Patna High Court
Prince Kumar vs The State Of Bihar on 12 May, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.56295 of 2024
Arising Out of PS. Case No.-56 Year-2023 Thana- DHANGAI District- Bhojpur
======================================================
Prince Kumar, son of Parmatma Kumar Singh, resident Of Village-Bishen
Tola, Jagdishpur, Police Station-Jagdishpur, District-Bhojpur under
guardianship of his father Parmatma Kumar Singh, aged about 40 Years, son
of Rajendra Singh, resident of Village-Bishen Tola, Jagdishpur, Police Station
- Jagdishpur, District-Bhojpur
... ... Petitioner/s
Versus
The State Of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mrigendra Kumar, Advocate
Mr. Akash Kumar Mishra, Advocate
For the Opposite Party/s : Mr. Sanjay Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
Date : 12-05-2025
Heard the parties.
2. The petitioner is apprehending his arrest in a
case registered for the offence punishable under Section 395
of the Indian Penal Code.
3. At the very outset, learned A.P.P appearing on
behalf of the State has made objections about the
maintainability of the anticipatory bail application with
regard to the child in conflict with law (in short CICL) who
is involved in this case which is heinous in nature. He has
also argued that Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred to as J.J. Act)
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does not make any provision regarding applicability of
Section 438 Cr.P.C and Sections 10 and 12 of the Juvenile
Justice (Care and Protection of Children) Act, 2015 are
complete code in themselves. He has also argued that child
in conflict with law has no apprehension of arrest in this
case because arrest of any child in conflict with law is not
permissible under the Act, 2015.
4. Contrary to the above argument advanced on
behalf of the A.P.P, learned counsel appearing on behalf of
the petitioner has submitted that there is no such expressed
bar in the J.J Act regarding applicability of this provision
and by adopting the broader sense of the provision
enshrined in the Juvenile Justice (Care and Protection of
Children) Act, 2015, being the beneficial Act for the
juvenile, the child in conflict with law is entitled to get the
protection by invoking the provision of Anticipatory Bail
under Section 438 of Cr.P.C.
5. In order to fortify his arguments, learned
counsel has placed reliance on a judgment reported in SCC
Online All 230, decided on 24.05.2025 in the case of
Mohammad Zaid & Ors versus State of U.P.
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6. The Juvenile Justice (Care and Protection of
Children) Act, 2015 is a social welfare legislation and it
protects children from becoming criminals and provides
provision for sending the children to the rehabilitation
centers in their best interest. After going through this Act, it
appears that legislature does not intent to exclude juvenile
from justice delivery system. The goal should be always
working towards the welfare of the child.
7. Before deciding the applicability of Section 438
Cr.P.C in the case of child in conflict with law pertaining to
heinous offfence, it is essential to go through the very
objectives of the Juvenile Justice (Care and Protection of
Children) Act, 2015. The introduction of this Act reads as
follows:-
"The Juvenile Justice (Care &
Protection of Children) Act, 2015 contains
112 sections in 10 chapters. It is an Act 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-
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integration, by adopting a child-friendly
approach in the adjudication and disposal of
matters in the best interest of children and
for their rehabilitation through processes
provided, and institutions and bodies
established, hereinunder and for matters
connected therewith or incidental thereto."
8. In Pratap Singh versus State of Jharkhand,
2005(3) SCC 551, the Larger Bench of the Hon'ble Apex
Court, while dealing with J.J Act, 1996 has observed in
para 10 of its judgments:-
"10. Thus, the whole object of the
Act is to provide for the care, protection,
treatment, development and rehabilitation
of neglected delinquent juveniles. It is a
beneficial legislation aimed at to make
available the benefit of the Act to the
neglected or delinquent juveniles. It is
settled law that the interpretation of the
Statute of beneficial legislation must be to
advance the cause of legislation to the
benefit for whom it is made and not to
frustrate the intendment of the legislation."
9. From bare perusal of the entire J.J. Act, 2015, it
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clearly transpires that in Chapter-IV, the procedure in
relation to children in conflict with law has been mentioned.
In section 10, the procedure regarding apprehension of child
alleged to be in conflict with law has been prescribed and
Section 12 deals with bail to a person who is apparently a
child alleged to be in conflict with law.
10. In the Juvenile Justice (Care and Protection of
Children) Act, 2015, there is no such provision for grant of
anticipatory bail, but as per Section 10 of the Juvenile
Justice (Care and Protection of Children) Act, 2015, child in
conflict with law (CICL) may be apprehended by the police
if he has committed any heinous offence and as per Section
12, such CICL may be granted regular bail, if he fulfills the
conditions mentioned in the proviso of Section 12 of the
Juvenile Justice (Care and Protection of Children) Act,
2015. It is therefore clear that police can apprehend any
child in conflict with law. However, the regular bail may be
granted or refused to such child in conflict with law on the
basis of conditions mentioned therein.
