Madhya Pradesh High Court
Ankesh Gurjar @ Ankit Gurjar vs The State Of Madhya Pradesh on 4 November, 2020
Equivalent citations: AIRONLINE 2020 MP 1862
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2112 of 2020
Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P.
Through Video Conferencing
Gwalior, dated: 04-11-2020
Shri S.S. Kushwaha, Counsel for the applicant.
Shri Vishal Tripathi, Panel Lawyer for the State
This Criminal Revision under Section 102 of Juvenile Justice
(Care and Protection of Children) Act, 2015 has been filed against the
rejection of the application for grant of anticipatory bail.
The applicant apprehends that he can be apprehended in crime
No. 93/2020 registered by Police Station Dabra Dehat, Distt. Gwalior
for offence under Sections 376(2)(N), 506,34 of I.P.C. and under
Sections 3(1)(w)(ii), 3(2)(v) and 3(2)(va) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
It is submitted that the applicant is a juvenile, and his
application for grant of anticipatory bail was rejected by the Juvenile
Justice Board. It is submitted by the Counsel for the applicant, that
so far as the question as to whether an application for grant of
anticipatory bail is maintainable or not is concerned, a co-ordinate
bench of this Court by order dated 22-10-2020 passed in the case of
CCL (Child in conflict with law) Vs. State of M.P. in M.Cr.C. No.
41359 of 2020 has referred the matter to the Larger Bench. It is
further submitted that since, the co-ordinate bench has also granted
interim protection, therefore, the prayer for grant of interim bail may
be considered.
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HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2112 of 2020
Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P.
Considered the submissions made by the Counsel for the
applicant.
Although the question as to whether the provisions of Section
438 of Cr.P.C. would apply or not is already under reference, but one
more question would arise in the present case, that whether the bar as
contained under Section 18 and 18A of S.C./S.T. (Prevention of
Atrocities) Act, 1989 (In short Act, 1989) would also apply or not?
A co-ordinate bench of this Court in the case of Kapil
Durgayani Vs. State of M.P. by order dated 6-8-2010 passed in
M.Cr.C. No. 3888 of 2010 (Principal Seat) has held as under :
11..........It it true that the 'Juv. Act' has been enacted
for the benefit of juvenile delinquents and, therefore,it
has an overriding effect over the 'SC/ST Act', but
when the words used in Section 12 of the 'Juv. Act',
are considered in juxtaposition with the wordings of
Section18 of 'SC/ST Act', it would be clear that the
scope of the application of both the provisions is
different, therefore, provisions of Section 12 of the
'Juv. Act' can not be held to have any overriding effect
over the provision of Section 18 of the 'SC/ST
Act'..........
(Underline supplied)
* * * *
13. I have already discussed that in deciding bail
application scope of appreciation of evidence is much
limited. In the present circumstances and in view of
the facts of the case, as mentioned in F.I.R., it can not
be held that the offence alleged against the applicant
does not fall within the purview of 'SC/ST Act'.
14. In view of the aforesaid discussion, this
application is disposed off with a observation that the
applicant if so advised may appear before the
appropriate Board constituted under the Juvenile
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HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2112 of 2020
Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P.
Justice (Care and Protection of Children) Act, 2000 as
per provisions of Section 12 of the 'Juv. Act' and apply
for bail according to law.
The Orissa High Court in the case of Antaryami Patra Vs.
State of Orissa reported in 1993 Cr.LJ 1908, has held as under :
7. At the outset it is to be noticed that the N.D.P.S. Act
is a penal statute and, therefore, has to be construed
strictly. It is a cardinal principle of construction that a
penal statute should never be construed so as to
narrow the words of the statute to the exclusion of
cases which those words in their ordinary acceptation
would comprehend. The Judicial Committee in The
Gauntlet, (1872) LR PC 184, stated :-
"No doubt all penal statutes are to be construed
strictly, that is to say, the court must see that the thing
charged as an offence is within the plain meaning of
the words used, and must not strain the words on any
notion that there has been a slip, that there has been a
casus omissus, that the thing is so clearly within the
mischief that it must have been intended to be
included, and would have been included if thought of."
