Allahabad High Court
Shahaab Ali (Miner) And Another vs State Of U.P. on 20 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 1112
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 81 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 597 of 2020 Applicant :- Shahaab Ali (Minor) And Another Opposite Party :- State of U.P. Counsel for Applicant :- Vinay Kumar Upadhyay,Pramod Bhardwaj Counsel for Opposite Party :- G.A. Hon'ble Yashwant Varma, J.
Heard learned counsel for the applicants, Sri Vikas Sahai learned A.G.A. for the State and perused the record.
The applicants who are minors have petitioned this Court through their natural guardian seeking anticipatory bail in Case Crime No. 305 of 2019 under Sections 420, 467, 468, 471, 120B, 504 and 506 IPC, Police Station Tanda, District Rampur.
The principal question which has been raised is whether a petition under Section 438 of the Criminal Procedure Code at the behest of a child in conflict with law would be maintainable. According to Sri Vikas Sahai, the learned A.G.A., the application under Section 438 of the Criminal Procedure Code at the behest of a minor is not maintainable since the apprehension of arrest is misplaced. According to the learned A.G.A. the Juvenile Justice (Care and Protection of Children) Act 20151 and more particularly Sections 10 and 12 thereof put in place a detailed procedure to deal with the investigation and trial of cognizable offences that may be committed by minors. It was submitted that in terms of Section 10 of the 2015 Act, a child cannot be arrested and since he is only apprehended and placed in the charge of the Special Juvenile Police Unit2 or the designated Child Welfare Police Officer3 for production before the concerned Juvenile Justice Board4 within 24 hours of such apprehension, the jurisdiction of the Court under Section 438 of the Criminal Procedure Code is not liable to be invoked. The Court notes that different High Courts of the country have taken a conflicting view on the maintainability of a petition for anticipatory bail at the behest of a minor. There is however no authoritative pronouncement of this Court on the question that is raised. In view thereof and since the issue is likely to arise in future also, it would be appropriate to clarify the legal position. The position with respect to the maintainability of a petition in light of the inherent attributes of the remedy provided by Section 438 would have to be decided bearing in mind the twin scenarios in which a petition for anticipatory bail by a minor may be presented before this Court. The first and obvious situation would be where the minor approaches this Court after the registration of a first information report alleging commission of a cognizable offence while the second could be where a minor apprehends arrest and detention prior to the registration of a first information report. The Court proposes to deal with and answer the question of maintainability with reference to the two foreseeable situations noted above.
In order to deal with the question that is raised, it would firstly be necessary to notice the provisions made in the 2015 Act as also the provisions that were engrafted and put in place in the Juvenile Justice (Care and Protection of Children) Act, 2000 Act5 which since stands repealed. Dealing firstly with the provisions contained in the 2000 enactment, it becomes pertinent to notice the provisions made in Section 1(4) thereof:
"1. [(4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law.]"
The 2000 Act envisaged the constitution of a Board in terms of Section 4 that read thus: -
"4. Juvenile Justice Board.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government may,[within a period of one year from the date of commencement of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, by notification in the Official Gazette, constitute for every district], one or more Juvenile Justice Boards for exercising the powers and discharging the duties conferred or imposed on such Boards in relation to juveniles in conflict with law under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be, and two social workers of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974), on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class and the Magistrate on the Board shall be designated as the principal Magistrate."
Section 10 of the 2000 Act was framed in the following terms: -
"10. Apprehension of juvenile in conflict with law. --(1) As soon as a juvenile in conflict with law is apprehended by police, he shall be placed under the charge of the special juvenile police unit or the designated police officer, who shall produce the juvenile before the Board without any loss of time but within a period of twenty-four hours of his apprehension excluding the time necessary for the journey, from the place where the juvenile was apprehended, to the Board:
Provided that in no case, a juvenile in conflict with law shall be placed in a police lockup or lodged in a jail.] (2) The State Government may make rules consistent with this Act,--
(i) to provide for persons through whom (including registered voluntary organisations) any juvenile in conflict with law may be produced before the Board;
(ii) to provide the manner in which such juvenile may be sent to an observation home."
The subject of bail of a juvenile was governed by the provisions of Section 12 which read thus: -
"12. Bail of juvenile. --(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety [or placed under the supervision of a Probation Officer or under the care of any fit institution of fit person] but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
(2) When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."
The commission of an offence allegedly committed by a "child in conflict with law" was to be enquired into by the Board in accordance with the procedure prescribed in Section 14. On the Board being satisfied after due enquiry that a juvenile had committed an offence, it was obliged to pass further orders as enumerated in Section 15. Section 16 of the 2000 Act injuncted the Board or the competent court from passing any sentence of death or imprisonment which may extend to imprisonment for life. It also injuncted passing of orders committing a juvenile to prison in default of payment of fine or failure to furnish security.
The 2000 Act was repealed and replaced by the 2015 enactment which came into force on 31 December 2015. The S.O.R. of the amending Act read thus:-
"Statement of Objects and Reasons.- Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Articles 39 (e) and (f), 45 and 47 further makes the State responsible for ensuring that all needs of children are met and their basic human rights are protected.
2. The United Nations Convention on the Rights of Children, ratified by India on 11 December, 1992, requires the State Parties to undertake all appropriate measures in case of a child alleged as, or accused of, violating any penal law, including (a) treatment of the child in a manner consistent with the promotion of the child's sense of dignity and worth (b) reinforcing the child's respect for the human rights and fundamental freedoms of others (c) taking into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
3. The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000 to provide for the protection of children. The Act was amended twice in 2006 and 2011 to address gaps in its implementation and make the law more child-friendly. During the course of the implementation of the Act, several issues arose such as increasing incidents of abuse of children in institutions, inadequate facilities, quality of care and rehabilitation measures in Homes, high pendency of cases, delays in adoption due to faulty and incomplete processing, lack of clarity regarding roles, responsibilities and accountability of institutions and, inadequate provisions to counter offences against children such as corporal punishment, sale of children for adoption purposes, etc. have highlighted the need to review the existing law.
4. Further, increasing cases of crimes committed by children in the age group of 16-18 years in recent years makes it evident that the current provisions and system under the Juvenile Justice (Care and Protection of Children) Act, 2000, are ill equipped to tackle child offenders in this age group. The data collected by the National Crime Records Bureau establishes that crimes by children in the age group of 16-18 years have increased especially in certain categories of heinous offences.
5. Numerous changes are required in the existing Juvenile Justice (Care and Protection of Children) Act, 2000 to address the above mentioned issues and therefore, it is proposes to repeal existing Juvenile Justice (Care and Protection of Children) Act, 2000 and re-enact a comprehensive legislation inter alia to provide for general principles of care and protection of children, procedures in case of children in need of care and protection and children in conflict with law, rehabilitation and social re-integration measures for such children, adoption of orphan, abandoned and surrendered children and offences committed against children. This legislation would thus ensure proper care, protection, development, treatment and social re-integration of children in difficult circumstance by adopting a child-friendly approach keeping in view the best interest of the child in mind.
6. The notes on clauses explain in detail the various provisions contained in the Bill.
7. The Bill seeks to achieve the above objectives."
Section 1(4) of the 2015 enactment stipulates: -
"1 (4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including --
(i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social reintegration of children in conflict with law;
(ii) procedures and decisions or orders relating to rehabilitation, adoption, reintegration, and restoration of children in need of care and protection."
The expression "child in conflict with law" is defined in Section 2(13) to mean a child who is alleged or found to have committed an offence and who has not completed 18 years of age on the date of commission of such offence. Section 4 which is in terms similar to the provisions made in the 2000 Act reads as under:-
"4. Juvenile Justice Board.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government shall, constitute for every district, one or more Juvenile Justice Boards for exercising the powers and discharging its functions relating to children in conflict with law under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least three years experience and two social workers selected in such manner as may be prescribed, of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class."
Since the answer to the question posited would turn on the provisions made in Section 10 and 12, it would be apposite to extract the two sections herein below: -
"10.Apprehension of child alleged to be in conflict with law.- (1) As soon as a child alleged to be in conflict with law is apprehended by the police, such child shall be placed under the charge of the special juvenile police unit or the designated Child Welfare Police Officer, who shall produce the child before the Board without any loss of time but within a period of twenty-four hours of apprehending the child excluding the time necessary for the journey, from the place where such child was apprehended:
Provided that in no case, a child alleged to be in conflict with law shall be placed in a police lock-up or lodged in 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.
