Chattisgarh High Court
Sudhir Sharma vs State Of Chhattisgarh on 3 March, 2017
AFR HIGH COURT OF CHHATTISGARH. BILASPUR MCRCA No.549 of 2016 - Sudhir Sharma S/o Chandrabhan Sharma Aged About 15 Years By Caste - Bramhan, R/o Ward No. 15 Sakti, Police Station & Tahsil - Sakti, Distt. Janjgir - Champa Chhattisgarh (Through His Natural Guardian Father Namely Chanrabhan Sharma S/o Late Dharam Das Sharma, Aged About 60 Years) ---- Petitioner Versus 0 State Of Chhattisgarh Through, Station House Officer, Police Station - Sakti, Distt. Janjgir -- Champa Chhattisgarh ---- Respondents
\ Shri Awadh Tripathi, Advocate Shri D. R. Minz, Dy.GA % the High Court of Chhattsgarh Rules, 2007 is as follows:--
under Rule'émz of "Whether the application at the behest of a Juvenile before the Sessions Court or High Court under Section 438 Cr.P.C. would lie?"
2. The aforesaid reference arises out of an application for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 filed by the applicant herein, who is a child in conflict with law (For short "ClCL") being less than 18 years, apprehending his arrest in connection with Cr. No.90 of 2016 registered by the police of Police Station Sakti for alleged commission of offence punishable under Section 341, 294, 506, 186, 332, 353/34 of lPC.2
The CICL moved this Court praying that he may be granted anticipatory bail as he is being falsely implicated though he has not committed any offence. The ClCL initially moved an application for grant of anticipatory bail before the Sessions Judge. However, the application was rejected on the ground that the applicant is a CICL, therefore, petition under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable in view of the dictum laid down in the M.Cr.C.(A)No.1104 of 2014 (Preetam Pathak vs. State of Chhattisgarh) decided by the learned Single Judge of this Court on 17-12-2014. While hearing the application for grant of anticipatory bail, it was argued that the decision in the case of Preetam Pathak (supra) is contrary to (supra). While hearing the anticipatory bail application in the present case, relying upon the dictum in the case of Mohan (supra), the statutory scheme of the Act of 2000 and Juvenile Justice (Care and Protection of Children) Act, 2015 (In short "the Act of 2015") conjointly with the provision of anticipatory bail engrafted under Section 438 of the Code of Criminal Procedure, 1973, a different view was expressed leading to disagreement with the view taken in the case of Preetam Pathak (supra), which eventually led to reference made on the aforesaid question of law to this Bench for decision.
3. In order to answer the reference, it is considered proper to examine the 3 legislative scheme of grant of anticipatory bail under the Code of Criminal Procedure as also that of Act of 2000, now repealed by the Act of 2015 and to find out whether in respect of a child in conflict with law within the meaning of Act of 2015, the said Act of 2015 expressly or by necessary implication excludes benefit of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.
4. ln historical perspective, the Code of Criminal Procedure, 1898 did not contain any provision of anticipatory bail. The Law Commission of India in its 41st report dated 24--09-1969 pointed out the necessity of provision in the Code enabling the High Court and the Court of Sessions to dry baubgn-The suggestion for directing the release of a person on bail prior tE hi§§arrest (commonly known as "anticipatory ball") was carefully considered . Though there is a conflict ofjudicial opinion about the power of a cou~ ant anticipatory bail, the majority view is that there is no such po the existing provisions of the Code. The necessity for ' . ' xxng bail arises mainly because sometimes influential persons mp watefiheir rivals in false cases for the purpose of disgracing them or 'fomsfiseW'B'Urposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail."