When two Acts are enacted in the same field, one
dealing with general law and the other dealing with the
special law, then in case of inconsistency between the
two, the special law will prevail. When two
enactments are passed one later than the other, then it
becomes a business for the Courts to consider the
exact effect of the latter enactment upon the earlier
enactment to see whether they can wholly or in part
stand together. In Re Williams, (1887) 36 Ch. D. 573,
North J., had observed (at page 578) :-
"The provisions of an earlier Act may be revoked or
abrogated in particular cases by a subsequent Act,
either from the express language used being addressed
to the particular point, or from implication or inference
from the language used."
In the case of statute passed about the same time, the
question may arise whether they can be read together
and the later taken as explaining, and not repealing,
the earlier Act. Where two Acts are inconsistent or
repugnant, the later will be read as having impliedly
repealed the earlier, the principle being the latest
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HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2112 of 2020
Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P.
expression of the will of Parliament must always
prevail. The aforesaid rule was indicated in the case of
Goodwin v. Phillips, (1907) 7 CLR 1. To determine
whether a later statute repeals by implication an
earlier, it is necessary to scrutinise the terms and
consider the true meaning and effect of the earlier Act.
Where one statute enacts something in general terms,
and afterwards another statute is passed on the same
subject, which, although expressed in affirmative
language, introduces special conditions and
restrictions, the subsequent statute will usually be
considered as repealing by implication the former, for
affirmative statutes introductive of a new law do imply
a negative. This was what stated in the case of
Harecurt v. Fox, (1693) 1 Show, 506. The extent of
which special Acts are held to override the general law
or create exception depends upon the terms of the
statute in question.
This being the position of law, no doubt, S. 18 of the
Juvenile Justice Act made a general provision with
regard to the right of a juvenile delinquent to be
released on bail irrespective of the offence committed
by him, but the N.D.P.S. Act is a special provision and
in that special statute a further special provision has
been made with regard to the pre-conditions to be
satisfied for an accused being released on bail.
Therefore, the said special provision of the special
statute, namely S. 37 of the N.D.P.S. Act, would
override S. 18 of the Juvenile Justice Act and,
therefore, even in case of a juvenile delinquent
involved in commission of an offence under N.D.P.S.
Act, no bail can be granted until and unless the
provisions of S. 37 of the N.D.P.S. Act are complied
with. Then again, no doubt, the N.D.P.S. Act was
enacted earlier in point of time than the Juvenile
Justice Act, but the special provision in relation to the
bail by way of insertion of S. 37 in the N.D.P.S. Act
came into the statute book by Act 2 of 1989 and the
Statement of Objects and Reasons of the said
amendment indicates that the Parliament thought if
appropriate to make stringent provision in respect of
an accused being released on bail to meet the
challenge arising from drug trafficking. Therefore, the
said latter provision contained in S. 37 of the N.D.P.S.
Act would override the earlier general provision of S.
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HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2112 of 2020
Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P.
18 of the Juvenile Justice Act and consequently, a
juvenile delinquent being accused of commission of an
offence under the N. D. P. S. Act cannot be released
unless the pre-conditions I contained in S. 37 of the
N.D.P.S. Act are complied with. I am, therefore, unable
to accept the contention of Mr. Dhal appearing for the
petitioner.
The co-ordinate bench of this Court in the case of Sanjay
Kumar Giri Vs. State of M.P., by order dated 1-12-1999 passed in
M.Cr.C. 6492 of 1999 has relied upon the judgment passed by the
Orissa High Court in the case of Antaryami Patra (Supra).
Thus, the bar as contained under Section 18 and 18A of Act,
2019 would apply and the application for grant of anticipatory bail
would not be maintainable.
However, the Supreme Court in the case of Union of India Vs.
State of Maharashtra reported in (2020) 4 SCC 761 has held as
under :
57. The guidelines in paras 79.3 and 79.4 appear to
have been issued in view of the provisions contained
in Section 18 of the 1989 Act; whereas adequate
safeguards have been provided by a purposive
interpretation by this Court in State of M.P. v. Ram
Kishna Balothi. The consistent view of this Court that
if prima facie case has not been made out attracting
the provisions of the SC/ST Act of 1989 in that case,
the bar created under Section 18 on the grant of
anticipatory bail is not attracted. Thus, misuse of the
provisions of the Act is intended to be taken care of
by the decision above. In Kartar Singh, a Constitution
Bench of this Court has laid down that taking away
the said right of anticipatory bail would not amount to
a violation of Article 21 of the Constitution of India.