....
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.
(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."
Section 10 places safeguards with respect to a juvenile who is alleged to have committed a cognizable offence by providing that he shall be put in the charge of the SJPU or the designated CWPO who shall be obliged to produce the child before the Board without any loss of time and in any case within 24 hours of apprehension. The authorities including the Board enjoined with undertaking an enquiry are obliged to follow the procedure as prescribed in the 2015 Act and as far as possible also to bear in mind the procedure as laid down in the Criminal Procedure Code for trial of summons cases. Section 14 prescribes the procedure to be adhered to in respect of the enquiry to be initiated in respect of a child in conflict with law. The 2015 enactment then makes special provisions with respect to preliminary assessment in enquiries in respect of heinous offences committed by a juvenile. The expression "heinous offence" has been explained in Section 2(33) to include offences for which the minimum punishment under the I.P.C. or any other law for the time being in force is imprisonment of seven years or more.
Exercising powers conferred by Section 110 of the 2015 Act, the Union Government has also framed model rules titled the Juvenile Justice (Care and Protection of Children) Model Rules 20166. Rule 8 deals with the subject of pre production action by the police and other agencies. The said rule reads thus: -
"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 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.
(2) When a child alleged to be in conflict with law is apprehended by the police, the police officer concerned shall place the child under the charge of the Special Juvenile Police Unit or the Child Welfare Police Officer, who shall immediately inform:
(i) the parents or guardian of the child that the child has been apprehended along with the address of the Board where the child will be produced and the date and time when the parents or guardian need to be present before the Board;
(ii) the Probation Officer concerned, that the child has been apprehended so as to enable him to obtain information regarding social background of the child and other material circumstances likely to be of assistance to the Board for conducting the inquiry; and
(iii) a Child Welfare Officer or a Case Worker, to accompany the Special Juvenile Police Unit or Child Welfare Police Officer while producing the child before the Board within twenty- four hours of his apprehension.
(3) The police officer apprehending a child alleged to be in conflict with law shall:
(i) not send the child to a police lock-up and not delay the child being transferred to the Child Welfare Police Officer from the nearest police station. The police officer may under sub-section (2) of section 12 of the Act send the person apprehended to an observation home only for such period till he is produced before the Board i.e. within twenty-four hours of his being apprehended and appropriate orders are obtained as per rule 9 of these rules;
(ii) not hand-cuff, chain or otherwise fetter a child and shall not use any coercion or force on the child;
(iii) inform the child promptly and directly of the charges levelled against him through his parent or guardian and if a First Information Report is registered, copy of the same shall be made available to the child or copy of the police report shall be given to the parent or guardian;
(iv) provide appropriate medical assistance, assistance of interpreter or a special educator, or any other assistance which the child may require, as the case may be;
(v) not compel the child to confess his guilt and he shall be interviewed only at the Special Juvenile Police Unit or at a child-friendly premises or at a child friendly corner in the police station, which does not give the feel of a police station or of being under custodial interrogation. The parent or guardian, may be present during the interview of the child by the police;
(vi) not ask the child to sign any statement; and
(vii) inform the District Legal Services Authority for providing free legal aid to the child.
(4) The Child Welfare Police Officer shall be in plain clothes and not in uniform.
(5) The Child Welfare Police Officer shall record the social background of the child and circumstances of apprehending in every case of alleged involvement of the child in an offence in Form 1 which shall be forwarded to the Board forthwith. For gathering the best available information, it shall be necessary upon the Special Juvenile Police Unit or the Child Welfare Police Officer to contact the parent or guardian of the child.
(6) A list of all designated Child Welfare Police Officers, Child Welfare Officers, Probation Officers, Para Legal Volunteers, District Legal Services Authorities and registered voluntary and non-governmental organisations in a district, Principal Magistrate and members of the Board, members of Special Juvenile Police Unit and Childline Services with contact details shall be prominently displayed in every police station.
(7) When the child is released in a case where apprehending of the child is not warranted, the parents or guardians or a fit person in whose custody the child alleged to be in conflict with law is placed in the best interest of the child, shall furnish an undertaking on a non-judicial paper in Form 2 to ensure their presence on the dates during inquiry or proceedings before the Board.
(8) The State Government shall maintain a panel of voluntary or non-governmental organisations or persons who are in a position to provide the services of probation, counselling, case work and also associate with the Police or Special Juvenile Police Unit or the Child Welfare Police Officer, and have the requisite expertise to assist in physical production of the child before the Board within twenty-four hours and during pendency of the proceedings and the panel of such voluntary or non-governmental organisations or persons shall be forwarded to the Board.
(9) The State Government shall provide funds to the police or Special Juvenile Police Unit or the Child Welfare Police Officer or Case Worker or person for the safety and protection of children and provision of food and basic amenities including travel cost and emergency medical care to the child apprehended or kept under their charge during the period such children are with them."
The process to be followed for production of a child is set forth in Rule 9 which is in the following terms: -
9. Production of the child alleged to be in conflict with law before the Board.-(1) When the child alleged to be in conflict with law is apprehended, he shall be produced before the Board within twenty-four hours of his being apprehended, along with a report explaining the reasons for the child being apprehended by the police.
(2) On production of the child before the Board, the Board may pass orders as deemed necessary, including sending the child to an observation home or a place of safety or a fit facility or a fit person.
(3) Where the child produced before the Board is covered under section 83 of the Act, including a child who has surrendered, the Board may, after due inquiry and being satisfied of the circumstances of the child, transfer the child to the Committee as a child in need of care and protection for necessary action, and or pass appropriate directions for rehabilitation, including orders for safe custody and protection of the child and transfer to a fit facility recognised for the purpose which shall have the capacity to provide appropriate protection, and consider transferring the child out of the district or out of the State to another State for the protection and safety of the child.
(4) Where the child alleged to be in conflict with law has not been apprehended and the information in this regard is forwarded by the police or Special Juvenile Police Unit or Child Welfare Police Officer to the Board, the Board shall require the child to appear before it at the earliest so that measures for rehabilitation, where necessary, can be initiated, though the final report may be filed subsequently.
(5) In case the Board is not sitting, the child alleged to be in conflict with law shall be produced before a single member of the Board under sub-section (2) of section 7 of the Act.
(6) In case the child alleged to be in conflict with law cannot be produced before the Board or even a single member of the Board due to child being apprehended during odd hours or distance, the child shall be kept by the Child Welfare Police Officer in the Observation Home in accordance with rule 69 D of these rules or in a fit facility and the child shall be produced before the Board thereafter, within twenty-four hours of apprehending the child.
(7) When a child is produced before an individual member of the Board, and an order is obtained, such order shall be ratified by the Board in its next meeting.
Rule 10 prescribes the procedure to be adopted by the Board post production of the child in conflict with law and stipulates:-
"10. Post-production processes by the Board.- (1) On production of the child before the Board, the report containing the social background of the child, circumstances of apprehending the child and offence alleged to have been committed by the child as provided by the officers, individuals, agencies producing the child shall be reviewed by the Board and the Board may pass such orders in relation to the child as it deems fit, including orders under sections 17 and 18 of the Act, namely:
(i) disposing of the case, if on the consideration of the documents and record submitted at the time of his first appearance, his being in conflict with law appears to be unfounded or where the child is alleged to be involved in petty offences;
(ii) referring the child to the Committee where it appears to the Board that the child is in need of care and protection;
(iii) releasing the child in the supervision or custody of fit persons or fit institutions or Probation Officers as the case may be, through an order in Form 3, with a direction to appear or present a child for an inquiry on the next date; and
(iv) directing the child to be kept in the Child Care Institution, as appropriate, if necessary, pending inquiry as per order in Form 4.
(2) In all cases of release pending inquiry, the Board shall notify the next date of hearing, not later than fifteen days of the first summary inquiry and also seek social investigation report from the Probation Officer, or in case a Probation Officer is not available the Child Welfare Officer or social worker concerned through an order in Form 5.
