Child in conflict with law under Juvenile Justice Act can file anticipatory bail plea under Section 438 CrPC: Bombay High Court

The Bombay High Court on Friday held that in absence of provisions governing grant of anticipatory bail under the Juvenile Justice (Care and Protection of Children) Act [JJ Act], a juvenile in conflict with law can file an anticipatory bail application under Section 438 of the Code of Criminal Procedure (CrPC) [Raman S/o. Prakash Mundhe and Anr. vs The State of Maharashtra]..A bench of Justices SV Kotwal and BP Deshpande observed that denying a juvenile in conflict with law an opportunity to exercise right of preferring an anticipatory bail application would be violative of Article 14 of the Constitution of India."As mentioned earlier, the Article 14 of the Constitution of India as well as Sections 3(ii) and 3(x) of the JJ Act give a valuable right to a child to be treated equally with others. A child defined under the JJ Act enjoys equal rights with other persons. Therefore, it would be in violation of all these principles and provisions to deny him an opportunity to exercise his right of preferring an application under Section 438 of the CrPC," it stated..This case was referred to a division bench after Justice Vibha Kankanwadi disagreed with the view taken by other single judges of the court and denied anticipatory bail to two siblings, aged 16 and 14.Senior advocate Rajendra S Deshmukh was appointed by the court to assist as amicus curiae. He supported the view that the application under Section 438 of the CrPC by a child in conflict with law was not maintainable. He referred to various sections of the JJ Act and stated that sections 10 and 12 of the JJ Act were a complete Code in itself and therefore, Section 438 of the CrPC was not available for a child in conflict with law. He highlighted that there was no specific provision in the JJ Act for anticipatory bail.Advocate Suvidh Kulkarni, on behalf of the applicants, drew the court's attention to the definition of the word "person" under the Indian Penal Code (IPC) and argued that a "child" as defined under the JJ Act would not be excluded from the word "person". He then underlined that Section 438 of the CrPC uses the word “any person” and therefore, it would mean that the provisions of Section 438 of the CrPC are available to any person including a child as defined under the JJ Act.Assistant Public Prosecutor AV Deshmukh stated that even though Article 14 of the Constitution of India provides for equality before law, in case of the JJ Act, there is a purposeful differentiation made for protection of children and therefore, reasonable classification was permissible for their benefit. He argued that since the word "arrest" did not appear in the JJ Act, no question of anticipatory bail under section 438 of CrPC arose as the provision speaks about grant of bail to person apprehending arrest. The Court noted that the CrPC uses the words arrest and apprehension interchangeably."It has to be noted that Section 3 (viii) of the JJ Act provides that adversarial or accusatory words are not to be used in the processes pertaining to a child. Keeping in mind the spirit of this principle, the word “arrest” is not used in connection with a child. The CrPC, in fact, uses the words “arrest” and “apprehension” interchangeably," the Court noted.Thereafter, referring to Deshkmukh's contention that Sections 10 and 12 of the JJ Act are complete codes in themselves, the Court explained that the provisions referred to post and not pre apprehension stage and could not be said to be in conflict with the provisions of Section 438 of the CrPC.It also agreed with Kulkarni's contention that the word person as defined under the IPC includes children as well."...as rightly submitted by Shri Kulkarni, learned counsel for the applicants. The definition of the word “person” mentioned in Section 11 of the IPC, is an inclusive definition. It does not exclude a child. Section 438 of the Cr.P.C. does not exclude a child from the word “person”. Therefore, there is no reason to deny the benefit of the provisions of Section 438 of the Cr.P.C. to a child, who is likely to be apprehended," it explained.Section 438 of the CrPC can be overridden only if the JJ Act provides for a procedure in the nature of Section 438, the Court underscored.Since there is no provision in the JJ Act which could operate in the field of Section 438, it held that provisions of Section 438 can operate in cases of children in conflict with law.It also stated that in cases where accusations were false or were made with an oblique motive, it would be a travesty of justice to keep the child away from the protection of parents and the child's usual environment."There is no reason why he should be deprived of such protection even for a single minute. At that stage application under Section 438 of the CrPC is the effective remedy available to such child," the Court said.Based on these discussions, the court answered the reference as follows:A ‘child’ and a “child in conflict with law” as defined under the Juvenile Justice (Care and Protection of Children) Act, 2015 can file an application under Section 438 of the Code of Criminal Procedure, 1973.[Read Judgment]