Madhya Pradesh High Court
Sohil Khan Sarparast vs The State Of Madhya Pradesh on 22 October, 2020
Author: Sheel Nagu
Bench: Sheel Nagu
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THE HIGH COURT OF MADHYA PRADESH
MCRC-41359-2020
[CCL (Child In Conflict with Law) Vs. STATE OF M.P.]
Gwalior, Dated : 22.10.2020
Shri V.K. Saxena, learned senior counsel with Shri Ayush
Saxena, learned counsel for the petitioner.
Shri Anand Sikarwar, learned Panel Lawyer for the State.
Matter is heard through video conferencing.
Petitioner has filed this first application u/S.438 Cr.P.C. for grant
of anticipatory bail.
Petitioner apprehends arrest in connection with offence
punishable u/S.452, 323, 294, 354, 34 of IPC registered as Crime
No.519/2020, by Police Station Gwalior, district Gwalior (M.P.).
Learned Panel Lawyer for the State opposed the application and
prayed for its rejection by contending that on the basis of the
allegations and the material available on record, no case for grant of
anticipatory bail is made out.
The petitioner appears to be a juvenile based on class 10 th
certificate which reveals his date of birth as 01.12.2002 as against the
date of incident being 11.09.2020.
Learned counsel for the petitioner submits that similarly placed
co-accused Madara Khan and Shahrukh have been extended benefit of
anticipatory bail by order dated 01.10.2020 in M.Cr.C.
No.36874/2020. It is submitted that on merits and the allegations
made, the case of petitioner is not different than the case of said two
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co-accused.
However, learned counsel for the State relied upon order dated
20.03.2019 passed by single bench (Indore) of this Court in M.Cr.C.
No.10345/2019 (Kamlesh Gurjar Vs. State of M.P.), holding that a
juvenile cannot avail the remedy of anticipatory bail u/S. 438 Cr.P.C.
Learned senior counsel Shri Saxena, on the other hand, submits
that the said decision in case of Kamlesh Gurjar (Supra) does not
appear to be laying down the correct law since the said verdict would
lead to a situation where the benefit of anticipatory bail would never
be available to a juvenile, which runs contrary to the beneficial and
rehabilitatory objectives behind the Juvenile Justice (Care and
Protection of Children) Act, 2015.
It appears that there is difference of opinion on the aspect of
availability of benefit u/s 438 Cr.P.C to a juvenile among different
High Courts, including a single bench of this Court in M.CrC.
No.47297/2018 (Miss A Vs. State of M.P.) decided on 07.12.2018,
having taken a view that the remedy of anticipatory bail u/s. 438
Cr.P.C is available to a juvenile u/s. 12 of the Juvenile Justice Act since
the same is not expressly excluded by Juvenile Justice Act.
A bare perusal of the decision in Kamlesh Gurjar (Supra)
reveals that the Single Bench did not consider the contrary view taken
earlier by a co-ordinate Bench of this Court in case of Miss A (Supra).
In view of above difference of opinion on the same subject of
availability or not of benefit of anticipatory bail to a juvenile u/S. 438
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Cr.P.C., it would be appropriate to refer the matter to Hon'ble the Chief
Justice for constituting appropriate Bench for resolving the
controversy.
Accordingly, the Registry is directed to forward the case to the
Principal Seat and for the sake of convenience, the following proposed
questions are framed:
(i) Whether the benefit of anticipatory bail u/s 438
Cr.P.C is available for a juvenile to be availed
while invoking Section 12 of Juvenile Justice Act ?
(ii) Whether denial of remedy of anticipatory bail u/s
438 to a juvenile would be abhorrent to the
beneficial and rehabilitatory object behind the
Juvenile Justice Act ?
(iii) Assuming that remedy of anticipatory bail is not
available to a juvenile, can Article 226 of
Constitution or Section 482 of Cr.P.C be invoked
seeking anticipatory bail to prevent the juvenile
from being remedy-less ?
(iv) Which among the two conflicting views of co-
ordinate Benches (both SB) i.e. in Kamlesh Gurjar
(Supra) and Miss A (Supra) lay down the correct
law ?
As regards the petitioner in present case, this Court is of
considered view that since the question of law has been referred for
ironing out the creases owing to difference of opinion between two
single Benches, this Court refrains from exercising it's powers u/S. 438
Cr.P.C but in the interest of justice invokes inherent powers available
to this Court u/S. 482 Cr.P.C to extend the benefit of anticipatory bail
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to the petitioner whose case does not appear to be different than the
case of other co-accused who has been granted bail.