(3) When the child alleged to be in conflict with law, after being admitted to bail, fails to appear before the Board, on the date fixed for hearing, and no application is moved for exemption on his behalf or there is not sufficient reason for granting him exemption, the Board shall, issue to the Child Welfare Police Officer and the Person-in-charge of the Police Station directions for the production of the child.
(4) If the Child Welfare Police Officer fails to produce the child before the Board even after the issuance of the directions for production of the child, the Board shall instead of issuing process under section 82 of the Code of Criminal Procedure, 1973 pass orders as appropriate under section 26 of the Act.
(5) In cases of heinous offences alleged to have been committed by a child, who has completed the age of sixteen years, the Child Welfare Police Officer shall produce the statement of witnesses recorded by him and other documents prepared during the course of investigation within a period of one month from the date of first production of the child before the Board, a copy of which shall also be given to the child or parent or guardian of the child.
(6) In cases of petty or serious offences, the final report shall be filed before the Board at the earliest and in any case not beyond the period of two months from the date of information to the police, except in those cases where it was not reasonably known that the person involved in the offence was a child, in which case extension of time may be granted by the Board for filing the final report.
(7) When witnesses are produced for examination in an inquiry relating to a child alleged to be in conflict with law, the Board shall ensure that the inquiry is not conducted in the spirit of strict adversarial proceedings and it shall use the powers conferred by section 165 of the Indian Evidence Act, 1872 (1 of 1872) so as to interrogate the child and proceed with the presumptions in favour of the child.
(8) While examining a child alleged to be in conflict with law and recording his statement during the inquiry under section 14 of the Act, the Board shall address the child in a child-friendly manner in order to put the child at ease and to encourage him to state the facts and circumstances without any fear, not only in respect of the offence which has been alleged against the child, but also in respect of the home and social surroundings, and the influence or the offences to which the child might have been subjected to.
(9) The Board shall take into account the report containing circumstances of apprehending the child and the offence alleged to have been committed by him and the social investigation report in Form 6 prepared by the Probation Officer or the voluntary or non- governmental organisation, along with the evidence produced by the parties for arriving at a conclusion.
10 A. Preliminary assessment into heinous offences by Board.- (1) The Board shall in the first instance determine whether the child is of sixteen years of age or above; if not, it shall proceed as per provisions of section 14 of the Act.
(2) For the purpose of conducting a preliminary assessment in case of heinous offences, the Board may take the assistance of psychologists or psycho-social workers or other experts who have experience of working with children in difficult circumstances. A panel of such experts may be made available by the District Child Protection Unit, whose assistance can be taken by the Board or could be accessed independently.
(3) While making the preliminary assessment, the child shall be presumed to be innocent unless proved otherwise.
(4) Where the Board, after preliminary assessment under section 15 of the Act, passes an order that there is a need for trial of the said child as an adult, it shall assign reasons for the same and the copy of the order shall be provided to the child forthwith."
The answer to the question as framed would principally depend upon recognising the scope and essential intent underlying Section 1(4) which underscores that the provisions of the 2015 Act insofar as they relate to the subject of apprehension, detention, prosecution, penalty or imprisonment would apply in respect of a children in conflict with law notwithstanding anything contained in any other law for the time being in force. It would also be relevant to note that the provisions of Section 5 of the Criminal Procedure Code, strictly speaking, may have no application since it relates to enactments that were in force when that Code was promulgated. Undisputedly the 2015 Act is a subsequent legislation and its provisions consequently would not be effected by Section 5. However Section 4 (2) of the Criminal Procedure Code would have limited application and be recognised as governing the field in areas for which no special procedure or provision is made under the 2015 Act. What impact Section 4 (2) would ultimately have on the question that is raised shall be dealt with a little later. Having set out the relevant provisions engrafted in the 2015 Act and the Model Rules, it would be apposite to briefly recognise and underscore the nature of the safeguards that are put in place in relation to the arrest of a child in conflict with law and the enquiry which is to be undertaken by the Board.
PRE PRODUCTION STAGE Section 10 apart from enjoining the police to place the apprehended juvenile in the custody of the SJPU or the CWPO also restrains the authorities from placing the juvenile in a police lock up or jail. The provision mandates the placement of the juvenile in an observation home or place of safety till such time as he is produced before the Board. In terms of the Proviso appended to Rule 8 (1) of the Model Rules, no child is to be apprehended except in the case of commission of a heinous offense or where it is otherwise in his best interest. The Rule prescribes that no FIR shall be lodged or registered except where a heinous offense is alleged to have been committed by a child. In all other cases, the SJPU or the CWPO shall enter the information received in the General Diary, apprise the parents of the child and transmit the information along with the social background report to the Board. Rule 8 (3) reiterates the statutory restraint against transmitting the child to jail, placement of handcuffs or any other fetter, his placement in the custody of the SJPU or the CWPO and being accommodated in a welfare home till his production before the Board. It further mandates the child being apprised of the charges levelled against him and being provided with a copy of the FIR if lodged. Additionally it provides for the child being interviewed at the SJPU or a child friendly place or corner of the police station. The Rule requires the parents or the guardian to be present during the interview and also obliges the authorities to inform the District Legal Services Authority to enable it to provide legal aid to the child. The Rule prescribes that the juvenile shall not be compelled to sign any statement. After the completion of these formalities and not later than 24 hours from apprehension the child is to be produced before the concerned Board. On a reading of the aforesaid Rule and the numerous obligations and safeguards put in place it is evident that the apprehension of a child under the 2015 Act is not akin to incarceration or arrest as otherwise effected under the Criminal Procedure Code. The 2015 Act appears to put in place a comprehensive, distinct and special procedure insofar as the apprehension of a child is concerned.
POST PRODUCTION STAGE Upon being presented before the Board, the opening and foremost issue which arises is the consideration of bail. In terms of Section 12 of the 2015 Act, the Board is mandated to release the child on bail unless it forms the opinion that the child is likely to fall into the association of known criminals, the release is likely to have a negative physical, moral or psychological impact or otherwise defeat the ends of justice. Where the Board decides to refuse bail, the child is liable to be placed in an observation home till the completion of the enquiry initiated under the 2015 Act. These provisions are mirrored in Rule 9 of the Model Rules.
Upon a thoughtful consideration of the provisions noticed above, it is manifest that the 2015 Act and the Model Rules lay in place a special and overarching procedure dealing with the apprehension of a child in conflict with law. The procedure so laid in place constitutes a distinct and significant departure from the power and procedure for arrest and detention as contained in the Criminal Procedure Code. Upon a holistic consideration of the provisions engrafted in the 2015 Act and the Model Rules, it is also manifest that they construct and put in place a self contained and compendious code to deal with issues arising in relation to a child in conflict with law. They clearly and unmistakably represent the intent of the Legislature to lay in place an independent, inclusive and all embracing statutory regime to deal with the issues of arrest and enquiry of a child who is alleged to have committed a crime.
Having noticed the relevant provisions and the underlying scheme of the 2015 Act the stage is now set to consider the decisions rendered by different High Courts on the subject. Before proceeding to notice the judgments rendered and which directly deal with the question posed here, it would be relevant to note the following two decisions rendered by learned Judges of the Kerala and the Chhattisgarh High Court. In Gopakumar v. State of Kerala7 a learned Judge of the Kerala High Court held: -
8. However, right of the juvenile or juvenile in conflict with law to seek pre-arrest bail having apprehension of his arrest on accusation of a non-bailable offence is not the decisive question that may emerge for consideration before the court when such a request is made by such a person. That has necessarily to be considered and examined with reference to the laudable objectives behind the enacting of the 'Act' and the duty cast upon the court to see that the right of a juvenile or juvenile in conflict with law is not in any way impaired. More so, to ensure that none of the provisions of the Act in relation to such juvenile is violated. The Act has been primarily enacted taking note that the justice system as available for adults is not suitable and cannot be applied to a juvenile or a child. A new system 'Juvenile justice system' is provided under the Act to protect the interests of the juvenile. Even when a juvenile in conflict with law is apprehended or arrested by police, the mandate of the Act is that such juvenile shall be placed under the charge of the special juvenile police unit or the designated police officer. What should be done on apprehension of a juvenile in conflict with law is covered by S. 10 of the Act, which commands that the special juvenile police unit or the designated police officer, to which/whom the juvenile is handed over, shall immediately report to the member of the Board. Juvenile Justice Board is the authority before which the apprehended or arrested juvenile has to be produced, and on such production, it has to pass orders whether he is to be released on bail with or without sureties. Release of the juvenile even where he is accused of a non-bailable offence can be denied only where the Board is satisfied that there are reasonable grounds for believing that his release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. When such be the law governing the grant of bail to a juvenile even when he is accused of a non-bailable offence on the authority Juvenile Justice Board, after his arrest or apprehension and production, the directions issued under Annexure-V order by the learned Sessions Judge, which have been referred to earlier, compelling the juvenile to report before the police station during the investigation of the crime, are totally unsustainable. Where the salutary provisions covered by the Act insulate the juvenile or the child from being exposed to the vagaries of the police, and also from the justice system applicable to the rest of the society, mandating how they are to be dealt with even on arrest or apprehension, and a separate body and other authorities are provided constituting a juvenile justice system to deal with them, the directions given under Annexure-V order exposing and compelling the juvenile to suffer at the hands of police, asking him to report to the police station and investigating officer is violative of the Act.