39.9. Anticipat % Suggestion made by the Law Commission of India, in particular, was
5. accepted by the Central Government which introduced Clause 447 in the draft bill of the Code of Criminal Procedure, 1970 with a view to conferring an express power on the High Court and Court of Sessions to grant anticipatory bail. It was followed by recommendations made by the Law Commission of India in its 48th report, 1972. Clause 447 of the draft bill of 1970 was enacted with 4 certain modification and became Section 438 of the Code of Criminal Procedure, 1973 (Act No.2 of 1974), which read as under:-
438. Direction for grant of bail to person apprehending arrest.--
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub--
section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
hat the person shall not, directly or indirectly, make any eat or promise to any person acquainted with the facts of the N _ _de him from disclosing such facts to the Court or to any
(iii) a condition that the .. fission ofthe Court, \.
(N) such other condition ajfijmay be imposed under sub--section (3) of section 437, as if the bail we gra§ited under that section.
qfiwwle in the custody of such officer to give bail, he shall be ' and if a Magistrate taking cognizance of such offence decides issue a bailable warrant in conformity with the direction of the Court under sub-- section (1).
Later on, vide the Code of Criminal Procedure (amendment Act, 2000) 25,-----Section 438(1) was substituted as below:--
"438-(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-
(i) the nature and gravity of the accusation;
(E) the antecedents of the applicant including the fact as to whether he has 5 previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
the possibility of the applicant to flee from justice; and (M where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub- section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-- charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application."
6. A Constitution Bench of the Supreme Court in the case of Gurubaksh Singh Sibbia vs. State of Punjab, AIR 1980 SC 1632, had an occasion to comprehensively deal with the scope, ambit and concept of anticipatory ball.
The scope and ambit of provision under Section 438 of the Code of Criminal ~ po rtant right, which was sought to protected by providing ditional imm nfinement was explained thus:--
Sj\\jction 438 affords is generally referred to as pre$§ion which was used by the Law Commission in its ,_.se§tion nor its marginal note so describes it but, the \f' is a convenient mode of conveying that it is in anticipation of arrest. Any order of bail can, of from the time of arrest because, to grant ball, as ngsttlaw Lexicon, is to 'set at liberty a person arrested or , I sté'burity being taken for his appearance'. Thus, bail is basically restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom ofmovement 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 trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. in other words, unlike a post- arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46 (1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person possible to appl course, be eff at ' 6 making the arrest "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". A direction under section 438 is intended to confer conditional immunity from this 'touch' or confinement."
7. In order to emphasize upon the valuable right to seek protection against arrest by taking recourse to provision under Section 438 of the Code of Criminal Procedure, the Constitutional Bench of the Supreme Court also referred to the observations made by Krishna Ayyer, J. in the case of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh,(1978) 1 SCC 240, where it was held :-
é P'Ebmxnvearer home, it was observed by Krishna lyer, J., in Gudikanti u'lu'v\\\§ublic Prosecutor, High Court of Andhra Pradesh that "the liberty, justice, public safety and burden of the public ' ist that a developed jurisprudence of bail is integral to treasury, all a socially sensitiz I';;'_al process. After all, personal liberty of an accused or convict is fundamental, '§\uffering lawful eclipse only in terms of procedure " "t four words of Article 21are the life of that human issue of b «'3' \ s?
Wm, in one of its Ive pronouncement of recent times in the case of s Mhetre, (2011) 1 SCC (Cri.) 514, the Supreme Court . X;
\\§§\\~ 'ixE-33'9 I ..\ -- '~. '3"
examined the scope and ambit of Section,,_438 of the Code of Criminal Procedure, 1973 in following words:-
Scope and ambit of Section 438 Cr.P. C.
13. "it is apparent from the Statement of Objects and Reasons for introducing Section 438 in the Code of Criminal Procedure, 1973 that it was felt imperative to evolve a device by which an alleged accused is not compelled to face ignominy and disgrace at the instance of influential people who try to implicate their rivals in false cases. The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section 438 Cr.P.C. The only two clear provisions of law by which bail could be granted were Sections 437 and 439 of the Code. Section 438 was incorporated in the Code of Criminal Procedure, 1973 for the first time.
14. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of 7 personal liberty and freedom in a free and democratic country. When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court."
9. The provision for grant of anticipatory bail engrafted under Section 438 of the Code of Criminal Procedure was kept on a very high pedestal and linked while examining the validity of restrictions imposed on the accused by observing thus:--
104. "The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and mmegggiter can apply for regular bail. This is contrary to the basic intention " ' \gction 438 Cr.P.C. It is also contrary to Article 21 of the .\_of fairness and reasonableness is implicit under Article "'-,lndia. Directing the accused to surrender to custody $1,"
&§ition crystallized by the Constitution Bench of this that the courts should not impose restrictions on the ambit and scope of Se§tion 438 Cr.P.C. which are not envisaged by the Legislature. The court eannfit rewrite the provision of the statute in the garb of V/w' earlier decrsron In the case of Gurubaksh Smgh SIbba (supra) held that Section 438(1) is to be interpreted in the light of Article 21 of the Constitution of India.
10. From above discussion of the scope and ambit of provision contained in Section 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail, it has to be held that the provision for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure constitutes a very important right of a person to apply for bail in anticipation of his arrest which has been traced to individual liberty and constitutional protection of life and liberty enshrined under Article 21 of the Constitution of India.
811. Whether a CICL as defined under the Act of 2015 is deprived of the aforesaid valuable right to apply to grant of anticipatory bail under Section 438 of the Code of Criminal Procedure is an issue required to be decided in aforesaid perspective.
12. Provision for grant of anticipatory bail under Section 438 is a part of the Code of Criminal Procedure, 1973, which is an Act to consolidate and to amend the law relating to criminal procedure and of general application in the matter of investigation, enquiry and trial for the offence under the Indian Penal Code as also for the offences under any other law. Applicability of the general provisions of the Code of Criminal Procedure, 1973, is governed by the provision thereof which are extracted herebelow:--
Runder the Indian Penal Code and other laws-
.\ (1).:'All offences under theigdian Penal Code (45 of 1860) shall be investigated, ' " §then~ise dealt with according to the provisions / .
E?
e \§ §
-,~.-'Other law shall be investigated, inquired into, tried, ccording to the same provisions, but subject to any X being in force regulating the manner or place of '"nto, trying or othenNise dealing with such offences.
(Z) All offences underE and otherwise dealt, ' contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power" conferred, or any special form of procedure prescribed, by any other law for the time being in force."
While sub section (1) of Section (4) provides for investigation, enquiry and trial in respect of the offences under the Indian Penal Code, sub section (2) provides that all offences under any other law shall be investigated, enquired into, tried and othenNise dealt with according to the same provisions. However, it further provides that it shall be 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.
9Therefore, the Code of Criminal Procedure applies generally in respect of investigation, enquiry and trial for all the offences under other law but in case, there is any special enactment which regulates those aspects, general applicability of the provisions of the Code of Criminal Procedure shall be subject to that enactment.
Section 5 also provides that in the absence of specific provision contrary to the provisions contained in the Code of Criminal Procedure, 1973 shall not affect any special or local law for the time being in force or special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force.
\mwmmwm. _ Rn 438 of the Code of Criminal Procedure are Cl as defined under the Act of 2015, it has to be \1 seen whether any prov ion co§§1tainedin the the Code of Criminal Procedure \_§ § Mr-
//I*/ , \ngm 1'4. words of Section 438 clearly indicate that where any person has reason to believe that he may be arrested on accusation made on non-- bailable offences, he may apply to the High Court or the Court of Sessions for the direction under that section that in the event of such arrest, he shall be released on bail. At the first place, the section does not expressly exclude from its application, a CICL. The expression, used therein is 'any person'. The word 'Person" has not been defined in the Code of Criminal Procedure but clause (y) of Section 2 which is definition clause, provides that the words used therein and not defined but defined in the Indian Penal Code (45 of 1960) shall carry the 10 same meanings respectively assigned to that in the said Code. Therefore, one has to look into the provisions of indian Penal Code.