11. Rule 8(i) of the Juvenile Justice (Care and
Protection of Children) Rules, 2016 speaks that no FIR is to
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be registered except where a heinous offences is alleged to
have been committed by a child or when such offence is
alleged to have been committed jointly with adults. Rule
8(1) of the Juvenile Justice (Care and Protection of
Children) Rules, 2016 reads as under:-
"8. Pre-Production action of
Police and other Agencies.-
"(1) No First Information Report
shall be registered except where a heinous
offence is alleged to have been committed by
the child, or when such offence is alleged to
have been committed jointly with adults. In
all other matters, the Special Juvenile Police
Unit or the Child Welfare Police Officer
shall record the information regarding the
offence alleged to have been committed by
the child in the general daily diary followed
by a social background report of the child in
Form 1 and circumstances under which the
child was apprehended, wherever
applicable, and forward it to the Board
before the first hearing:
Provided that the power to
apprehend shall only be exercised with
regard to heinous offences, unless it is in the
best interest of the child. For all other cases
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involving petty and serious offences and
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 1 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."
12. From the aforesaid provision, it appears that
the police can apprehend such child in conflict with law in
heinous offences in the best interest of the child whereas in
cases of petty and serious offences, apprehension of such
CICL is not necessary. The 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 1 to the Board and intimate the parents or
guardian of the child.
13. In the absence of any specific provision about
the applicability of anticipatory bail under Section 438
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Cr.P.C in Juvenile Justice (Care and Protection of Children)
Act, 2015, the provisions need to be interpreted on the basis
of certain principles laid down by the Hon'ble Apex Court
and other High Courts.
14. In Shilpi Mittal versus State of NCT of Delhi
and Ors reported in (2020) 2 SCC 787, the Golden Rule of
interpretation was discussed and it was held that though the
Courts cannot add or subtract the words from the Statute but
if the intention of the Legislature is clear, then the Court can
get over the inartistic or clumsy wording of the Statute. The
relevant paragraph reads thus:-
"23. The Golden Rule of Interpretation
was laid down by the House of Lords in
Grey v. Pearson (1857) 6 HLC 61, as
follows:
...I have been long and deeply
impressed with the wisdom of the rule, now,
I believe, universally adopted, at least in the
Courts of Law in Westminster Hall, that in
construing wills and indeed statutes, and all
written instruments, the grammatical and
ordinary sense of the words is to be adhered
to, unless that would lead to some absurdity,
or some repugnance or inconsistency with
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the rest of the instrument, in which case the
grammatical and ordinary sense of the
words may be modified, so as to avoid that
absurdity and inconsistency, but no
farther.....
24. The Privy Council in Salmon v.
Duncombe and Ors. (1886) 11 AC 627
stated the principle in the following terms:
"It is, however, a very serious matter to
hold that when the main object of a statute is
clear, it shall be reduced to a nullity by the
draftsman's unskillfulness or ignorance of
law. It may be necessary for a Court of
Justice to come to such a conclusion, but
their Lordships hold that nothing can justify
it except necessity or the absolute
intractability of the language used....."
15. On the anvil of the aforesaid principles, the
intention of the legislature in framing the Juvenile Justice
(Care and Protection of Children) Act, 2015 can be gathered
from general principles to be followed in administration of
the act, which is prescribed in Section 3 of Chapter-II of the
Act. Although sixteen fundamental principles have been
enumerated in the Act, 2015, amongest which principle
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nos. I, II, III, IV, VI, VIII, X and XVI are most essential for
deciding the issue which reads as under:-
"(ⅰ) Principle of presumption of
innocence: Any child shall be presumed to
be an innocent of any mala fide or criminal
intent up to the age of eighteen years.
(ii) Principle of dignity and worth: All
human beings shall be treated with equal
dignity and rights.
(iii) Principle of participation: Every
child shall have a right to be heard and to
participate in all processes and decisions
affecting his interest and the childs views
shall be taken into consideration with due
regard to the age and maturity of the child.
(iv) Principle of best interest. All
decisions regarding the child shall be based
on the primary consideration that they are
in the best interest of the child and to help
the child to develop full potential.
(vi) Principle of safety: All measures
shall be taken to ensure that the child is
safe and is not subjected to any harm,
abuse or maltreatment while in contact with
the care and protection system, and
thereafter.
(viii) Principle of non-stigmatising
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semantics: Adversarial or accusatory
words are not to be used in the processes
pertaining to a child.
(x) Principle of equality and non-
discrimination: There shall be no
discrimination against a child on any
grounds including sex, caste, ethnicity,
place of birth, disability and equality of
access, opportunity and treatment shall be
provided to every child.
(xvi) Principles of natural justice:
Basic procedural standards of fairness
shall be adhered to, including the right to a
fair hearing, rule against bias and the right
to review, by all persons or bodies, acting
in a judicial capacity under this Act."