9. What should have been done by the learned Sessions Judge when the juvenile applied for anticipatory bail, which in the present case was opposed by the Public Prosecutor, has also to be looked into. So far as the juvenile in conflict with law, the competent authority to deal with him is the Juvenile Justice Board. But, it has to be noticed whatever powers enjoined by the Juvenile Justice Board can be exercised by the High Court or the Court of Session. S. 6 of the Act deals with the powers of the Juvenile Justice Board. Sub-s.(2) of that section reads thus:
6. Powers of Juvenile Justice Board:
(1) X X X (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.
10. So much so, when any proceeding in relation to a juvenile comes before the High Court or the Court of Session all powers conferred on the Board under the Act can be exercised. Such proceeding need not arise from appeal or revision. The words "or otherwise" used in sub-s.(2) of S 6 of the Act is quite significant and it has to be given true meaning and spirit taking note of the objectives of the enactment when that be so, even in an application moved under S. 438 of the Code, orders could be passed by the Sessions Judge exercising the powers of the Juvenile Justice Board. At any rate, orders passed by the Sessions Judge should be in conformity with the provisions of the Act and not against or violative of the spirit and objectives of that Act. Where the police apprehends a juvenile in conflict with law, the Act mandates for placing the juvenile in charge of the special juvenile police unit or the designated police officer, and, such unit or police officer further bound to report the matter immediately to a member of the Juvenile Justice Board, there could be no direction or order to release the juvenile in the event of his arrest on execution of a bond as passed under Annexure-V order. Mandatory prescriptions covered by S. 10 of the Act have to be complied with by the police officer in the event of apprehension/arrest of juvenile in conflict with law, and once custody of the apprehended juvenile is handed over to the juvenile special unit or the designated police officer, what is his control over the juvenile is also taken care of under S. 11 of the Act. Such being the provisions covered by the Act to ensure the right of the juvenile in conflict with law, to prevent him from being exposed to police and police stations, Annexure-V order passed directing execution of bond by the petitioner in the event of his arrest and all other conditions imposed thereunder have no sanction of law, and they are vacated."
While the said decision proceeds to enter certain observations which may be interpreted as being in support of the proposition that an anticipatory bail petition could be moved by a child in conflict with law, it becomes pertinent to note that Gopakumar itself was principally dealing with the validity of certain conditions which were imposed by the Sessions Judge while according pre-arrest bail to the applicant there. The decision clearly does not deal with the question posited before us, namely, the maintainability of a petition for anticipatory bail at the behest of a child.
In Preetam Pathak v. State of Chhattisgarh8, a learned Judge of the Chhattisgarh High Court held thus: -
6. A close and careful perusal of Section 12 of the Act, 2000 would show that an application for bail of juvenile would be entertainable by the Board only if he is arrested and brought before the Board where he is accused of bailable or non-bailable offences and the condition precedent to the juvenile would be, he is arrested or detained or appears or is brought before a Board, then only his application filed under Section 12 of the Act, 2000 shall be decided by the Board. Apart from Section 12 of the Act, 2000, there is no other provisions in the Act, 2000 like Section 438 of Cr.P.C. giving powers to the Board to grant anticipatory bail to the juvenile and thus, power and jurisdiction to grant anticipatory bail has not been conferred to the juvenile Justice Board, and therefore, the provisions contained in Section 438 of Cr.P.C. cannot be exercised by this court or court of session to grant anticipatory bail to the juvenile by virtue of provisions contained in Section 6(2) of the Act, 2000.
7. The aforesaid question came to be considered before the High Court of Madhya Pradesh in case of Kapil Durgawani v. State of Madhya Pradesh (2010 (IV) MPJR 155), in which, after consideration it has been held that provisions of Section 12 of the Act, 2000 do not provide such power to the Board which is equivalent to Section 438 of Cr.P.C. and the Board has no jurisdiction to entertain application under Section 438 of Cr.P.C. by holding as under:
"Provisions of Section 12 of the Act, 2000, do not provide such powers to the Board which is equivalent to Section 438 of Cr.P.C. The Board has no jurisdiction to entertain application under Section 438 of Cr.P.C."
8. Again similar proposition has been reiterated by the MP High Court in case of Sandeep Singh Tomar v. State of M.P. (2014(IV) MPJR 49)
9. I am in respectful agreement with the view taken by the High Court of Madhya Pradesh in Kapil Durgawani (Supra) and Sandeep Singh Tomar (Supra), and in the considered opinion of this court juvenile is not entitled to maintain application under Section 438 of Cr.P.C. in absence of specific provisions in the Act, 2000. Accordingly, the application filed Section 438 of Cr.P.C. for anticipatory bail is dismissed as not maintainable in law. However, the applicant is at liberty to appear before the Board and to move appropriate application under Section 12 of the Act, 2000."
This decision deals with the question of whether the Board constituted under the 2000 Act could entertain a petition under Section 438. The learned Judge held that in the absence of a specific conferment or extension of power to grant anticipatory bail, the Board could not entertain a petition for grant of anticipatory bail. The learned Judge took note of Section 6 (2) of the 2000 Act which extended powers conferred upon the Board also to a Court of Sessions or the High Court while dealing with maters arising from that enactment. It becomes pertinent to note that similar provisions stand engrafted in the 2015 Act by virtue of Section 8(2). The learned Judge consequently proceeded to hold that by extension the petition for anticipatory bail before the High Court was not maintainable. In the respectful opinion of this Court, the contemporaneous powers conferred upon a Court of Sessions or the High Court by virtue of Section 8 (2) of the 2015 Act or Section 6 (2) of the 2000 Act would really not furnish an answer to the question posed since it would still leave the issue of whether the powers comprised in Section 438 stand excluded by implication open to debate.
That takes the Court to the principal decision in support of the issue of maintainability of the Kerala High Court in Mr. X S/O Baby V.M. v. State of Kerala9 rendered by a learned Judge of that Court. This decision directly deals with the question that arises for our consideration in this application. While dealing with the right of a child in conflict with law to maintain an application for anticipatory bail, the learned Judge held:-
"17. Section 10 of the Act empowers the police for apprehending a child alleged to be in conflict with law. It does not provide for arresting a child alleged to be in conflict with law. Section 46(1) of the Code deals with how arrests are to be made. It provides that in making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. Apprehending a person necessarily involves touching or confining the body of that person or submission of the person to the control of the police officer. Therefore, apprehending a person involves arrest of the person. Apprehending a person curtails his personal freedom and liberty. In my view, merely for the reason that Section 10 of the Act provides for apprehending a child in conflict with law and not for arresting him, it cannot be held that an application under Section 438 of the Code by him/her is not maintainable.
18. As per Section 12 of the Act, 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 the Juvenile Justice 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 unless the Board is satisfied that there are reasonable grounds for believing that granting bail to him is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice. Section 12(1) of the Act, to a large extent, obliterates the distinction between a bailable offence and a non-bailable offence as far as a child in conflict with law is concerned because whatever be the nature of the offence, bailable or non-bailable, he is entitled to be released on bail unless the proviso to that provision applies. The question is whether Section 12(1) of the Act, for that reason, creates a bar for the application of Section 438 of the Code.
