Allahabad High Court
Aman Pathak vs State Of U.P. on 24 October, 2019
Author: Vipin Sinha
Bench: Vipin Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 51 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45086 of 2019 Applicant :- Aman Pathak Opposite Party :- State of U.P. Counsel for Applicant :- Ran Vijay Singh,Shabana Nizam Counsel for Opposite Party :- G.A. Hon'ble Vipin Sinha,J.
Heard learned counsel for the applicant, and learned A. G. A. for the State.
The present anticipatory bail application has been filed by the applicant in Case Crime No. 364 of 2019, under Sections 376, 406, 506 IPC and section 3/4 POCSO Act PS Cholapur District Varanasi with the prayer to grant anticipatory bail to the applicant.
I have perused the FIR as well as the order by means of which the anticipatory bail application has been rejected by the court below.
It has very fairly been informed that the applicant happens to be a minor aged about 15 years.
It has been the consistent legation position that the anticipatory bail application on behalf of the minor is not maintainable. The law in this regard is to the effect that "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 nonbailable 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 438of 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."
Reference may also be had to a judgment rendered in the case of Satendra Sharma v. State of Madhya Pradesh MCRC No. 4183 of 2014, dated 8.7.2014, wherein it has been categorically held that "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."
Reference may also be had to an order passed by a Division Bench of the Madras High Court in K. Vignesh v. State (Criminal Original Petition No. 22361 of 2015 decided on 27.4.2017) wherein the Division Bench was referred a question in the following term:
"Whether an application seeking anticipatory bail under Section 438 of the Code of Criminal Procedure at the instance of a juvenile in conflict with law in terms of the Juvenile Justice (Car and Protection of Children) Act, 2000 is maintainable before the High Court or before the Court of Sessions?"
Aforesaid question was answered by the Division Bench in the following terms:
"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."
Learned Single Judge of High Court of Chhattisgarh by a decision rendered in the case of Preetam Pathak v. State of Chhattisgarh reported in 2014 SCC OnLine Chh 125 has clearly held that "a juvenile is not entitled to maintain application under Section 438 Cr.P.C. in absence of specific provisions in the Act, 2000" and with the said observation the 438 Cr.P.C. application was dismissed by the learned Single Judge.
In view of the aforesaid facts and circumstances, the present anticipatory bail application is not maintainable and accordingly, the application for anticipatory bail is rejected as not maintainable, as it is not being disputed that the applicant is a minor.
Order Date :- 24.10.2019 Kuldeep