16. Amongst the above, first principle is principle
of presumption of innocence. As per act, any child shall be
presumed to be innocent of any mala fide or criminal intent
up to the age of 18 years. Any CICL can be framed in any
heinous offfence with mala fide intention and grudge by
opposite party which can only be protected by the
application of granting Anticipatory bail application.
Secondly, the principle of dignity and worth is also
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significant with respect to CICL because if any CICL is
apprehended for heinous offence with a mala fide intention
and without reasonable cause, his dignity will come at
stake. Principle of best interest will also apply with regard
to CICL involved in heinous offence because application of
anticipatory bail in such cases will protect the best interest
of the CICL and will also help him to develop his full
potential. In this way, principle of safety and non-stigmatic
semantics will also apply as his apprehension is often
considered as stigmated in the society. Thus, by application
of ABA in cases of CICL would resonate the spirits of this
principle.
17. Lastly, principle of natural justice also
demands the applicability of anticipatory bail application to
the CICL.
18. So, after going through the above general
principles of the Juvenile Justice (Care and Protection of
Children) Act, 2015 enumerated in Section 3 of the Act, it
appears that the applicability of anticipatory bail application
is more convincing than to non-applicability of anticipatory
bail application.
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19. The main thrust of argument of the learned
A.P.P in this case is that since CICL cannot be arrested, the
provision of Section 438 Cr. PC will not be applicable in
case of the petitioner. He has also argued that the provision
of Section 438 Cr.P.C is only applicable to a person who is
apprehending his arrest but since there is no provision for
arrest of a child in conflict with law, he cannot explore the
said remedy. He also submits that as soon as the person is
apprehended and brought to the knowledge of the said
authority that said person is a juvenile or it appears to the
said authority that said person is juvenile, they would
immediately proceed to forward to the said person to a
Child Care Home and not arrest him or detain him at the
Police Station.
20. Learned A.P.P has also drawn the attention of
this Court towards Section 1(4) of the Juvenile Justice (Care
and Protection of Children) Act, 2015 which starts with
none obstante clause excluding the operation of any other
law.
21. To buttress his arguments, learned A.P.P has
cited the decision of learned Single Judge of the Allahabad
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High Court in the case of Shahaab Ali (Minor) Versus State
of U.P. The aforesaid judgment of Shahaab Ali (Minor) was
subsequently referred to the Larger Bench which was heard
in the case of Mohammad Zaid versus State of U.P and
others and other analogous cases wherein the principles laid
down by the learned Single Judge in the case of Shahaab
Ali (Minor) was over-ruled. Para 11 and 12 of the judgment
reads as under:-
"11. After having heard learned
counsels for the parties and learned Amicus
Curiae at length, the situation which arises
is that a child in conflict with law cannot be
left to be remedy-less till the time of his
apprehension by the concerned authority or
arrest whatever the case may be. Although
Section 1(4) of the Act 2015 starts with a
non-obstante clause excluding the operation
of any act and specifically providing that
the provisions of this Act shall apply to all
matters concerning the child in need, care
and protection and child in conflict with
law, but does not, in any manner, bar the
power of the Court to grant anticipatory
bail under Section 438 Cr.P.C. Non-obstante
clause although operates in the areas
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covered in sub-section (i) and (ii) of Section
1 of Act 2015, under sub-section (i)
apprehension, detention, prosecution,
penalty or imprisonment, rehabilitation and
social integration of child in conflict with
law is provided. In so far as in a stage prior
to the apprehension or arrest by a child in
conflict with law is concerned, the Act is
silent The Parliament has not overridden
the provision of Section 438 Cr.P.C. There is
no provision in Section I and Section 4 or
elsewhere in the Act 2015 making Section
438 Cr.P.C. inapplicable for offences
punishable under the Act 2015. The liberty
of a citizen has to be regulated by law. It
has to be procedural, substantial, just and
reasonable under Article 21 of the
Constitution of India. There is no bar for
grant of anticipatory bail to a child in
conflict with law or a juvenile, although
Section 1(4) of the Act 2015 begins with a
non-obstante clause which operates in
relation to Code of Criminal Procedure, but
the same does not, in any manner, is
inconsistent with regard to the provisions of
anticipatory bail under Section 438 Cr.P.C.
for a juvenile or a child in conflict with law
although it is a discretion of the court
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concerned either to grant anticipatory bail
or not, but the remedy of an anticipatory
bail cannot be taken away for a juvenile or
a child in conflict with law, if there is no
specific bar to it. The Legislature has not
expressly barred the application under
Section 438 Cr. P.C. with regard to a
juvenile or a child in conflict with law. If the
Legislature had an intention to override the
provision of Section 438 Cr.P.C. then the
same should have been expressly stated that
Section 438 Cr.P.C. shall not apply to a
juvenile or a child in conflict with law.