19. Section 12(1) of the Act deals with a situation where a child in conflict with law is apprehended or detained by the police or appears or brought before the Board. It deals with the procedure to be followed after apprehending a child in conflict with law. When a child in conflict with law is apprehended or detained or appears or brought before the Board, the provision contained in Section 12(1) of the Act comes into play. The expression "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)" in Section 12(1) of the Act is applicable to granting of bail to a child who is alleged to be in conflict with law after his apprehension or detention by the police or appearance or production before the Board. It does not deal with a situation before apprehending a child in conflict with law. In other words, this provision does not deal with a situation before the apprehension or detention of a child in conflict with law by the police or his appearance or production before the Board. Therefore, the provision contained in Section 12(1) of the Act does not take away the jurisdiction of the High Court or the Court of Session under Section 438 of the Code even by implication.
20. Section 4(1) of the Code provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained in the Code. Section 4(2) of the Code states that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Code states that nothing contained in the case shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. It is apparent from Section 4 of the Code that the provisions of the Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with. Section 5 of the Code is not in derogation of Section 4(2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction and it does not nullify the effect of Section 4(2) of the Code. The provisions of the Code would be applicable in the absence of any contrary provision in the special Act or any special provision excluding the jurisdiction or applicability of the Code.
21. In Vishwa Mitter v. O. P. Poddar : AIR 1984 SC 5, the Supreme Court has held as follows:
"Generally speaking, anyone can put the criminal law in motion unless there is a specific provision to the contrary. This is specifically indicated by the provision of sub-section (2) of S.4 which provides that all offences under any other law meaning thereby law other than the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions in the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It would follow as a necessary corollary that unless in any statute other than the Code of Criminal Procedure which prescribes an offence and simultaneously specifies the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, the provisions of the Code of Criminal Procedure shall apply in respect of such offences and they shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure."
22. There is no provision in the Act which either expressly or by necessary implication excludes the applicability of Section 438 of the Code which provides for granting anticipatory bail. The Act does not contain any special provision dealing with granting of anticipatory bail to a child in conflict with law. Where no special provision is made under the Act with regard to any particular matter, the provision contained in the Code in that regard shall be applicable. The Act does not contain any provision which excludes the general application of the provisions of the Code as such. Wherever the legislature intended to give overriding effect to the statutory scheme of the Act over the provisions of general application contained in the Code, it has been specifically provided so.
24. I am in respectful agreement with the aforesaid view. At this juncture, it is to be noticed that in Gopakumar v. State of Kerala (2012 (4) KHC 841: 2012 (4) KLT 755), while considering the provisions contained in the Act of 2000, this Court has held that a juvenile in conflict with law apprehending arrest in a non - bailable offence, no doubt, will be entitled to seek the discretionary relief of pre-arrest bail envisaged under Section 438 of the Code because that Section takes within its ambit 'any person' to seek such relief when he has reason to believe that he may be arrested on an accusation of having committed a non - bailable offence.
25. The upshot of the discussion above is that an application for anticipatory bail under Section 438 of the Code at the instance of a child in conflict with law is maintainable before the High Court or the Court of Session."
As is evident from the conclusions recorded in Mr. X, the learned Judge took the view that the expression "apprehend" would include and necessarily involve the arrest of a person and consequently it cannot be held that an application for anticipatory bail could not be maintained by the child. Proceeding to deal with the non obstante clause as used in Section 12, the learned Judge held that the same can have no application to a situation where a child in conflict with law is yet to be apprehended. In view thereof the learned Judge opined that the provisions contained in Section 12 do not take away the jurisdiction of either the High Court or the Court of Sessions to entertain a petition under Section 438. The learned Judge then proceeded to hold that no provision of the 2015 Act either expressly or by necessary implication excluded the applicability of Section 438 of the Criminal Procedure Code. It was further noted that since the 2015 Act did not contain any special provision dealing with the grant of anticipatory bail to a child, the provisions made in that respect in the Criminal Procedure Code would apply.
The learned Judge also rested his decision on the decision rendered by a Division Bench of the Chhattisgarh High Court in Sudhir Sharma v. State of Chhattisgarh10 where dealing with an identical question, the Division Bench held as follows: -
32. As has already been dealt with hereinabove, sub section (2) of Section 4 of the Code of Criminal Procedure, 1973 clearly provides that all offences under any other law shall be investigated, enquired into, tried and other wise dealt with according to the provisions contained in the Code of Criminal Procedure, 1973, but subject to any other enactment for the time being in force, regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. Therefore, where no special provisions have been made with regard to any particular procedure under the Act of 2015 of general application contained in the Code of Criminal Procedure, 1973, to the extent they are not inconsistent or derogative with the provisions and statutory scheme of the Act of 2015, shall be applicable.
33. The Act of 2015 does not contain any provision which excludes the general application of the provisions of the Code of Criminal Procedure, 1973 as such. As has been examined hereinabove, overriding effect has been given to certain provisions of the Act of 2015 by providing non obstante clause in respect of certain matters. Wherever legislature intended to give overriding effect to the statutory scheme of Act of 2015 over the provisions of general application contained in the Code of Criminal Procedure, 1973, it has been specifically provided in given provision, which have been referred to hereinabove.
34. Word "notwithstanding anything" is used in contra-distinction to the phrase 'subject to', the later conveying idea of provision yielding place to another provision or other provision to which, it is made subject to. Please see Punjab Sikh Regular Motor Service, Moudahapara, Raipur v. Regional Transport Authority, AIR 1966 SC 1318 and South India Corporation (P) Limited v. Secretary, Board of Revenue, Trivandrum, AIR 1964 SC 207. Therefore, phrase "subject to" which occurs in Section 4(2) of the Code of Criminal Procedure, 1973 and the phrase "notwithstanding anything contained in the Code of Criminal Procedure, 1973" mentioned in various provisions of the Act of 2015, read together in juxtaposition pave wave for approach to be adopted while examining the issue whereby application of Act of 2015 in general and provisions of Section 12 of the Act of 2015 in particular, legislature intended to exclude the juvenile (child as defined under the Act of 2015) from the category of persons having statutory remedy of applying for grant of anticipatory bail.
...
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 bail 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, 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 CICL, who is apprehending his arrest on the accusation of commission of any offence. The only provision for grant of bail as contained under Section 12 of the Act of 2015, which deals with application for grant of bail 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 bail to a CICL by use of word "shall" unless there appears reasonable grounds for believing that the 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 ClCL 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 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."
Significantly the decisions rendered in Mr. X and Sudhir Sharma fail to notice the provisions made in Section 1(4) of the 2015 Act. Commencing with a non obstante clause, the provision as noted above, clearly appears to indicate the legislative intent to create an independent and special procedure to deal with the issue of arrest and detention of a child in conflict with law.
The view taken in Mr. X has been followed by a learned Judge of the High Court of Jharkhand in Birbal Munda and Others v. State of Jharkhand11 where it was held: -
"13. After going through the Judgments and orders of various High Courts referred to above it is crystal clear that some of the High Courts are of the view that the anticipatory bail filed on behalf of a child in conflict with law under Section 438 of the Code of Criminal Procedure is not maintainable basically for the following two reasons:-
(a) Since there is non obstante clause in Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015 regarding the applicability of the provisions of the Code of Criminal Procedure and Juvenile Justice (Care and Protection of Children) Act, 2015 is a special act hence the application for grant of anticipatory bail preferred by a child in conflict with law cannot be entertained by the High Court or a Court of Session in exercise of the power under section 438 of the Code of Criminal Procedure, as there is no provision either in the Juvenile Justice (Care and Protection of Children) Act, 2015 or in the Code of Criminal Procedure to enable a child in conflict with law to move an application for anticipatory bail either before the Court of Session or the High Court.
(b) The second ground is that as the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 do not envisages arrest of the child in conflict with law and deliberately the legislature has used the word 'apprehend' instead of the word 'arrest' so the pre requisites for exercising power under Section 438 of Code of Criminal Procedure that there has to be an apprehension of the applicant of being arrested in connection with non-bailable offence does not exist hence, the power under Section 438 of the Code of Criminal Procedure cannot be exercised by a High Court or a Court of Session in granting anticipatory bail to a child in conflict with law in exercise of power under Section 438 of the Code of Criminal Procedure.