Thus, prima facie it appears that in the case of misuse
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HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2112 of 2020
Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P.
of provisions, adequate safeguards are provided in the
decision mentioned above.
Thus, even if it is held that the bar as contained under Section
18 and 18A of Act, 1989 would apply, but still the prayer for
anticipatory bail can be considered if no prima facie case under Act,
1989 is made out.
However, another question would also arise i.e., in absence of
any provision for anticipatory bail in Act, 2015, whether Section
12(1) of Act, 2015 would be a guiding factor for deciding the
application filed under Section 438 of Cr.P.C. or not?
Section 12 of Act, 2015 deals with Bail to a person who is
apparently a child alleged to be in conflict with law. Section 12(1) of
Act, 2015 reads as under :
12. Bail to a person who is apparently a child
alleged to be in conflict with law.-- (1) When any
person, who is apparently a child and is alleged to
have committed a bailable or non-bailable offence, is
apprehended or detained by the police or appears or
brought before a Board, such person shall,
notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974) or in any other
law for the time being in force, be released on bail
with or without surety or placed under the supervision
of a probation officer or under the care of any fit
person:
"Provided that such person shall not be so released if
there appears reasonable grounds for believing that the
release is likely to bring that person into association
with any known criminal or expose the said person to
moral, physical or psychological danger or the
person's release would defeat the ends of justice, and
the Board shall record the reasons for denying the bail
and circumstances that led to such a decision."
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HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2112 of 2020
Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P.
Thus, it is clear that bail to a child in conflict with law can be
rejected only when his case is covered by proviso to Section 12(1) of
Act, 2015.
The Rajasthan High Court in the case of Neeraj Vs. State of
Rajasthan and another reported in 2019 SCC online Raj 3911 has
held as under :
7. The language of Section 12 of the Act of 2015
conveys the intention of the Legislature to grant bail to
the juvenile, irrespective of nature or gravity of the
offence, alleged to have been committed by him and
bail can be denied only in the case where there appears
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
ends of justice.
The Allahabad High Court in the case of Shyamu (Juvenile)
Vs. State of U.P. in Cr.R. No. 4743 of 2019 by order dated 7-8-
2020 has held as under :
11- The rule in Section 12(1) of the Act is in favour of
bail always to a juvenile/ child in conflict with law
except when the case falls into one or the other
categories denial contemplated by the proviso. It is not
the rule about bail in Section 12 of the Act that in case
a child in conflict with law is brought before the Board
or Court, his case is not to be seen on merits prima
facie about his complicity at all for the purpose
granting him bail; and all that has been done is to see
if his case falls is one or the other exceptions, where
he can be denied bail. The rule in Section 12
sanctioning bail universally to every child in conflict
with law presupposes that there is a prima facie case
against him in the assessment of the Board or the
Court based on the evidence placed at that stage. It is
where a case against a child in conflict with law is
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HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2112 of 2020
Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P.
prima facie made out that the rule in Section 12(1) of
the Act that sanctions bail as a rule, except the three
categories contemplated by the proviso comes into
play. It is certainly not the rule, and, in the opinion of
the Court cannot be so, that a case on materials and
evidence collected not being made out against a child
at all, his case has to be tested on the three parameters
where bail may be denied presuming that a prima facie
case is constructively there. Thus, it would always
have to be seen whether a case prima facie on merits
against a child in conflict with law is there on the basis
of material produced by the prosecution against him. If
it is found that a prima facie case on the basis of
material produced by the prosecution is there that
would have led to a denial of a bail to an adult
offender, in that case also the Rule in Section 12(1) of
the Act mandates that bail is to be granted to a
juvenile/ child in conflict with law except where his
case falls into any of the three disentitling categories
contemplated by the proviso.
