FIR registered at C.R. No.11192050210093 of 2021 before Sanand Police Station, Ahmedabad (Rural) for the offence under Sections 143, 147, 148, 149, 152, 153, 224, 225, 186, 332, 353, 395, 397, 427 and 504 of the Indian Penal Code, under Section 135 of the GP Act and under Section 12 of the Gambling Act.
To say the least, the Bench then points out in para 3 that:
The application is filed through the brother of the proposed accused who is aged 17 years and apprehends that he may be falsely involved in the aforesaid offence on account of the previous enmity with the accused No.1 though applicant is not named as an accused in the FIR.
While stating the purpose of the application, the Bench then lays bare in para 4 that:
The application essentially is for anticipatory bail of child in conflict with law. The State through Additional Public Prosecutor has raised question of maintainability of this application and therefore, the issue comes for consideration as to whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure (for short the Code) can be maintained by child in conflict with law more particularly considering the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short the Act, 2015).
Be it noted, the Bench then enunciates in para 5 that:
The personal liberty of an individual is at the highest pedestal and the personal liberty of a juvenile cannot be considered to be anything lower. Right of an individual to a legal recourse is also fundamental for an individual and has to be so if not with more vigor for a juvenile.
To put things in perspective, the Bench then envisages in para 5.1 that:
With the aforesaid, it would be necessary to refer to few facts of the case. The applicant who is not named as an accused in the FIR has raised an apprehension that the applicant will be falsely implicated in the offence by naming him as an accused during the course of investigation by or at the behest of the accused No.1 as the applicant is having a previous quarrel with accused No.1 named in the FIR over a pet dog and therefore, the said accused No.1 would try to get the name of the applicant involved. Therefore, an application was filed before the 8th Additional District and Sessions judge, Ahmedabad (Rural) at Mirzapur, however, on account of maintainability the application was not entertained.
Simply put, the Bench then reveals in para 6 that:
Learned advocate for the applicant submitted that the applicant is not involved in the offence and therefore also, the complainant has not named him in the offence however apprehension of arrest has arisen due to previous incident which occurred between accused No.1 regarding pet dog for which in the present offence accused No.1 and/or other co-accused named in the FIR are likely to name the present applicant as an accused in the offence during the course of investigation; thereby falsely implicating the applicant in the offence. It is submitted that the applicant had furnished a Video Footage to the Investigating Officer as well as to the Sessions Court wherein the entire incident was seen and no role of the applicant was coming out in that. It is also submitted that the co-accused who are named in the FIR have been enlarged on regular bail.
To buttress what is stated above, the Bench then also brings out in para 6.1 that:
Reliance is placed upon the decision of Punjab and Haryana High Court in the case of Krishan Kumar Minor through his mother v/s. State of Haryana in CRM-M No.19907 of 2020 (O&M) to indicate that the High Court had exercised the discretion granting pre-arrest bail. Reliance is also placed upon the decision in the case of Kumari Shivani and another v/s. State of M.P., reported in 2009 SC OnLine MP 4803, wherein the anticipatory bail to the minor was granted. Reliance is also placed upon the decision of Jharkhand High Court in the case of Birbal Munda and others v/s. State of Jharkhand, reported in 2019 SCC OnLine 1794. It is submitted that the Jharkhand High Court had taken into consideration all the aspects including relevant definitions and provisions of Juvenile Justice Act and concluded that the application for anticipatory bail is maintainable.
On the contrary, the Bench then also discloses in para 7 that:
As against this, learned Additional Public Prosecutor has opposed the grant of application by submitting that the provisions of Act, 2015 does not provide for effecting of arrest and therefore, condition precedent of arrest for invoking Section 438 of the Code does not arise and therefore, the order of the Sessions Court, Ahmedabad (Rural) holding application under Section 438 of the Code is not maintainable, is justified.
Adding more to what is stated above, the Bench then points out in para 7.1 that, Learned APP has also relied upon the decision in the case of Suriya v/s. State of The Tamil Nadu by Madurai Bench of Madrash High Court in Cri.O.P. (MD) No.433 of 2016. Learned APP has also relied upon the decision in the case of Vinayak Pandey v/s. State of Madhya Pradesh, in M.Cr.C.No.22489 of 2007.