14. So far as the first ground for non-availability of the relief of anticipatory bail to a child in conflict with law on the ground of non obstante clause as appearing in Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015 is concerned, I am of the considered view that non obstante clause does not take away various provisions of bail or anticipatory bail envisaged in the Code of Criminal Procedure but only removes various barriers for grant of bail under the provisions of the Code of Criminal Procedure and authorizes the Juvenile Justice Board that in-spite of such barriers for granting of bail as envisaged in Section 436 and 437 of the Code of Criminal Procedure for releasing the person arrested or detained.
15. Further the Hon'ble Supreme court of India in the case of Nikesh Tarachand Shah v. Union of India[ (2018) 11 SCC 1: AIR 2017 SC 5500] while considering the provision of bail in cases involving the offences punishable under The Prevention of Money-Laundering Act, 2002, Section 45(1) of which starts with the non obstante clause imposing restrictions for grant of anticipatory bail, which reads as under when the said judgment was passed (Subsequently the said section has been amended):-
45. Offences to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by-
(i) the Director; or
(ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.
16. Inter alia observed as under in paragraph- 35 of the said judgement:-
35. Another conundrum that arises is that, unlike the Terrorist and Disruptive Activities (Prevention) Act, 1987, there is no provision in the 2002 Act which excludes grant of anticipatory bail. Anticipatory bail can be granted in circumstances set out in Siddharam Satlingappa Mhetre v. State of Maharashtra,[(2011) 1 SCC 694 (See paragraphs 109, 112 and 117) : (AIR 2011 SC 312, Paras 118-119, 122 and 128)]. Thus, anticipatory bail may be granted to a person who is prosecuted for the offence of money laundering together with an offence under Part A of the Schedule, which may last throughout the trial. Obviously for grant of such bail, Section 45 does not need to be satisfied, as only a person arrested under Section 19 of the Act can only be released on bail after satisfying the conditions of Section 45. But insofar as pre-arrest bail is concerned, Section 45 does not apply on its own terms. ... ...
(Emphasis Supplied)
17. Thus, certainly the said non obstante clause does not exclude the availability of remedy of applying for grant of anticipatory bail on behalf of a child in conflict with law, who is apprehending his arrest on accusation of having committed a non bailable offence therefore beneficial provision to grant of bail to a child in conflict with law, like the instant case where a child as young as 5 years has been accused of murdering the deceased in furtherance of common intention, as envisaged under section 438 of the Code of Criminal Procedure and certainly keeping in view the objects and reasons of the enactments in view Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015 cannot be interpreted to the detriment of a child in conflict with law and the interpretation that the said provision disentitles a child in conflict with law to the statutory scheme of seeking anticipatory bail provided under Section 438 of the Code of Criminal Procedure will not be a rational construction of non obstante clause appearing in Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015 as the said non obstante clause only seeks to put the child in conflict with law in a better position as compared to any other person who is not a child in conflict with law by providing that in absence of existence of three specified grounds exhaustively enumerated in the said section the child in conflict with law has to be granted bail and interpreting the said non obstante clause by giving it a wide amplitude as to exclude the statutory remedy of applying for anticipatory bail by a child in conflict with law will be an illogical interpretation.
18. Further as Section 438 of the Code of Criminal Procedure envisages that any person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence may apply to the High Court or the Court of Session under Section 438 of the Code of Criminal Procedure that in the event of such arrest he shall be released on bail and though the word 'person' has not been defined in the Code of Criminal Procedure but the same has been defined in Section 11 of the Indian Penal Code which reads as under:-
11. "Person"-The word "person" includes any company or association or body of persons, whether incorporated or not.
19. Hence, applying the definition of person mentioned in the Indian Penal Code to the word "person' as mentioned in section 438 of the Code of Criminal Procedure in terms of Section 2 (y) of the Code of Criminal Procedure which reads as under:-
"2. Definitions:- In this Code, unless the context otherwise requires,-
(y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code."
20. It cannot be said that the Code of Criminal Procedure does not provide a child in conflict with law which certainly comes within the ambit of the words "person of any age" is entitled to approach the High Court to seek the relief of anticipatory bail in terms of Section 438 of the Code of Criminal Procedure or the Court of Session.
21. So far as the second ground that a child in conflict with law does not has the remedy to the anticipatory bail as the word 'apprehend' has been used instead of the word 'arrest' in Section 10 of Juvenile Justice (Care and Protection of Children) Act, 2015 is concerned, in P. Ramanatha Aiyar's Law Lexicon, published by Wadhwa and Company(Reprint 2002 of Second Edition 1997) the meaning of the word 'Apprehend' has been mentioned as under:
Apprehend- To seize under process of law; to take into custody; make prisoner; arrest by legal warrant or authority.
22. As mentioned in the said Law Lexicon the distinction between the words 'apprehension' and 'arrest' was considered by Court in England in the case of Montgomery County v. Robinson (85 III 176, Black) and the said two words have been distinguished as under:
"The term 'apprehension' seems to be more peculiarly appropriate to seizure on criminal process; while "arrest" may apply to either a civil or criminal action but it perhaps be confined to the former."
23. It is pertinent to refer to section 46(1) of the Code of Criminal Procedure which reads as under:
46. Arrest how made - (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by words or action.
[Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest]
24. The said section provides that in making an arrest the police officer or the person making arrest shall actually touch or confine the body of the person to be arrested and unless there be a submission to the custody by word or action, thus apprehending a person necessarily involves touching or confining the body of that person to or submission of the person to the control of the police officer or the person making arrest. Therefore "apprehending" in my humble opinion also involves the arrest of a person as apprehending a person certainly curtails his personal freedom and liberty as has been held by the Hon'ble Supreme Court in the case of Gubaksh Singh Sibbia vs. State of Punjab reported in (1980) 2 SCC 565: AIR 1980 SC 16632 wherein bail has been interpreted as under:-
".... .... .... Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally an order of bail gives back to the accused that freedom on condition that he will appear to take his trail. .... ..... ...... ....."
25. Thus, I am of the considered view that the provision contained in Section 12 (1) of Juvenile Justice (Care and Protection of Children) Act, 2015 does not extinguish the jurisdiction of a High Court or the Court of Session under Section 438 of the Code of Criminal Procedure in any manner."
In Birbal Munda the learned Judge, placing reliance upon the definition of the word "person" as appearing in Section 11 of the Indian Penal Code, proceeded to hold that a child in conflict with law would clearly fall within the ambit of the words "person of any age". The learned Judge further held that there was no significant distinction between the words "apprehension" and "arrest" and therefore held that Section 12 of the 2015 Act does not extinguish the jurisdiction of a High Court of the Court of Sessions as conferred by Section 438 of the Criminal Procedure Code.
A contrary view has been taken by the Division Bench of the Madras High Court in K. Vignesh v. State represented by the Inspector of Police12 where it was held: -
"11. While enacting the Juvenile Justice (Care and Protection of Children) Act, 2015, the Legislature was well aware of Chapter V of the Code of Criminal Procedure more particularly Section 46 of the Code of Criminal Procedure as to how a person could be arrested. Had it been the intention of the Legislature, that a police officer should be empowered to arrest a child in conflict with law, the Legislature would have very well used the expression 'arrest' instead of using the expression 'apprehend' in Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015. In our considered view, the Legislature has, thus, consciously omitted to use the expression 'arrest' in Section 10 of the Act, which means that the Legislature did not want to empower the police to arrest a child in conflict with law. The Legislature, being aware of the consequences that ensue the arrest, has avoided to empower the police to arrest a child in conflict with law. At the same time, the child in conflict with law cannot be let free as it would not be in the interest of the child in conflict with law as well as the society. Therefore, the Legislature had obviously thought it fit to give only a limited power to the police. In other words, the Legislature has empowered the police simply to apprehend a child in conflict with law and immediately, without any delay, cause his production before the Juvenile Justice Board. The Juvenile Justice Board has also not been empowered to pass any order of remand of the child in conflict with law either with the police or in jail. The proviso to Section 10 of the Act makes it very clear that in no case a child alleged to be in conflict with law shall be placed in a police lock-up or lodged in a jail. The Board has been obligated to send the child either to an observation home or a place of safety. There are lot of other safeguards in the Act as well as in the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 to ensure that the child so apprehended by a police or any other authority shall not in any manner be disturbed emotionally, psychological or physically. Thus, a reading of the entire scheme of the Act would inform that no authority, including the police, has been empowered to arrest a child in conflict with law but instead the child in conflict with law could only be apprehended and produced before the Juvenile Justice Board.