There is, however, no such provision in the
Code. In these circumstances, therefore, the
Legislature in its wisdom left it to the Court
to bring about a harmonious construction of
the two statutes, so that the two may work
and stand together. This is also fully in
consonance with the principles laid down in
construing the non-obstante clause in the
statute. It would be relevant to point out that
there are certain statues which expressly
excluded the provisions of Section 438
Cr.P.C. The exclusion of access to
anticipatory bail as a remedy impinges upon
human liberty. A child enjoys equal rights
with other persons. Therefore, it would be in
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violation of all the principles and provisions
to deny an opportunity to exercise right of
preferring an application under Section 438
Cr.P.C.
12. If the legislature wanted not to
extend the benefit of anticipatory bail to a
child in conflict with law, the same would
have been specifically barred to be in
operation for such person.
In Section 18 of The Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, an absolute bar on the
application of Section 438 Cr.P.C. has been
created. Section 18 of the said act reads as
under:
"18. Section 438 of the Code not to
apply to persons committing an offence
under the Act - Nothing in section 438 of
the Code shall apply in relation to any case
involving the arrest of any person on an
accusation of having committed an offence
under this Act.
13. Like it, no bar in the Act 2015 has
been created for the application of Section
438 Cr.P.C in it"
22. So far as the argument of learned A.P.P
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regarding the absence of provision of arrest is concerned,
certainly it is not mentioned in the J.J Act, 2015. The word
"arrest" has also not been defined in the J.J Act, 2015 nor in
the Cr.P.C but how arrest is to be made is provided in the
Cr.P.C. The word "apprehension" and "detention" find place
in Section 12 of the J.J Act, 2015 itself which pertains to
bail of a person who is apparently a child in conflict with
law and is alleged to have committed a bailable or non-
bailable offence. The meaning and import of the word
"apprehension" "detention" "custody" and "arrest" have
been fully described by a Division Bench of Punjab &
Haryana High Court in case No. CRM-M-17856-2020 and
other analogous cases reported in Neutral Citation No:=
20242024:PHC:076452-DB. The relevant paragraphs of the
said judgment reads as under:-
"What is Apprehension; Detention;
Custody and Arrest:
27. In principle, the question which is
to be kept in mind with which we are dealing
at this stage is the word "apprehension" at
the point of time before the CICL has to be
produced before the Board. The word
'apprehend' as such is a feel of fear that
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something bad may happen. Apprehend also
means to catch somebody though the strict
terminology of arrest may not be used. The
usage of same is finally to apprehend the
person which would be an aim to catch
someone who took the law in his hands or
who does something wrong. Normal term of
apprehension is pertaining to arrest
someone or detain someone who could be a
suspect near the scene of the crime. The
apprehension may be for a second or minute
or hours, whereas the detention can be for a
longer period which can be specified. In
contradiction with the criminal law, if
someone is to be taken into custody, it could
be by way of arrest with legal warrant or
authority. As per the Cambridge dictionary,
'apprehend' means to catch and arrest
someone who has not obeyed the law.
28. The word "apprehension", as per
the Blacks Law Dictionary, is:-
(i) seizure in the name of law; arrest,
apprehension of a criminal;
(ii) Perception; comprehension, belief:
the tort of assault requires apprehension by
the plaintiff of imminent contact.
(iii) Fear and anxiety about the future
especially about dealing with an unpleasant
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person or as difficult situation."
29. As per Collins Dictionary, the word
"apprehension" is also defined as the act of
capturing or arresting whereas as per the
Cambridge Dictionary, it would mean to
catch or arrest someone who has evaded the
law. Apprehension is, thus, an action that
describes seizing, capturing or arresting a
person and is to be seen in the context of
police intervention and a situation where an
alleged criminal is captured and taken away
by Law Enforcement Agencies. The term
"detention", as per Black's Law Dictionary
reads thus:-
"A person held in custody, confined or
delayed by an authority, such as a law
enforcement or government; a person held
indefinitely without trial, especially for
political reasons.
30. Thus, it is an act of holding in
custody, or confinement for a short period
and amounts to captivity or incarceration.
31. The term arrest has not been
defined in Cr.P.C. or in IPC though how
arrest is to be made is referred to in Section
41. However, it is derived from a french
word 'arrater' which means to stop or stay
and signifies a restraint of a person. The
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niceties of the word 'custody' and 'arrest'
and that they are not synonymous words was
also examined by the Apex Court in State of
Haryana and others vs. Dinesh Kumar,
(2008) 3 SCC 222. It was held that it is true
that in every arrest there is a custody not not
vice-versa and custody as such materializes
into an arrest. Resultantly, it was held that
mere surrender as such in Court for grant of
bail may not be arrest as such but would be
judicial custody. In Directorate of
Enforcement vs. Deepak Mahajan, (1994) 3
SCC 440, it was held that if the two terms
are interpreted as synonymous, it would be
an ultra legalistic interpretation and if
accepted and adopted would lead to
startling anomaly and resulting in serious
consequences. Thus, if noticed from this
aspect, it would be apparent that if a person
is to be apprehended and to be produced
before Court, he but has to be in custody of
an officer since apprehend means seizing or
taking hold of a man. This power is only
associated along with the power to
investigate as laid down in Bhavesh Jayanti
Lakhani vs. State of Maharashtra and
others, (2009) 9 SCC 551. It is not disputed
that the moment a juvenile is apprehended,
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he/she would necessarily has to be produced
before the Juvenile Justice Board and, thus,
detained. Therefore, the custody of the
person being with the police officials would
amount to a detention or almost akin to
arrest but though not formally provided
under the Act with a definite purpose.