As we see, the Bench then waxes eloquent to state in para 8 that:
The Court has considered rival submissions of parties and perused the documents placed on record. The FIR came to be registered for offence under Sections 143, 147, 148, 149, 152, 153, 224, 225, 186, 332, 353, 395, 397, 427 and 504 of the Indian Penal Code, under Section 135 of the GP Act and under Section 12 of the Gambling Act, naming five persons as an accused, whereas the applicant is admittedly not named as an accused.
The applicant who is aged 17 years has submitted that he has no connection with the offence, but the apprehension of being implicated falsely in the offence is on account of his previous quarrel with the accused No.1 in connection with the pet dog and therefore, during the course of investigation there is likelihood of accused No.1 and/or other co-accused persons naming the applicant as an accused in the offence subjecting the applicant to the offence. The applicant has no criminal history and has no previous antecedents. The accused persons who are named in the FIR have been enlarged on regular bail by an order dated 23.03.2021 passed in Criminal Misc. Application No.935 of 2021.
As it turned out, the Bench then states in para 8.1 that:
The applicant had filed an application for anticipatory bail bing Criminal Misc. Application No.1050 of 2021 before the 8th Additional District and Sessions Judge, Ahmedabad (Rural) which came to be dismissed by holding that the application for anticipatory bail under Section 438 of the Code is not maintainable. While doing so, finding is given in para-5 by relying upon the decision in the case of Satyendra Sharma v/s. State of Madhya Pradesh, reported in 2014(2) MPLJ (Cri) 374, where according to the Sessions Court the issue was dealt with regarding maintainability of bail of a juvenile and such application cannot be entertained by the High Court or Court of Sessions by applying the provisions contained under Section 6(2) of the Act, 2015. Section 6(2) of the Act provides placement of persons, who committed and offence, when person below the age of 18 years. Sub-Section provides for when such person is not released on bail by the Board shall be placed in a place of safety during the process of inquiry.
However, in the order nothing is discussed as to in what manner Section 6(2) of the Act, 2015 is attracted. It appears that the judgment in the case of Satyendra Sharma (Supra) was pronounced when the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short the Act, 2000) was prevailing and at that time Section 6(2) of the Act, 2000 provides for the powers conferred on the Board by or under this Act was also exercised by High Court and Court of Sessions when the proceedings come before them in appeal, revision or otherwise. However, the Act, 2000 is now substituted by the Act, 2015 and under Section 111 of the Act, 2015, the Act, 2000 stands repealed. This aspect appears to have escaped the attention of the Sessions Court while dealing with the present case.
Most significantly, the Bench then states what forms the cornerstone of this notable judgment in para 20 that:
Considering the aforesaid sets of provisions where there is expressed bar of application of Section 438 of the Code to aforementioned Special Acts, this Court is of the opinion that there is no expressed bar of application of Section 438 of the Code to the children in conflict with law covered by the Act, 2015 and in absence of expressed bar of application of Section 438 of the Code, there is no reason to imply such bar more particularly in the facts of the present case where the applicant who is juvenile is not even named as an accused and has raised a apprehension for being impleaded on extraneous consideration.
No less significant is what is then stated in para 21 that:
The issue may arise when the anticipatory bail is granted, the child in conflict with law will still be subjected to provisions of Section 12 of the Act, 2015. Reliance placed by the learned APP upon the decision of the Madurai Bench of Madras High Court in the case of Suriya v/s. State of Tamilnadu (Supra) referred to Sections 6 and 12 of the Act, 2000. Relevant paras-8 and 9 read as under:-
8. A conjoint reading of Sections 6 and 12 of the Act would reveal that to deal with all the proceedings including bail, etc, in respect of juvenile, a Juvenile Board is the appropriate authority and it has been constituted exclusively for this purpose and no Court, either Sessions Court or High Court has jurisdiction to deal with the proceedings pertaining to a juvenile. Therefore, it is clear that the bail application of a juvenile can be entertained by the Board only when he is arrested or detained or appears or is brought before the Board, otherwise the application cannot be entertained.
If the juvenile is arrested or detained or appears or is brought before the Board, then certainly bail application will be filed under Section 12 and the same has to be decided by the Board only, but not by the High Court or Court of Sessions. However, Section 52 of the Act gives right to a juvenile, who is accused of a bailable or non-bailable offence, if he has been refused bail, to file an appeal under Section 52 of the Act within 30 days from the date of such order or after the expiry of the said period if prevented by sufficient cause to prefer an appeal within time, to the Court of Sessions, and in case the appeal fails, he can file a revision against the appellate order before the High Court in accordance with Section 53 of the Act. Therefore, the Act specifically envisages that the powers conferred on the Board by or under this Act can be exercised by the High Court and the Court of Sessions, only when the proceedings comes before them in appeal, revision or otherwise.