15. Section 11 of the lPC defines 'Person' as below:--
11. "Person".--The word "person" includes any Company or Association or body of persons, whether incorporated or not.
16. The definition is inclusive one, intended not only to natural person but also to juristic personality. Again this provision does not exclude a CICL.
17. The survey of the provisions contained in the Code of Criminal Procedure nowhere implies that in respect of a ClCL, the provision for grant of anticipatory bail would not be applicable. it is to be, now seen whether provisions contained \mwmmwm. _ Mr-
//I*/ V is :\.
cgére, protection, treatment, development and The provision contained in Clause 3 of Article 15, clauses (e) & (f), Article 39, Articles 45 & 47 enjoined on the state, primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected. On 20-11-1989, Joint Assembly of the United Nations adopted the convention on the rights of the child wherein, a set of standards to be adhered to by all the State parties in securing the best interest of the child was prescribed. The Government of India having ratified the resolution, found it expedient to enact law regarding ClCL bearing in mind the standards prescribed 11 in the convention of the right of a child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (The Beijing Rules), the United Nations Rules for the protection of ClCL deprived of their liberty (1990) and all other International instruments. This led to re--enactment of Act, known as Juvenile Justice (Care and Protection of Children) Act, 2000. This Act are framed, in force and in operation for more than one and a half of the decade has "
now been replaced by the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016) which is an Act to consolidate and amend the Law in respect of children found to be in conflict with law and children in need of care and protection by catering to their basic need through proper care, protection, social re--integration, by adopting child friendly approach In the n and disposal of matters in the best interest of fl/ their re'hiabilitationthrough processes provided and institutions and children 7////////// fi> ct and for matters connected therewith and ///,/z§' fich is definition clause, defines child in conflict Wk oth, as below:
Ngmgegmmfifiuln this Act, unless the context otherwise requires,--
---- xxxx -----
(12) "Child" means a person who has not completed eighteen years of age;
(13) "Child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence;
---- xxxx \ ----
(35) "juvenile" means a child below the age of eighteen years;"
The aforesaid enactment is a special enactment dealing with juvenile. The child in conflict with law as defined, means a child who is alleged or found to 12 have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. The CICL is to be dealt with as has been provided in Chapter-IV of the Act of 2015. Section 10 provides thus:--
10. Apprehension of child alleged to be in conflict with |aw.--(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 lockup or lodged in a jail.
:::<-- WW(°23""???"(e'iStatQKGovernment may make rules consistent with this Act,-- '\.
' ' \rsons through whom (including registered voluntary (alleged to be in conflict with law may be produced in which the child alleged to be in conflict with law ' 2 n home or place of safety, as the case may be.
XXXX'WS. .. .
this chapter not only make provision with regard to procedure to be followed in the matter of enquiry to be held against the children, who is found to be in conflict with law but also makes provision with regard to grant of bail to a person, who is apparently a child alleged to be in conflict with law as also enquiry that. may be carried by the Juvenile Justice Board regarding child in conflict with law. It also provides for preliminary assessment in cases of heinous offences by the Board. While Section 17 provides that the order that may be passed regarding a child not found to be in conflict with law, Section 18 makes provision with regard to order that may be passed in respect of a child found to be in conflict with law. Powers of Children's Court constituted under Clause 20 13 of sub section (2) have been provided in Section 19. In the scheme of the Act, there is no provision specifically dealing with the grant of anticipatory bail to a ClCL but Section 12 makes special provision with regard to grant of bail to a child alleged to be in conflict with law. Section 12 being relevant, is extracted hereinbelow:-
12. Bail to a person who is apparently a child alleged to be in conflict with law--L11 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 shall not be so released if there appears reasonable grounds mwtgwgglgekving that the release is likely to bring that person into association with w. Winal or expose the said person to moral, physical or 'a\;\. . .
or the person's release would defeat the ends of Justice afing been apprehended is not released on bail under *ffiei'er--incharge of the police station, such officer shall only in an observation home in such manner as ei§oerson Can be brought before a Board.