32. In contrast, the condition which
would give the cause of action to invoke the
provisions under Section 438 Cr.P.C. would
be where a person has reason to believe that
he may be arrested on accusation of having
committed a non-bailable offence.
33. Counsel also laid stress upon the
fact that the word "apprehension", if
translated as such in vernacular, amounts to
"girftaar", which would pari materia to
bring it at par with the word "arrest" as
provided for in Section 438 Cr.P.C. and if
Hindi translation of the Act is to be seen, the
word "apprehension" has also been
translated as "girftaar". Thus, for all
practical purposes, there is an overlap as
such and the benefit has to flow to the
juvenile keeping in view of the fact that it is
a beneficial piece of legislation which has
time and again been upheld by the Apex
Court while dealing with various provisions
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of the Act and also the earlier enactments
which were holding the field at that point of
time.
34. In fact, the word 'apprehend' as
such has a larger meaning than arrest which
can be at the initial stage before a formal
stage of arrest is made. It is in such
circumstances, the Act provides protection to
a juvenile from such restraint being put upon
him in the form of any preventive detention
or from any joint proceedings of a child to
be in conflict with law."
23. After going through the above
findings/observations of the Division Bench, it becomes
clear that the arguments made by the learned A.P.P is not
sustainable and on this score, the CICL cannot be debarred
from the opportunity of filing anticipatory bail application
under Section 438 of the Cr.P.C.
24. The next argument advanced by the learned
A.P.P against the applicability of Section 438 Cr.P.C with
respect to CICL is on the basis of provision mentioned in
Sections 10 and 12 of the Juvenile Justice (Care and
Protection of Children) Act, 2015. So far as this argument is
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concerned, it appears to be not acceptable because Section
10 and 12 of the J.J. Act, 2015 operate after CICL is
apprehended. So, it clearly means that above Sections
referred to post-apprehension stage and it does not refer to
pre-apprehension stage while Section 438 Cr.P.C applies in
pre-apprehension stage. Therefore, they cannot be in
conflict with or contrary to the provisions of Section 438
Cr.P.C.
25. In this context, some relevant paragraphs are
required to be quoted as decided by the Division Bench in
the case of Mohammad Zaid versus State of U.P and others.
"20. The argument that the Act 2015
does not make provision in the nature of
Section 438 Cr.P.C. and that Sections 10
and 12 of the Act 2015 are complete Code
in themselves; is also not acceptable.
Sections 10 and 12 of the Act 2015 operate
"after" a child alleged to be in conflict with
law is apprehended. Thus, they refer to
"post" apprehension stage. They do not
refer to "pre" apprehension stage.
Therefore, they cannot be in conflict with
the provisions of Section 438 Cr.P.C. The
non-obstante clause used in Section 12
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operates only when there is a conflict
between the provisions of the Cr.P.C. and
the provisions of Section 12 of the Act 2015.
Since there is no conflict between the
provisions of Section 438 of the Cr.P.C. and
Section 10 or 12 of the Act 2015, therefore,
availability of right under Section 438
Cr.P.C. is not taken away to the detriment of
a child. It in no manner creates an ouster
for the application of Section 438 Cr.PC.
21. A non-obstante clause is added to a
provision in order to uphold its
enforceability over another provision that is
contradictory to it. It is well settled that the
non-obstante clause has overriding effect
only in case of inconsistency. (Reference:
Ajoy Kumar Banerjee Vs. Union of India:
(1984) 3 SCC 127, Chief Information
Commissioner Vs. High Court of Gujarat:
(2020) 4 SCC 702).
22. The non-obstante clause is in Sub-
Section (4) of Section 1 and in Section 12 of
the Act 2015. The same would come into
play only if there is inconsistency in the
provisions. That would only mean that in
case of inconsistency alone, this provision
under the Act 2015 would prevail. The Act
2015, as mentioned earlier, is enacted as a
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beneficial legislation and, therefore, if a
child under the Act 2015 has any right
under the general law, it cannot be taken
away to the child's detriment by relying on
these non-obstante clauses; particularly
when there is no inconsistency between the
Act 2015 and the provisions of Section 438
Cr.P.C.