9. Such being the legal position if any bail application filed by a juvenile is entertained by the high court and rejected certainly the juvenile would be left with no option since he would have been deprived of the right of appeal before the Court of Sessions and revision before the High Court. In fact, no provisions of the Act or in the Code of Criminal Procedure enables the Juvenile to move an application for anticipatory bail either before the Court of Sessions or High Court or even before the Board which has been exclusively constituted for the purpose of dealing with the proceedings pertaining to a juvenile.
In the above context, the Bench then holds significantly in para 22 that:
The aforesaid view of the Madurai bench of Madras High Court considers a point that in case of rejection of any bail application by the juvenile by the High Court would render the juvenile remedy less. In this regard it is pertinent to observe that for any child in conflict with law necessary procedure to be adopted as prescribed under section 12 of the act 2015 and therefore even where the application under section 438 of the code is decided in any which way
the protection of section 12 of the act 2015 will always be available.
Truth be told, it is then stated in para 22.1 that:
The question with regards to fruitfulness to invoke Section 438 of the Code for the child in conflict with law may arise, in other words, even of invoking Section 438 of the Code no useful purpose will be served as the child in conflict with law have to undergo the process of Section 12 of the Act, 2015. The parameters of practical usage and/or application of parameters cannot lead to inferring of bar of application of a provision, Section 438 of the Code in the present case.
Frankly speaking the Bench then rightly holds in para 25 that:
In the case of Vinayak Pande (Supra) while reproducing the finding given by the Division Bench of the Madras High Court in the case of K Vignesh v/s State, reported in Criminal Original Petition No. 22 361 of 2015 holding application filed under section 438 of the Code is not maintainable in law. The Madras High Court in the subsequent decision in the case of Kumari Shivani (Supra) has referred to the decision of the Madhya Pradesh High Court in M.Cr.C. No.
47297 of 2018 holding an application for anticipatory bail by the juvenile is maintainable and has granted an anticipatory bail. Moreover the reason for holding the anticipatory bail not maintainable was that in any case the Juvenile Justice Act provided for all the safeguards that the child in conflict with law cannot be arrested for the reasons stated here in preceding paras.
Futhermore, the bench then also adds in para 26 that:
The Court also finds that the contention raised by the applicant for his apprehension on affidavit that the accused who has axe to grind against the applicant is likely to name him as an accused to falsely implied him in the offence has not been denied in any manner either before the Sessions Court or before this Court by the Investigating Agency. The Court has also considered the fact that the other accused persons who have been named in the FIR have already been released on regular bail the applicant not being named in the FIR not having any antecedents and no role being attributed by the investigating agency thus far deserves to be enlarged on anticipatory bail.
As a consequence, the Bench then holds in para 27 that:
In the result the present application is allowed by directing that in the event of arrest of the applicant herein in connection with FIR registered at C.R. No. 111920502100 93 of 2021 before Sanand Police Station, Ahmedabad (Rural), the applicant shall be released on bail in conformity with section 12 of the Act, 2015.
- shall remain present at the concerned Board on 14.06.2021 between 11.00 AM and 02./00 PM.
- shall not directly or indirectly make any inducement threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the court or to any police officer;
- shall not obstruct or him per the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police
- shall be subjected to the conditions prescribed by the Board as per the provisions of law.
Finally, the Bench then holds in para 28 that:
At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. Rule is made is made absolute. Direct service is permitted.
Of course, the bottom-line of this notable judgment is: There is no expressed bar of application of Section 438 of the Code to the children in conflict with law covered by the Act, 2015 and in absence of expressed bar of application of section 438 of the Code there is no reason to imply such bar more particularly in the facts of the present case where the applicant who is juvenile is not even named as an accused and has raised apprehension for being impleaded on extraneous consideration.
The. Court was also of the view that for any child in conflict with law, necessary procedure to be adopted as prescribed under section 12 of the Act, 2015 and therefore, even where the application under Section 438 of the Code is decided in any which way, the protection of Section 12 of the Act, 2015 will always be available. In view of all this the court allowed the application of anticipatory bail and thus released the applicant in conformity with section 12 of the JJ Act! Very rightly so!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