It is hereby directed that in the event of arrest, the petitioner
shall be released on anticipatory bail on furnishing a personal bond in
the sum of Rs. 25,000/- (Rs. Twenty Five Thousand only) with one
solvent surety of the like amount to the satisfaction of the Arresting
Authority.
This order will remain operative subject to compliance of the
following conditions by the petitioner :-
1.The petitioner will comply with all the terms and conditions of the bond executed by him;
2. The petitioner will cooperate in the investigation/trial, as the case may be;
3. The petitioner will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be;
4. The petitioner shall not commit an offence similar to the offence of which he is accused;
5. The petitioner will not seek unnecessary adjournments during the trial; and
6. The petitioner will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.
7. The parents/guardian of the petitioner shall file a written undertaking with the trial Court of taking care of the petitioner during pendency of trial.
8. The Probationary Officer of the area where residence of 5 the petitioner is situated is directed to supervise the activities, conduct and behaviour of the petitioner/juvenile and submit monthly reports to the J.J. Board, which in turn shall take appropriate steps in accordance with law in case any of the reports is found to be amiss.
9. The petitioner as a Shiksha Swayamsevak shall render physical and financial assistance to government primary school situated nearest to residence of petitioner for ensuring hygiene and sanitation and for removing deficiencies of infrastructural amenities in the said school from the skill/resources of the petitioner.[;kfpdkdrkkz ,d f'k{kk lo;alksod ds :i esa vius fuokl ds fudv voflfkr ljdkjh izkfkfed fo|ky; esa lopnrk vksj vkjksx; dks lqfuf'pr djus ds fy, 'kkjhfjd ,oa forrh; lgk;rk iznku djsxk rfkk vius dks'ky o lalk/kuksa ls mdr fo|ky; esa volajpukred lqfo/kkvksa dh dfe;ksa dks nwj djsxka] The petitioner after selecting a particular Govt. Primary School shall inform about the same to the office of Gram Panchayat (in case of rural area) and/or Ward Officer of the concerned ward (in case of urban area), within whose territorial jurisdiction the said school is situated.
[;kfpdkdrkZ ,d fof'k"V ljdkjh Ldwy dk p;u djus ds i'pkr~ blds ckjs esa xzke iapk;r ds dk;kZy; ¼xzkeh.k {ks= ds ekeys esa½ vkSj@;k lEcaf/kr okMZ ds okMZ vf/kdkjh ¼'kgjh {ks= ds ekeys esa½ ftlds {ks=kf/kdkj esa mDr Ldwy vofLFkr gS] dks lwfpr djsxkA] It will be joint responsibility of Sarpanch and Secretary of said Gram Panchayat (in case of rural area) and/or Ward Officer of the concerned ward (in case of urban area) to preserve the said information provided by the petitioner. [;g lEcaf/kr okMZ ds okMZ vf/kdkjh ¼'kgjh {ks= ds ekeys esa½ vkSj@;k mDr xzke iapk;r ds ljiap vkSj lfpo ¼xzkeh.k {ks= ds ekeys esa½ dh la;qDr ftEesnkjh gksxh fd] ;kfpdkdrkZ }kjk iznRr lwpuk dks lajf{kr djsA] 6 The registry of this Court shall communicate this order through Legal Aid Officer, SALSA, Gwalior to the Collector, District Education Officer, Block Education Officer of the district/block concerned for information and compliance.
A copy of this order be supplied to the Legal Aid Officer, SALSA, Gwalior who is directed to communicate this order to the District Education Officer, Block Education Officer of the district/block concerned to verify as to whether petitioner has complied with condition No.9 or not and submit report once every month.
In case, report regarding condition No.9 is not filed or report is found to be wanting in any manner then Registry is directed to list this matter as PUD before appropriate Bench.
A copy of this order be sent to the Court concerned for information.
C.c. as per rules.
(Sheel Nagu) Judge Aman Digitally signed by Aman Tiwari Aman Tiwari DN: c=IN, o=High Court Of Madhay Pradesh Bench Gwalior, ou=all, 2.5.4.20=70c6eef55d043fbd523acacb7d1ef4b0609a37510b 8e1527bc41da9009c41f72, postalCode=474011, st=MADHYA PRADESH, cn=Aman Tiwari Date: 2020.10.24 19:31:24 -07'00'