IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION.
CRM No. 2739 of 2021
(Appellete Side)
Suhana Khatun & Others vs State Of West Bengal
DAT 20 January, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION.
CRM No. 2739 of 2021
In Re: An Application for anticipatory bail under section 438 of the Code
of Criminal Procedure filed in connection with Raghunathganj Police
Station case no. 12 of 2021 dated 07.01.2021 relating to offences under
Section 341/325/326/307/302/34 of the Indian Penal Code.
Let us first deal with the judgments which have held an application for anticipatory bail at the instance of a child in conflict with law to be maintainable.
15.1.In the case of Miss A versus State of M.P reported in ILR (2019) MP 662 the Madhya Pradesh High Court held that no provision in the Act of 2015, either expressly or by necessary implication, excludes applicability of Section 438 of the Code which provides for grant of anticipatory bail. In the absence of any special provision dealing with grant of anticipatory bail to a juvenile/CICL, the provisions contained in the Code regarding anticipatory bail shall be applicable. The Act of 2015 even otherwise does not exclude general application of the Code, therefore, it cannot be inferred that the legislature intended to give overriding effect to the statutory scheme of the Act of 2015 over the provisions of general application contained in the Code.
15.2. In its decision in the case of Birbal Munda & Ors versus The State of Jharkhand reported in Manu/JH/1400/2019, the Jharkhand High Court has held an application under section 438 of the Criminal Procedure Code to be maintainable at the instance of a child in conflict with law on two fold score; firstly, that the non-obstante clause appearing in section 12 of Juvenile Justice (Care and Protection) Act, 2015 does not take away various provisions of bail or anticipatory bail envisaged in the Criminal Procedure Code and secondly apprehending means arrest of a person and such apprehension curtails the personal liberty of a person. 15.3. Similarly, the Chhattisgarh High Court in its decision in Sudhir Sharma versus State of Chhattisgarh reported in 2017 SCC Online Chh 1554 held the application for grant of anticipatory bail under section 438 of the Criminal Procedure Code maintainable at the behest of a child in conflict with law on the ground that the said remedy is not excluded by operation of section 12 of Act of 2000 or section 12 of Act, 2015. 15.4.Further in its decision in Mr X (Prashob), S/o Baby V.M versus State of Kerala reported in 2018 (3) RCR (Cri) 327 the Kerala High Court held that the provisions contained in section 12(1) does not take away the jurisdiction of High Court or Court of Session under section 438 of the Code even by implication and the provision of anticipatory bail is not expressly excluded and merely for reason that the Act provides for apprehending a child in conflict with law and not for arresting him, it cannot be held that the application under section 438 of Code by him is not maintainable.
15.5. In its judgment in the case of Krishan Kumar Minor thrugh his mother versus State of Haryana reported in 2020 (3) RCR (Cri) 180 the Punjab & Haryana High Court held the application for grant of anticipatory bail under section 438 of the Criminal Procedure Code to be maintainable at the behest of a child in conflict with law on the ground that no inference can certainly be drawn that the legislature intended to debar a juvenile from seeking relief of pre-arrest bail and if it was so, then specific provision in that regard should have been there.
15.6. The Gujrat High Court in its decision in Kureshi Irfan Hasam bhai thro Kureshi Kalubhai Hasambhai versus State of Gujarat reported in 2021 (O) AIJEK-HC-243111held the application for anticipatory bail at the instance of a child in conflict with law to be maintainable on the score that the word ‘apprehension’ in section 10 of the Act, 2015 is at par with and synonymous with ‘arrest’ used in section 438 of the Code and further the Act of 2015 does not expressly bar application of section 438 of the Code.
15.7.Upon going through the aforesaid judgements of the different High courts it is found that in Birbal Munda & Ors versus The State of Jharkhand (supra) and Kureshi Irfan Hasambhai thro Kureshi Kalubhai Hasambhai versus State of Gujarat (supra) it is held that the word ‘apprehension’ in section 10 of the Act, 2015 is at par with and synonymous with ‘arrest’ used in section 438 of the Code. Further in all the aforesaid decisions it has been held that as the Act of 2015 does not expressly bar application for anticipatory bail hence the provisions of section 438 of the Code for anticipatory bail are applicable in case of a child in conflict with law. We have already dealt with the aspect that the apprehension appearing in the 2015 Act in that sense is not an incarceration or detention by the police as normally understood. Moreover, we are of the considered view that although the Act of 2015 does not expressly bar application for anticipatory bail, yet that does not ipso facto create any right in a child in conflict with law to seek anticipatory bail for the reason that the 2015 Act is a compendious and comprehensive code laying in place a separate and distinct procedure liable to be followed in case of apprehension or detention of a child in conflict with law including special safeguards in respect of apprehension of a child in conflict with law. Further the legislature in its wisdom has not expressly barred the applicability of section 438 of the Code as the 2015 Act does not provide for detention of the child in police custody or jail and there is no anticipation of arrest. Accordingly we most respectfully cannot agree with such decisions of the aforesaid High Courts.