\ \ // Q) When such pe Board, it shall ma:
not released on bail under sub--section (1) by the , der sending him to an observation home or a place of y be, for such period during the pendency of the inquiry order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail.
Sub section (1) of Section 12 as aforementioned, clearly provides that in a case where a child is alleged to have committed bailable or non--bailable offences and is apprehended or detained by the police or appears or brought before the Board, then such person, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being force, be released on bail with or without surety or placed under the supervision of a Probation Officer or under the care of any fit person. The proviso also carves 14 out the circumstances in which, the child is in conflict with law, may not be released on bail.
20. The provision "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)" clearly reflects legislative intention of giving overriding effect to the provisions for grant of bail to a child, who is alleged to be in conflict with law. This provision, however, 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. Therefore, the provision contained in Section 12, which overrides the provision contained in the Code of Criminal Procedure, Xis'skx committed bailable or non-bailable offences," The overriding effect of the provision is in respect of the provision with regard to bail dealing with only post arrest situation.
Some other provision contained in Chapter IV indicate overriding effect given to the provisions of Act of 2015 over the provisions of general application contained in the Code of Criminal Procedure, 1973, those sections are Section 22 & 23, which are extracted as below:-
1522. Proceeding under Chapter Vlllofthe Code of Criminal Procedure not to apply against child.-- Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any preventive detention law for the time being in force, no proceedings shall be instituted and no order shall be passed against any child under Chapter VIII of the said Code.
23. No joint proceedings of child in conflict with law and person not a child---(1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, there shall be no joint proceedings of a child alleged to be in conflict with law, with a person who is not a child.
(2) If during the enquiry by the Board or by the Children's Court, the person alleged to be in conflict with law is found that he is not a child, such person shall not be tried along with a child.
21. In the matter of removal of disqualification on the findings of offences, provisions have been made in Section 24 & 26 of the Act of 2015 t, :""'."'*""\T\§\\s\w contained in the Code of Criminal Procedure, 1973 or Etiprocedure in relation to children in conflict with 2;:
\ of Act of 2015 reveals that in respect of certain §5een given to the provisions contained in that / / However, neither in any of the provision'Contained in Chapter IV or any part of enactment of the Act of 2015, there is any provision which either expressly or by necessary implication excludes the applicability of the provision of grant of anticipatory bail, generally provided under Section 438 of the Code of Criminal Procedure, 1973. In fact, the Act of 2015 does not make out any special provision of grant of anticipatory in respect of a child in conflict with law. Section 103 of Act of 2015, on the other hand, provides application of the procedure laid down in the Code of Criminal Procedure, 1973, in following manner:-16
103. Procedure in inquiries, appeals and revision proceedings.--(1) Save as otherwise expressly provided by this Act, a Committee or a Board while holding any inquiry under any of the provisions of this Act, shall follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1973 (2 of 1974) for trial of summons cases.
(2) Save as otherwise expressly provided by or under this Act, the procedure to be followed in hearing appeals or revisions proceedings under this Act shall be, as far as practicable in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
22. 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 investigated, enquired into, tried and other wise dealt with but subject to any other enag", ent for the time being in force, regulating the enquiring into, trying or otherwise dealing with :\;
.\, .\, :\.;
e§e no special provisions have been made with » sistent or derogative with the provisions and statutory scheme of the Act of 2015, shall be applicable.
23. 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 17 provided in given provision, which have been referred to hereinabove.