12- In the opinion of this Court, therefore, the
perception that merits of the case on the basis of prima
facie evidence is absolutely irrelevant to a juvenile's
bail plea under the Act would not be in conformity
with the law. The catena of decisions that speak about
merits of the case or the charge against a juvenile
being irrelevant, proceed on facts and not an
assumption that a case on merits is made out, and, not
where the case is not at all made out prima facie. It is
not that a child alleged to be in conflict with law
against whom there is not iota of evidence to connect
him to the crime would still have bail denied to him
because his case may be placed in or the other
disentitling categories under the proviso to Section
12(1) of the Act. If this kind of a construction were to
be adopted it might expose the provisions of Section
12(1) of the Act to challenge on ground of violating
the guarantee of equal protection of laws enshrined in
Article 14 of the Constitution. It is an enduring
principle that a construction that lends a statute to
challenge about its constitutionality should be
eschewed and one that saves and upholds its vires is to
be adopted. In this context the guidance of their
Lordships of the Hon'ble Supreme Court in Japani
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HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2112 of 2020
Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P.
Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC
394 may be referred to:-
"51. The matter can be looked at from different angle
also. Once it is accepted (and there is no dispute about
it) that it is not within the domain of the complainant
or prosecuting agency to take cognizance of an
offence or to issue process and the only thing the
former can do is to file a complaint or initiate
proceedings in accordance with law. If that action of
initiation of proceedings has been taken within the
period of limitation, the complainant is not responsible
for any delay on the part of the Court or Magistrate in
issuing process or taking cognizance of an offence.
Now, if he is sought to be penalized because of the
omission, default or inaction on the part of the Court
or Magistrate, the provision of law may have to be
tested on the touchstone of Article 14 of the
Constitution. It can possibly be urged that such a
provision is totally arbitrary, irrational and
unreasonable. It is settled law that a Court of Law
would interpret a provision which would help
sustaining the validity of law by applying the doctrine
of reasonable construction rather than making it
vulnerable and unconstitutional by adopting rule of
'litera legis'. Connecting the provision of limitation in
Section 468 of the Code with issuing of process or
taking of cognizance by the Court may make it
unsustainable and ultra vires Article 14 of the
Constitution."
This Court in the case of Shiv Kumar alias Sadhu Vs.
State of U.P. 2010 (68) ACC 616(LB) was pleased to
observe that the gravity of the offence is not relevant
consideration for refusing grant of bail to the juvenile
Therefore, even if it is held that application for anticipatory
bail is maintainable, but still unless and until a finding is recorded to
the effect, that prima facie no case is made out under Act, 1989,
JJB/Children's Court/High Court cannot grant anticipatory bail/
interim protection to the child in conflict with law. However, in the
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HIGH COURT OF MADHYA PRADESH
Cr.R. No. 2112 of 2020
Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P.
light of Section 12(1) of Act, 2015, if gravity of offence or the
allegations made against a child in conflict with law are not required
to be looked into while considering the prayer for anticipatory bail,
then, how the child in conflict with law would get over the bar as
contained under Section 18 and 18A of Act, 1989?
Under these circumstances, this Court is of the view that
interim protection can not be granted to the applicant. Accordingly,
prayer for interim bail is hereby rejected.
As the question of maintainability of application for
anticipatory bail is already under reference in view of the difference
of opinion, therefore, this Court is of the view that following
additional questions also require adjudication :
1.When there is no concept of custody, as a child in conflict with law is neither arrested nor sent to jail, then whether an application for grant of anticipatory bail would be maintainable?
2. In absence of provision for grant of anticipatory bail, whether the Court can legislate by providing for anticipatory bail?
3. Whether the Legislature has intentionally omitted the provision of Section 438 of Cr.P.C. in view of Section 12(3), and 24(1) of Act, 2015?
4. Whether a social verification report can be submitted by Probtation Officer, even in absence of detention/apprehension of a child in conflict with law?
5. Whether Section 12(1) of Act, 2015 would be a guiding factor for deciding the application for grant of anticipatory bail?
6. Whether the Juvenile Justice Board/Children's Court/High Court, can consider the nature of allegations to find out as to whether any prima facie case under Act, 1989 or any other statute like NDPS Act is made out or not?
11HIGH COURT OF MADHYA PRADESH Cr.R. No. 2112 of 2020 Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P. Accordingly, the office is directed to place this case before Hon'ble the Chief Justice for necessary orders.
(G.S. Ahluwalia) Judge ARUN KUMAR MISHRA Digitally signed by ARUN KUMAR MISHRA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, 2.5.4.20=51f931b13b82ad5df5aefb2200fa24abe6935164546dbcd5c17c43c78b5ee233, cn=ARUN KUMAR MISHRA Date: 2020.11.06 17:12:50 +05'30'