15.8. In the decision of a co-ordinate bench of this court in CRM 5419 of 2021 [Saud (minor) represented by his father Morful Sk] as relied upon, the Court granted anticipatory bail to the minor petitioner. However, no issue regarding maintainability of an application for anticipatory bail at the instance of a minor was considered in the said decision.
16. Now we shall proceed to deal with the judgements which say that the application for anticipatory bail at the instance of a child in conflict with law is not maintainable.
16.1.In CRM 10177 of 2016, Jiban Mondal, In Re reported in 2017 SCC Online Cal 1919 a Co-ordinate Bench of this Court held that an application under section 438 of the Code at the instance of a minor is not maintainable as from the sections dealing with the subject it is clear that a child in conflict with law is to be placed under charge of Special Juvenile Police Unit or designated Child Welfare Police Officer and has to be produced before the J.J Board within 24 hours.
16.2. In Krishna Garai & Ors versus The State of West Bengal reported in (2016) 2 C Cr LR (Cal) 561 a Co-ordinate Bench of this Court held that the Act of 2000 is a special Act carved out from the 1973 Act and meant especially for juveniles and therefore will prevail over the 1973 Act and an application for anticipatory bail by a minor is not maintainable. 16.3.In CRM 2206 of 2015, Taimina Bibi reported in 2015 SCC Online Cal 4299 a Co-ordinate Bench of this Court held that as the petitioner no.5 in that case was below the age of 18 years, her case be considered by the concerned Juvenile Justice Board and not by them. 16.4. The Allahabad High Court in its decision in Shahab Ali (minor) and another versus State of Uttar Pradesh reported 2020 CriLJ4479 held that the provisions of Section 438 are impliedly excluded after registration of FIR and section 10 of the 2015 Act comes to play and hence an application under section 438 of the Criminal Procedure Code at the behest of a juvenile is not maintainable.
16.5.In the decision in K.Vignesh versus State reported in 2017 SCC Online Mad 28442 the Madras High Court held that from the provisions of the 2015 Act it can well be understood without any doubt whatsoever that a child in conflict with law cannot be arrested and thus there cannot be apprehension of arrest of the child and hence application for anticipatory bail at the instance of a minor is not maintainable. 16.6.The Madhya Pradesh High Court in its decision passed in Kamlesh Gurjar versus State of M.P reported in 2020 (1) RCR (Cri) 434 held that in the absence of specific provisions in the Act of 2015, a juvenile is not entitled to move an application under section 438 of the Criminal Procedure Code, 1973.
16.7.At the outset we accept and concur with the observation of a co- ordinate Bench of this Hon’ble court made in Krishna Garai & Ors versus The State of West Bengal (supra) that the special law will prevail over the 1973 Code and thus the Juvenile Justice Act has an overriding effect over any other law for the time being in force. Hence, an application for anticipatory bail at the instance of a minor is not maintainable. This court further in Jiban Mondal, In Re (supra) and Taimina Bibi (supra) held the an application for anticipatory bail at the instance of a minor to be not maintainable, due to statutory obligation envisaged in the Act and we respectfully agree with such observations. We also agree with the observations of the courts made in Shahaab Ali (minor) and another versus State of Uttar Pradesh (supra) regarding exclusion of the provisions of Section 438 of the Code upon registration of FIR and in K.Vignesh versus State (supra) making an application for anticipatory bail not maintainable at the instance of a minor as there is no apprehension of arrest of a child in conflict with law. As regards Kamlesh Gurjar versus State of M.P (supra) we are of the considered view that absence of provisions for anticipatory bail in the 2015 Act cannot be the only ground of disentitling a minor from seeking anticipatory bail.
17. Learned Advocate appearing for the petitioners placing reliance on the decision of Hon’ble Apex Court in Shilpa Mittal versus State (NCT of Delhi) (supra) argued that the purpose of the Act of 2015 is to protect a juvenile /child in conflict with law and therefore when two views are possible, the one which favours the child in conflict with law should be adopted. In the aforesaid decision the Hon’ble Apex Court had the occasion to deal with the category of offences under the Juvenile Justice Act and observed that where the offence is not covered under section 2(33) of the Act the same should be treated as ‘serious offence’ within the meaning of section 2(54) till the Parliament takes steps to clarify the position and while dealing with the said aspect observed that when two views are possible, the one that would favour the child in conflict with law should be preferred. In the case in hand we are dealing with maintainability of an application for anticipatory bail which cannot be equated with the legal question that was before the Hon’ble Apex Court in the aforesaid decision and as such the ratio does not apply in the present case.
18. It is found that there are various safeguards provided to a child in conflict with law in the event the child is apprehended by the police. Taking into consideration the safeguards provided under the 2015 Act and in the light of the legal position that a child in conflict with law cannot be arrested, the question of granting bail in anticipation of arrest of a child in conflict with law does not arise at all. In the 2015 enactment the legislature did not, consciously, empower the police to arrest a child in conflict with law. Accordingly, we are of the considered view that an application for anticipatory bail under section 438 of the Criminal Procedure Code at the instance of a child in conflict with law is not maintainable.