24. 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 vs. Regional Transport Authority and another, AIR 1966 SC 1318 and South India Corporation (P) Limited vs. 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 of 2015 in eneral and provisidgs of Section 12 of the Act of 2015 in particular, ::3 :5 :2 :5 '~= 2:: N \1 juvenile (child as defined under the Act of N / //// / , wetfigbstante clause in Section 12 of the Act of 2015, excludes all the provisions relating to bails and bonds contained in Chapter XXXlll or has overriding effect of limited application, has to be decided by application of well settled principles relating to interpretation of non obstante clause finding place in a statute.
As early as in the case of Aswini Kumar Ghose and another vs. Arabinda Bose and another, AIR 1952 SC 369, Their Lordships in the Supreme Court laid down the fundamental proposition of law in this regard. It was held that the provision containing non obstante clause should first be 18 ascertained what the enacting part of the Section provides on a fair construction of the words used according to their natural and ordinary meaning and the non obstante clause is to be understood as operating to set aside as no longer valid, anything contained in relevant existing clause, which is inconsistent with the new enactment. The clause beginning with "notwithstanding any thing contained" in some particular Act is ordinarily appended to Section in the beginning with a view to give the enacting part of the Section in case of conflict, an overriding effect over the provisions or the Act mentioned in the non obstante clause. In other words, the principle is that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it, will have its Mr-
//I*/ , Eporation (P) Limited vs. Secretary, Board of //////7 .1964 sc 207.
Revenue, Trivandrum, A! Moreover, the plitude of non obstante clause must be kept and the gtsratlve policy and it can be given effect to the extent, the .. -k\,\\\v ' x , Parliament intended and not beyond the same. Please see A. G. Varadarajulu and another vs. State of T.N. and others,(1998)4 SCC 231. While interpreting non obstante clause, the Court is required to find out the extent, to which, the legislature intended to give it overriding effect. Please see Central Bank of India vs. State of Kerala and others, 2009 (4) SCC 94. Such legislative intention could be gathered from the enacting clause or other related provisions in the Act. There may be cases when the non obstante clause does not refer to any particular provision which it intends to override but refers to the provisions of a statute generally. Please see A. G. Varadarajulu and another vs. State 19 of T.N. and others, (1998)4 SCC 231.
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 XXXlll relating to bails and bonds. Provisions relating to bails and bonds \mwmmwm. _ of Criminal Procedure, 1973 would be rendered inapplicable only to I [it that they are inconsistent with the provisions of qntai'ned in of 2015. There is no warrant for conclusion that My-
in Section 12 of the Act of 2015 completely v dy of applying for grant of anticipatory bail by a 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 20 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 wwxfwwwwm us IV h'fimegted in the provision itself. There is no justification for fl if'patory bail by a CICL. The Act of 2015 is .\.' M7- 02/, anticipatory bail. Therefore, in view of the I?
§'-:
.. g /// of the Code of Criminal Procedure, 1973, the available to CICL, who is apprehending arrest. .
25. It is also relevant to mention here that the provision contained in Section 4(2) is of vide sweep, which not only talks of investigation, enquiry, trial but also uses phrase "otherwise dealt with". The words "othenNise" indicates that the expression "dealt with" is comprehensive and that the investigation, enquiry or trial are some aspects of dealing with the offences as held by the Supreme Court in the case of Delhi Administration vs. Ram Singh, AIR 1962 SC 63. Therefore, as long as the provision relating to bails and bonds as contained in the Code of Criminal Procedure, 1973 are not inconsistent with the statutory l\ l l l l l 21 scheme of the Act of 2015, in particular and Section 12 thereof in particular, there is no reason to hold that statutory remedy of applying for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 is not available to CICL.
26. There are large number of special enactments dealing with offences under those Acts which contain special procedure. Consistency of view has been that when there is no conflict between the provisions of Special Act and the Code and where the Special Act is silent, the procedure prescribed under the Code of Criminal Procedure, 1973 shall apply. In the case of V. K. Puri vs. GB], 2007 Cr.L.J. 2929, it was held that the Prevention of Corruption Act, 1988 \\\\\\\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\\\\ .