23. In Section 5 Cr.P.C., it is stated that
the Cr.P.C. shall not affect any special form
of procedure prescribed by any other law
for the time being in force.
24. This Court, thus, comes to the
conclusion that a "child" or a "child in
conflict with law" as per the Act 2015 can
file an application for anticipatory bail
under Section 438 of the Criminal
Procedure Code, 1973 and the same would
be maintainable. Since there is no bar under
Section 438 Cr.P.C. restricting its
application in so far a child in conflict with
law is concerned, the same would be fully
applicable. Further, since there is no bar for
its applicability therein, the same would
thus be applicable for a child in conflict
with law as he cannot be left remedy-less till
the time of his apprehension by the
concerned authority or arrest whatever the
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case may be The Legislature has not barred
the application of Section 438 Cr. P.C while
legislating the Act 2015. Even the
fundamental right of a child in conflict with
law would get infringed if he is not given
equal treatment in so far as the right for
anticipatory bail is concerned. The same
would apply to him subject to inbuilt
restrictions in Section 438 Cr. P.C."
26. In this context, the Division Bench of High
Court of Chhattisgarh at Bilaspur in the case of Sudhir
Sharma versus State of Chhattisgarh, reported in 2017 SCC
Online Chh 15564 : (2017) 3 CGLJ 405 (DB) has observed
thus:-
"38. Applying the aforesaid principles
applicable in the matter of interpretation of
non obstante clause, if the scheme of Act of
2015 in general and the provisions relating
to grant of post arrest ball as contained in
Section 12 of the Act of 2015 in particular,
having non obstante clause to override the
provisions of the Code of Criminal
Procedure, 1973, generally with the
provisions of general applications of Section
4 of the Code of Criminal Procedure, 1973,
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the legislative Intention does not appear to
altogether exclude provisions of the Code of
Criminal Procedure, 1973 in relation to
provisions contained in Chapter XXXIII
relating to bails and bonds. Provisions
relating to bails and bonds contained in the
Code of Criminal Procedure, 1973 would be
rendered inapplicable only to the extent that
they are inconsistent with the provisions of
grant of bail contained in the Act of 2015.
There is no warrant for conclusion that non
obstante clause contained in Section 12 of
the Act of 2015 completely excludes the
availability of remedy of applying for grant
of anticipatory bail by a CICL, who is
apprehending his arrest on the accusation of
commission of any offence. The only
provision for grant of ball as contained
under Section 12 of the Act of 2015, which
deals with application for grant of ball by a
CICL applies, when he is apprehended or
detained by the police or appears or brought
before the Board on the allegation of having
committed a bailable or non-bailable
offences. The statutory scheme of Section 12
mandates grant of ball to a CICL by use of
word "shall" unless there appears
reasonable grounds for believing that the
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release is likely to bring the CICL in
association with known criminal or to
expose such person to mental, physical or
psychological danger or his release would
defeat the ends of justice. The provision, in
fact, deals with a case of child differently
from any other person who is not a child.
Unless the aforesaid three exceptional
grounds are made out for rejection of
application for grant of bail, CICL has to be
granted bail irrespective of nature and
gravity of allegations against him. We fail to
see how the beneficial provision for grant of
bail to CICL could be interpreted to the utter
prejudice of a CICL to say that he would not
be entitled to say that important statutory
scheme of seeking anticipatory bail provided
under Section 438 of the Code of Criminal
Procedure, 1973 is not available to him. On
rational construction of the non obstante
clause in Section 12, it only seeks to put a
CICL in a better position as compared to
any other person who is not a CICL by
providing that ordinarily a CICL has to be
granted bail and it could be rejected upon
existence of three specified grounds
exhaustively enumerated in the provision
Itself. There is no justification for giving non
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obstante of such a wide amplitude as to
exclude the statutory remedy of applying for
anticipatory bail by a CICL. The Act of 2015
is completely silent with regard to
anticipatory bail. Therefore, in view of the
provision contained in Section 4 of the Code
of Criminal Procedure, 1973, the provision
relating to grant of anticipatory bail
contained in Section 438 of the Code of
Criminal Procedure, 1973 will continue to
have application and will be available to
CICL, who is apprehending arrest."
27. As per Rule-8 of J.J Act, 2015, the F.I.R can be
registered only when the CICL alleged to have committed a
heinous offence or when such offence is alleged to have
committed jointly with adults. So, in this circumstance,
when the co-accused being adult in a similar case may file
anticipatory bail application with respect to same offence,
how it is justified to debar the CICL from filing anticipatory
bail application simply because he is below the age of 18
years for few days, weeks, months or a year. If CICL is not
given an opportunity to invoke the provision under Section
438 Cr.P.C it amounts to infringement of his fundamental
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rights of equality before law and protection of life and
personal liberty granted under Articles 14 and 21 of the
Constitution of India. Hence, on this score also, the CICL is
entitled to have a liberty to file the anticipatory bail
application.