.... .....
15. From the above narration of various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, one can understand, without any doubt whatsoever, that a child in conflict with law cannot be arrested and thus there can not be apprehension of arrest and so an application at the instance of a child in conflict with law either before the High Court or before the Court of Sessions under Section 438 Cr.P.C. is not maintainable. The Juvenile Justice (Care and Protection of Children) Act, 2015 is a self-contained Code which is both substantive as well as procedural. The Act takes care of the interest of the child in conflict with law on the child being apprehended. When a question arises before the Board as to whether to grant bail to the child or not, the Board shall not grant bail if it finds that it is likely to bring the child into association with any known criminal or expose the said person to moral, physical or psychological danger or when the Board finds that the person's release would defeat the ends of justice. Even after bail is refused to the child, the child cannot be remanded to either judicial custody or police custody. The Board shall ensure the welfare of the child by keeping the Child in an Observation Home or a place of safety.
16. Thus, there are lot of safeguards provided to the child in conflict with law in the event the child is apprehended by the police. In the light of these safeguards, and in the light of the legal position 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 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 Cr.P.C. Thus, we approve the view of the Hon'ble Mr. Justice P.N. Prakash in Ajith Kumar Vs. State, reported in 2016 (2) CTC 63 and we are impelled to overrule all the other orders wherein conflicting views have been expressed. Accordingly, we answer the reference."
The Division Bench as is evident from the extracts quoted above proceeded to draw a distinction between the expression "arrest" and "apprehend" and came to conclude that since no arrest was contemplated under the provisions of the 2015 Act, the provisions of Section 438 would not apply. More significantly K. Vignesh noted that the 2015 Act was a self-contained code in both a substantive as well as a procedural sense. In that view it held that an application for anticipatory bail would not be maintainable.
The view taken by the Madras High Court is also shared consistently by the Madhya Pradesh High Court, which too has taken the view that a petition for anticipatory bail at the behest of a child is not maintainable. Noticing the various decisions rendered by that High Court on the subject, a learned Judge while deciding Miscellaneous Criminal Case No. 10345 of 201913 held as follows: -
"11. The Act, 2015 further makes it clear that bail plea of a juvenile can only be entertained when he is arrested or detained or appears or is brought before the Board, and not otherwise. In fact, no provision in 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. Reason appears behind this is that the Act makes the bail a rule and jail an exception.
12. The issue regarding anticipatory bail of a Juvenile has been dealt with by this Court in para 16, 21 to 23 of Satendra Sharma v. State of Madhya Pradesh MCRC No. 4183 of 2014, dated 8.7.2014, which are as under:
16. On bare perusal of this provision, 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 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 be decided by the Board only but not by the High Court or Court of Session as discussed above.
21. The anticipatory bail can be granted in anticipation of arrest but such proceedings are not inserted in the Act. The only provision for bail of Juvenile is given under Section 12 of the Act which has been discussed as above.
22. In view of the aforesaid discussion, this Court is of the view that application for grant of anticipatory bail preferred by the 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. 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 Section 438 and 439 of Cr.P.C. Therefore, I respectfully disagree with the interpretation made by the learned Single Judge of the Hon. Rajasthan High Court and Hon. Chhattisgarh High Court.
23. Accordingly, application for grant of anticipatory bail by the applicant is hereby dismissed. ....
13. In Kapil Durgawani v. State of Madhya Pradesh reported in 2010 (IV) MPJR 155, the High Court of Madhya Pradesh has held that even the Juvenile Board has no jurisdiction to entertain anticipatory bail application. Relevant portion of the decision is extracted as under:
''Provisions of Section 12 of the Act, 2000 do not provide such powers to the Board which is equivalent to Section 438 of Cr.P.C. The Board has no jurisdiction to entertain application under Section 438 of Cr.P.C."
14. Similar view is taken by the High Court of Chattisgarh in Preetam Pathak v. State of Chattisgar in MCRC (A) No. 1104 of 2014 and it has held as under:
7. A close and careful perusal of Section 12 of the Act, 2000 would show that an application for bail of juvenile would be entertainable by the Board only if he is arrested and brought before the Board where he is accused of bailable or non bailable offences and the condition precedent to the juvenile would be, he is arrested or detained or appears or is brought before a Board, then only his application filed under Section 12 of the Act, 2000 shall be decided by the Board. Apart from Section 12 of the Act, 2000, there is no other provisions in the Act, 2000 like Section 438 of Cr.P.C. giving powers to the Board to grant anticipatory bail to the juvenile and thus, power and jurisdiction to grant anticipatory bail has not been conferred to the juvenile Justice Board, and therefore, the provisions contained in Section 438 of Cr.P.C. cannot be exercised by this court or court of session to grant anticipatory bail to the juvenile by virtue of provisions contained in Section 6(2) of the Act, 2000.
8. The aforesaid question came to be considered before the High Court of Madhya Pradesh in case of Kapil Durgawani v. State of Madhya Pradesh, in which, after consideration it has been held that provisions of Section 12 of the Act, 2000 do not provide such power to the Board which is equivalent to Section 438 of Cr.P.C. and the Board has no jurisdiction to entertain application under Section 438 of Cr.P.C. by holding as under:
"Provisions of Section 12 of the Act, 2000, do not provide such powers to the Board which is equivalent to Section 438 of Cr.P.C. The Board has no jurisdiction to entertain application under Section 438 of Cr.P.C."
15. Again similar view was reiterated by MP High Court in case of Sandeep Singh Tomar V. State of M.P. Passed in M.Cr.C. No.9816 of 2013, decided on 10th March, 2014.
16. Therefore, in my considered opinion, in absence of specific provisions in the Act, 2015, juvenile is not entitled to move application under Section 438 of Cr.P.C. "
On a careful consideration of the various judgments rendered by different High Courts it is relevant to note that those which hold that a petition for anticipatory bail is not maintainable at the behest of a child have proceeded principally on the basis of the absence of a specific conferral of power to grant anticipatory bail under the 2015 Act. This Court however is respectfully of the opinion that mere absence of a specific provision enabling the Board to grant anticipatory bail is clearly not an answer to the question posed. Suffice it to note that Section 4 of the 2015 Act while provides for the constitution of the Board confers on that entity all powers as invested in a Metropolitan Magistrate or a Judicial Magistrate of the First Class by the Criminal Procedure Code. It also cannot be disputed that the provisions of the Criminal Procedure Code would generally apply except where a departure in respect of a particular matter is made in the 2015 Act or a special provision to the contrary engrafted therein. This would also appear to be the correct position when one bears the provisions of Section 4 (2) of the Criminal Procedure Code in mind. Similarly this Court fails to find any significance liable to be accorded to the non-obstante clause as appearing in Section 12 of the 2015 Act. The non-obstante clause as employed in Section 12 merely regulates the power of bail as conferred and invested in the Board. It simply enables the Board to release a child in conflict with law on bail irrespective of any procedural or substantive restraint or fetter as contained in the Criminal Procedure Code to the contrary. Consequently the only impact which the concerned non obstante clause has is to confer on the Board a power to release a child on bail irrespective of any condition or restriction that may be found in the Criminal Procedure Code with respect to the grant of bail. The non-obstante clause as appearing in Section 12 consequently is neither indicative nor determinative of the right of a child to seek anticipatory bail.
This Court is also of the considered view that it would be clearly hazardous to base the answer to the question posed on the quagmire of semantics and the perceived distinction as sought to be drawn by certain High Courts while interpreting the words "arrest" and "apprehend". P. Ramanatha Aiyar in the Advanced Law Lexicon defines the expressions "apprehension" and "arrest" to mean "the seizing or taking hold of a man; the act of arresting or seizing under process of law; the apprehension of criminals". The word "apprehend" has been defined to mean "to take into custody; make prisoner; arrest by legal warrant or authority". In Words And Phrases Permanent Edition, the expression "apprehension" has been defined to mean:-
"The word "apprehension" means the seizure, taking, or arresting of a person on a criminal charge, the term "apprehension" being applied exclusively to criminal cases as distinguished from the word "arrest," which is applied to both civil and criminal cases. Hogan v. Stophlet, 53 N.E. 604, 606, 179 Ill. 150, 44, L.R.A. 809. See, also, Montgomery County v. Robinson, 85 Ill. 174, 176."