W'Werrides the provision of general law viz the Code of ; t when the matter is not covered by the Prevention Act, in of sub section (3) of Section 5 of the Act, the ////// nfiinal Procedure, 1973 shall clearly be applicable evention of Corruption Act, 1988 will not operate provision of Section 178 of the Code of Criminal In the case of The Superintendent of customs, C.I.U. Kochin vs. P. K.
27. Umerkutty and others, 1983 Cr.L.J 1860 (Kerala), it was held that a person arrested and produced by a Custom Officer before the Magistrate on suspicion of commission ofoffence under Section 135 & 104 of the Customs Act, 1962, may be released on bail under Section 437 of the Code of Criminal Procedure, 1973.
28. The view taken by the learned Single Judge in the case of Preetam Pathak (supra) that a CICL is not entitled to maintain application under Section 22 438 of the Code of Criminal Procedure, 1973, in the absence of specific provision under the Act of 2000, based on the premise that apart from Section 12 of the Act of 2000, there is no other provision in the Act of 2000 like Section 438 of the Code of Criminal Procedure, 1973 giving powers to the Board to grant anticipatory bail to a ClCL and thus, power and jurisdiction to grant anticipatory bail has not been conferred to Juvenile Justice Board, and therefore, the provision contained in Section 438 of the Code of Criminal Procedure, 1973 cannot be exercised either by this Court or by the Court of Sessions to grant anticipatory bail to the ClCL by virtue of provision contained in Section 6(2) of the Act of 2000. Reference to the Act of 2000, which is now \\\\\\\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\.\\\\ .
:er, the provision contained in Section 12 of the N // .\, :\.' §5 Act of 2015 are pari mater/a which have been Madhya Pradesh, 2014 (IV) MPJR 49, upon careful reading, do not lay down proposition that a ClCL does not have the remedy of applying for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 by virtue of non obstante clause contained in Section 12 of the Act of 2015 or any other provision contained under the Act of 2015.
29. In the case of Kapil Durgawani, the issue with regard to maintainability of application for grant of anticipatory bail arose in the peculiar circumstance where the accused, a ClCL was not only alleged to have committed offence under the Indian Penal Code but also under the Scheduled Caste/Scheduled 23 Tribes (Prevention of Atrocities) Act, 1989. It was held that application for grant of anticipatory bail would not be maintainable. In fact, in that case, the Court dealt with the issue as to whether the Juvenile Justice Board would have jurisdiction to grant anticipatory bail. In this context, it was held that the Board would have no jurisdiction to consider the application for grant of anticipatory bail.
In the case of Sandeep Singh Tomar (supra), the Court was dealing with scope and ambit of Section 12 of the Act of 2000 and it was held that it was not related to concept of anticipatory bail and that it would not come to the aid of of Chhattsgarh, which was not (brought to the notice of the Court in the case of S: ~ «
30. In view of above consideration made by us hereinabove, the aforesaid decision in the case of Mohan (supra) to the extent it holds applicability of provision under Section 438 'of the Code of Criminal Procedure, 1973 in the matter of a ClCL,is an accord with the view, which we have taken hereinabove. We make it clear that we are not deciding the issue with regard to applicability of Section 439 of the Code of Criminal Procedure, 1973 in respect of a ClCL, as it is outside the scope of reference in the present case.
31. In the result, we answer the reference, as below:-
"The application for grant of anticipatory bail under Section 438 of the 24 1 Code of Criminal Procedure, 1973 at the behest of CICL before the High Court or the Court of Sessions is maintainable under the law and the said remedy is not excluded by operation of Section 12 of the Act of 2000 or Section 12 of the Act of 2015."
This bail application be posted before the appropriate Bench as per roster.
I Sdl- Sdl- _ Manmdra Mohan Shrivastava ' GOUtam Bhadu"
'Judge Judge ' \\ 'Mg/ v {2' \ . t 11111111111 H x