28. Further, there is no such provision in J.J Act,
2015 with respect to anticipatory bail to a CICL in heinous
offence which can be construed contrary to the provisions
of Section 5 of the Cr.P.C. So, on this score also, the CICL
cannot be debarred to invoke the provision under Section
438 Cr.P.C in heinous offence.
29. At this juncture, it is germane to quote the
supportive view of Bombay High Court(DB) expressed in
the case of Raman and Another versus State of Maharashtra
reported in (2022) 2 AIR Bom R (Cri) 914. The relevant
paragraphs of the judgment reads as under:-
"39. Section 5 of the Cr. P.C. is also
relevant in this context, which reads thus:
"5. Saving.- Nothing contained in this
Code shall, in the absence of a specific
provision to the contrary, affect any special
or local law for the time being in force, or
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any special jurisdiction or power conferred,
or any special form of procedure prescribed,
by any other law for the time being in force."
40. his section makes it very clear that
the Cr. P.C. shall not affect any special form
of procedure prescribed by any other law for
the time being in force. If the JJ Act was to
provide for procedure in the nature of
Section 438 of the Cr. P.C., that procedure
would have overridden the Cr. P.C. But if no
special form of procedure is prescribed in
the nature of Section 438 of the Cr. P.C.,
then the provisions of the Cr. P.C. shall
operate. Only when there is a special
procedure, which is departure from the
procedure laid down in the Cr. P.C. for a
particular remedy, then only the special
procedure would operate to the exclusion of
the Cr. P.C. But in the JJ Act there is no
special provision, which could operate in the
field of Section 438 of the Cr. P.C. and
therefore, the provisions of Section 438 of
the Cr. P.C. can operate in case of child in
conflict with law.
As is provided under Section 8 (2) of
the 33 Act, the High Court and the
Children's Court can exercise the same
powers, which can be exercised by the
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Board. These powers can be exercised in
appeal, revision or otherwise. The
proceedings under Section 438 of the Cr.
P.C. are covered under these powers.
Because these powers are also available
besides proceedings of appeal or revision.
Therefore, when deciding the anticipatory
bail application, the High Court or the
Sessions Court will have to give due
importance to the considerations mentioned
in the proviso to sub-Section (1) of Section
12 of the 3) Act. However, that proviso does
not make the Section 438 of the Cr. P.C.
Inconsistent with Sections 10 and 12 of the
JJ Act. The inconsistency between Cr. P.C.
and these two provisions is in respect of
Sections 167 and 437 of the Cr. P.C. mainly
because the child will have to be produced
before the Board and not before any other
Court. In those cases, the special procedure
provided under Sections 10 and 12 of the JJ
Act will have to be followed. But Section 438
of the Cr. P.C. is enacted for a different
purpose as discussed earlier and there is no
inconsistency.
41. As is provided under Section 8 (2)
of the JJ Act, the High Court and the
Children's Court can exercise the same
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powers, which can be exercised by the
Board. These powers can be exercised in
appeal, revision or otherwise. The
proceedings under Section 438 of the Cr.
P.C. are covered under these powers.
Because these powers are also available
besides proceedings of appeal or revision.
Therefore, when deciding the anticipatory
bail application, the High Court or the
Sessions Court will have to give due
importance to the considerations mentioned
in the proviso to sub-Section (1) of Section
12 of the JJ Act. However, that proviso does
not make the Section 438 of the Cr. P.C.
inconsistent with Sections 10 and 12 of the
JJ Act. The inconsistency between Cr. P.C.
and these two provisions is in respect of
Sections 167 and 437 of the Cr. P.C. mainly
because the child will have to be produced
before the Board and not before any other
Court. In those cases, the special procedure
provided under Sections 10 and 12 of the JJ
Act will have to be followed. But Section 438
of the Cr. P.C. is enacted for a different
purpose as discussed earlier and there is no
inconsistency.
42. As mentioned earlier, if accusations
are made against a child with all intention to
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cause humiliation and harassment, then the
right to prefer application under Section 438
of the Cr. P.C. should be available to a child.
Section 12 of the JJ Act provides for steps to
be taken for production before the Juvenile
Justice Board after apprehension. There is a
possibility that the child can be detained for
some period. However, in cases where
accusations are false or are made with
oblique motive, then it would be travesty of
justice to keep the child away from the
protection of his parents and from his usual
environment and shelter. There is no reason
why he should be deprived of such
protection even for a single minute. At that
stage application under Section 438 of the
Cr. P.C. is the effective remedy available to
such child.
43. Based on this discussion, we
answer the reference as under:
"A 'child' and a "child in conflict with
law" as defined under the Juvenile Justice
(Care and Protection of Children) Act,
2015 can file an application under Section
438 of the Criminal Procedure Code,
1973."