"Apprehend" is defined as "to take or seize (a person) by legal process; to arrest; as to apprehend a criminal." "Arrest" is defined as "the taking or apprehending of a person by authority of law; legal restraint; custody." The words "apprehension" and "arrest," as used in Rev.St.1899, [] 2474, V.A.M.S. [] 544.150, providing that any two judges of the county court may offer, for the county, a reward for the apprehension and arrest of a person committing a felony, are synonyms, and a reward offered for the apprehension of a felon is within the authority of the judges of the county court. Cummings v. Clinton County, 79 S.W. 1127, 1129, 181 Mo. 162, quoting Webster's Dict."
In the Oxford English Dictionary the word "apprehension" has been defined as the "seizure of a person, a ship etc. in the name of justice or authority; arrest". The word "arrest" has been defined to mean "apprehend or restraining of one's person in order to be forthcoming to answer an alleged or suspected crime". It has further been defined to include "a person being placed under legal restraint, in the hands of law, arrest". It is thus manifest that the expressions "apprehend" and "arrest" are possible to be used interchangeably and do not appear to have a generic or significant distinction. Both those words would appear to include the detention or a person by virtue of a power conferred by law. The answer to the question, therefore, cannot be made to rest merely on the use of the expression "apprehend" in Section 10 of the 2015 Act.
A clearer and a more sustainable answer clearly flows from the recognition of the 2015 Act as being a complete code in itself. As has been noticed in the earlier parts of this decision, the enactment lays in place an all encompassing and comprehensive statutory regime dealing with a child in conflict with law and issues arising from and pertaining to the apprehension, detention, prosecution, penalty and imprisonment of such a child. This is clearly evident from a reading of Section 1(4). This singular provision is clearly indicative of the legislative intent to confer upon the 2015 Act exclusivity and an overriding effect insofar as these subjects in relation to a child in conflict with law are concerned. It is the provisions of Section 1(4) and the special and distinct procedure as laid in place which appears to indicate and imply that Section 438 Criminal Procedure Code would have no application. The Court also bears in mind that both Sections 10 and 12 lay down a detailed procedure and statutory mechanism which must be mandatorily followed consequent to the apprehension of a child in conflict with law. These provisions neither entail nor envisage the detention or placement of the child in a jail or police lock-up. As is manifest from the procedure as laid down in Section 10 the child upon being apprehended by the police has to be immediately placed in the custody and care of the SJPU or the CWPO to be produced before the concerned Board without any loss of time and in any case within 24 hours of apprehension. During the period before his production before the Board the child is to be placed in an observation home. The provision also does not empower the authorities to question or interrogate. As is evident from the provisions made in the Model Rules he is to be interviewed by the SJPU or the CWPO bearing in mind the salutary safeguards that have been put in place. In terms of Section 12 the Board is obliged to forthwith release the child unless it forms the opinion that hid release would fall within the ambit of the Proviso to Section 12 and be not conducive to the over all interest of the child. This Court is consequently of the view that the principal trigger which confers the right of an individual to invoke the provisions of Section 438, namely, of arrest and detention by the police is absent. It consequently must be held that the need to invoke the jurisdiction of either the High Court or the Court of Sessions as conferred by Section 438 of the Criminal Procedure Code is clearly obviated.
More importantly, the special provisions laid in place clearly indicate that the provision of pre-arrest bail as made in Section 438 of the Criminal Procedure Code would clearly impede, hinder and may even disrupt or retard the mandatory statutory procedure which is liable to be adhered to in view of the provisions made in the 2015 Act and the Model Rules. The 2015 Act lays in place a complete machinery to deal with issues that may arise on account of the apprehension of a child in conflict with law. An order of anticipatory bail would clearly disrupt and interfere with the salutary process statutorily constructed.
That only leaves the Court to deal with a situation where a child apprehends his arrest or detention prior to the registration of a first information report or prior to the recordal of a cognizable offence not falling in the genre of a heinous offence by the SJPU or the CWPO. It becomes relevant to note that in terms of the provisions made in Rule 8 of the Model Rules, the process is initiated either upon the registration of a first information report in the case of a heinous offence or where any other cognizable offence not entailing imprisonment of more than seven years comes to be recorded. The procedures as contemplated in Sections 10 and 12 read with Rules 8 and 9 would stand initiated only upon the recordal of information. However as has been consistently held the powers conferred by Section 438 Cr.P.C. can be invoked even before a report in respect of a cognizable offence is made or recorded. During this period and in such a situation the child has no remedy or avenue of protection under the 2015 Act. Prior to the registration or recordal of information in respect of a cognizable offense, the child would consequently be left with no remedy against an apprehended deprivation of liberty. The Court cannot possibly leave a child in such a situation with no avenue of redress or protection against a potential deprivation of liberty. It is only within this limited window that perhaps the right of a child in conflict with law to invoke Section 438 can possibly be recognised. The Court is of the considered view that the right conferred by Section 438 of the Criminal Procedure Code would be entitled to be invoked by a child apprehending arrest prior to the registration of a first information report in the case of a heinous offense or recordal of information in respect of other offenses and prior to Section 10 and other provisions of the 2015 Act coming into play.
SUMMATION The Court is of the considered opinion that the mere use of the expression "apprehended" in Section 10 does not really furnish an answer to the question framed. As noticed hereinabove the words arrest and apprehend can possibly be used as substitutes of each other and convey an identical meaning. The absence of a specific conferment of power to grant anticipatory bail upon the Board and by extension to the Court of Sessions or the High Court is not determinative of the question raised since the provisions of the Criminal Procedure Code may otherwise apply and operate in areas where the 2015 Act is either silent or constructs no special or distinct measure. The non obstante clause as used in Section 12 is only indicative of the Board being conferred the power to grant bail notwithstanding any restraint or fetter that may be found in that regard in the Criminal Procedure Code.
The implied exclusion of Section 438 essentially flows from Section 1(4) of the 2015 Act that confers on the provisions made therein in respect of arrest and detention the character of preeminence. The section is a clear manifestation of the legislative intent that the provisions of the 2015 Act dealing with arrest and detention must necessarily prevail over any other law for the time being in force. The 2015 Act represents an all encompassing and self contained code laying in place a separate and distinct procedure liable to be followed in case of arrest or detention of a child in conflict with law. It places significant and special safeguards in respect of the apprehension of a child in conflict with law. It is in that sense not an incarceration or detention by the police as normally understood. The extension of the provisions of Section 438 of the Criminal Procedure Code would clearly interfere with and disrupt the statutory process that is otherwise liable to be followed upon apprehension of a child. It must consequently be held that once a first information is registered or information otherwise recorded by the SJPU or the CWPO with regard to a child in conflict with law, the provisions of Section 438 stand impliedly excluded. In such a situation it is the provisions made in Sections 10 and 12 of the 2015 Act which alone must be permitted to operate and recognised in law to be applicable.
The only limited window in which Section 438 can be held to apply is the pre recordal of information stage with regard to an offense allegedly committed by a child. As noticed above, Section 10 comes into play only once information in respect of an offense comes to be recorded. Prior to that a child apprehending detention or deprivation of liberty is accorded no protection or avenue of redress under the 2015 Act. It is within this narrow confine alone that his right to invoke the jurisdiction of the Court of Sessions or the High Court must be recognised to exist and preserved.
CONCLUSION In the present case, a first information report has already come to be lodged against the two applicants. The learned AGA has rightly submitted that the police cannot apprehend the applicants and that it is the procedure prescribed by Sections 10 and 12 that will have to be necessarily followed. In that view of the matter the Court is of the opinion that the apprehension of arrest is clearly misplaced.
Taking on board the statement of the learned AGA, the instant application is dismissed as not maintainable.
Order Date: - 20.1.2020 LA/faraz/Arun K. Singh (Yashwant Varma, J.)