30. Learned A.P.P also argued that now a days,
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particularly in the State of Bihar, the CICL, mostly from the
age group of 15-18 are becoming the prey of the veteran
gangs of criminals and they after giving allurement of some
money, engaged them in crimes. At the behest of the veteran
criminals, they are frequently committing crimes. So, if the
anticipatory bail is allowed to such CICL, they will become
veteran criminal in future after coming in association with
other criminals.
31. Though there is substance in the aforesaid
arguments and this Court is not oblivious of the rampant
involvement of CICL in heinous offences, but only due to
this reason, a CICL cannot be prevented to invoke the
provision of Section 438 Cr. P.C, as the chances of mala
fide implication of a CICL cannot be ruled out completely.
Therefore, in exceptional circumstances the CICL requires
the protection from apprehension under Section 438 Cr.P.C,
specially when he is not involved in any crime since before.
32. Apart from that, this Court is of the view that
proviso of Section 12 of the Act of 2015 must be applied in
its strict sense while considering the anticipatory bail
application of CICL. In this regard, it is essential to quote
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Section 12(i) of Juvenile Justice (Care and Protection of
Children) Act, 2015.
"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 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
so 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 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."
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33. So, if the CICL is found that he is in
association with any known criminal which would expose
the CICL to moral, physical or psychological danger and if
the release of CICL would defeat the ends of justice, the
anticipatory bail cannot be allowed in favour of CICL as
enshrined under proviso 12(1) of the Juvenile Justice (Care
and Protection of Children) Act, 2015 for consideration of
regular bail. All these facts can be well ascertained on the
basis of S.B.R(Form-I), SIR(Form-VI) and report of
psychologist after granting interim order under Section
438(1) of Cr.P.C.
34. After going through the forgoing discussions
and the careful perusal of the various judgments of Hon'ble
Apex Court as well as Hon'ble Hihg Courts, it appears that
Juvenile Justice (Care and Protection of Children) Act, 2015
is special and beneficial legislation.
35. Therefore, in the light of discussions made in
preceding paragraphs and interpretation attached thereto, it
cannot be accepted that mere silence in J.J Act about the
applicability of provisions of Section 438 of Cr.P.C will
operate to preclude the CICL from the benefit of
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anticipatory bail.
36. Keeping in view the aforesaid facts, I am of
the considered opinion that the broader view has been laid
down by the Division Bench of Hon'ble Allahabad High
Court in deciding the case of Mohammad Zaid and others
versus State of UP, Division Bench of Hon'ble Punjab &
Haryana High Court in deciding CRM-M-17856-2020,
Division Bench of Hon'ble Chhattisgarh High Court in
deciding the case of Sudhir Sharma versus State of
Chhattisgarh and Division Bench of Hon'ble Bombay High
Court in deciding the case of Raman and Another versus
State of Maharashtra, it would be the right way to follow
such view for proper and just decision on the point of
applicability of Section 438 Cr.P.C with respect to CICL in
heinous offence. Hence, this Court finds that provision of
Section 438 Cr.P.C is applicable to the cases with respect to
CICL concerning heinous offence.
37. Now I propose to examine the merit of this
case.
38. From perusal of the impugned order dated
03.07.2024passed by the Additional Sessions Judge-VIII, Patna High Court CR. MISC. No.56295 of 2024 dt.12-05-2025 40/41 Bhojpur at Ara, it appears that the Court has not decided the anticipatory bail application of petitioner Prince Kumar (CICL) on the basis of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Perhaps he has decided the case like an adult accused on the basis of merits of the case which is not in consonance with the provision of the Juvenile Justice (Care and Protection of Children) Act, 2015
39. Resultently, the matter is remanded to the concerned District & Additional Sessions Judge/Children Court, who after obtaining Social Background Report [Rules8(1),8(5)] (Form-I) and Social Investigation Report prescribed in Form-VI of J.J Rules, 2016 along with the report of the psychologist and after conclusion of the preliminary assessment of the Board under Section 15 of the J.J Act, 2015, will decide the anticipatory bail of the petitioner afresh at the earliest.
40. Till decision on anticipatory bail of the petitioner (CICL) by the concerned District & Additional Sessions Judge/Children Court, interim protection from the apprehension of arrest shall be granted to the Patna High Court CR. MISC. No.56295 of 2024 dt.12-05-2025 41/41 petitioner(CICL).
41. The District & Additional Sessions Judge/Children Court will not be prejudiced in any manner with the order of this Court and decide the anticipatory bail of the petitioner(CICL) on the basis of aforesaid reports, keeping in view of the relevant provisions of law.
42. The petitioner shall cooperate in the aforesaid enquiry of the Court/Board or authority. It is also made clear that if the petitioner (CICL) fails to cooperate in appearing before the Court/Board or authority, the interim protection granted to the petitioner shall discontinue.
43. Accordingly, the petition stands disposed of.
(S. B. Pd. Singh, J) Shageer/-
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