ANTICIPATORY BAIL: WHETHER PERMISSIBLE TO A CHILD IN CONFLICT WITH THE LAW UNDER THE JJ ACT OR MAINTAINABLE UNDER CRPC

Criminal Law
July 20, 2021

Kalyani Paunikar

Kalyani is an Editor at The Law Culture. She is a second-year student from Maharashtra National Law University Mumbai. Her areas of interest are Socio-legal studies and Criminal Law

“The surest way to corrupt a youth is to instruct him to hold in higher esteem those who think alike than those who think differently.”

Friedrich Nietzsche

INTRODUCTION

Anticipatory bail means when any person has reason to believe that he may be arrested on accusation of having committed an offense, he shall be released on bail. Under section 438 of the Code of Criminal Procedure (hereinafter, the code/CRPC), granting an anticipatory bail or not is discretionary. Yet, the power of the court u/s 438 is an extraordinary power. The Supreme Court has not touched upon the issue of Whether the term ‘any person’, under section 438 of the Code, would also include a child in conflict with the law. Since the code is a general legislation, the term in this respect is a vague one.

Under Section 2 (k) of the Act of 2015, a child in conflict with the law is a child, alleged to have committed an offence and has not completed eighteen years of age on the date of the commission of such offense. According to Psychodynamic theory, by Sigmund Freud, personality is acquired and developed during childhood, and is critically shaped via a series of psycho-sexual phases. Hence, the Act of 2015 is a social welfare legislation. It focuses on refining children rather than punishing them. Hence, the Act nowhere mentions the word arrest. Rather, under Section 10, the legislation has coined the word “Apprehension”. This provision has been made to confirm that children are kept out of the adult justice system. The Madras High Court has, thus, clarified that a child in conflict with law cannot be arrested in the first place, and thus need not apply for anticipatory bail.

ANTICIPATORY BAIL UNDER CRPC

The Constitutional bench distinguished between normal bail and anticipatory bail. It thus held that the normal bail is granted after the person is arrested, whereas anticipatory bail is granted in apprehension of the arrest. But the court in Balchand Jain vs State of MP observed that the term ‘anticipatory bail’ is a misnomer as it merely orders that an accused be released on bail in the event of arrest. Where the JJ Act doesn’t make any provision for anticipatory bail, Section 438 of the Code makes a provision for pre-arrest bail. The question that pertains in relation to the JJ Act is whether a child in conflict with the law can apply for anticipatory bail in apprehension of an arrest under CrPC as Juvenile legislation has not interpreted the term.

The issue of anticipatory bail to juveniles, under Section 438 of the Code, came across the Madras High Court in A. Sethuraman v. State. Under 2000 legislation, the Calcutta High Court had granted bail to them, not as a juvenile, but as an adult one. The court stated that in the chargesheet, there was no mention that the petitioners were juvenile. Though they were granted anticipatory bail by the High Court, but not on the basis of juvenility. Because of the lack of Supreme Court judgment on the issue, various High Courts have expressed inconsistent opinions.

JUDICIAL OVERVIEW

The court, on account of the Act of 2000, held that it is a specific legislation that would prevail over the Code. The argument that was made, and was accepted, is that Section 12 of the JJ Act offers for a non-obstante clause. Thus, it ignores the application of the provisions of the Code. Hence, Section 438 would not be pertinent in case of a child in conflict with the law. On similar lines, the court in Tejram v. State of Chhattisgarh opined that a comprehensive provision has been recognized on how a child in conflict with the law would be dealt with when he is merely apprehended.

On the other hand, Chhattisgarh High Court, relying on Supreme Court judgment, observed the non-obstante clause in Section 12 of the Act. The said non-obstante clause only seeks to put the child in conflict with law in the better position as compared to any other person. It provides that, usually, a child in conflict with the law has to be granted bail in supersedure for granting of bail as provided for in the code. Hence, it was held that the application for grant of anticipatory bail under Section 438 of the Code at the behest of a child in conflict with law before the High Court or the Court of Session is maintainable. The said remedy is not omitted by the process of Section 12 of the Act.

Recently, the Allahabad High Court had come across an Anticipatory Bail Application under Section 438 of CrPC, filed by a Juvenile apprehending arrest. It was submitted that an application for grant of anticipatory bail at the request of the child in conflict with the law is not maintainable after FIR has been registered against him in view of Shahaab Ali (Minor) v. State of U. P. The court had dealt with the issue in two situations: After lodging FIR and Before lodging FIR.

The court reasoned that the Act of 2015 is a comprehensive code in itself and from the reading of Section 1(4) of the Act, it appears that Section 438 of CrPC has no application. The section evidently indicates the legislative intent that the provisions of the Act with regards to arrest and detention must necessarily prevail over any other law for the time being in force. The application of section 438 of the Code would interfere with the statutory process that is otherwise liable to be followed upon apprehension of a child. The argument that was placed before the court was that the personal liberty of a child in conflict with the law is being severely affected on account of the limited opening of the window of Section 438 and therefore, the applicant may be enlarged on anticipatory bail.

Most recently, the Telangana High Court had ruled that application seeking anticipatory bail by a child in conflict with the law in writ petition is not maintainable and one has to avail the remedy under Section 12 of the Act.

JURISDICTION OF JUVENILE JUSTICE BOARD

Juvenile Justice Board (JJB) has been instituted under section 6 of the Act to deal exclusively with the proceedings with regards to juveniles/children in conflict with the law. Hence, JJB is an appropriate authority to deal with proceedings including normal or anticipatory bail. No court either Sessions or High Court has jurisdiction to deal with the proceedings pertaining to a child in conflict with the law.[i]

The bail application, under section 438 of the Code, is entertained either by the High Court or the Court of Sessions. Hence, the Madhya Pradesh High Court held that the bail application of a juvenile can be entertained by the Board only when he is arrested or is brought before the Board. Hence the court opined, that application for grant of anticipatory bail requested by the juvenile cannot be entertained by the High Court or the Court of Session by applying the provision contained under Section 6(2) of the Act. In Kapil Durgawani v. State of MP, the court even held that the JJB has no jurisdiction to consider an anticipatory bail application in the absence of any specific provision in the Act.

On the other hand, in Mohan v. State of Chhattisgarh it was held that the Act does not take away the power and jurisdiction of the High Court or the Sessions Court regarding bail as provided under Section 438 and 439 of CrPC. On similar lines, in Birbal Munda & Ors. v. State of Jharkhand, the petitioners (juvenile) were given the privilege of anticipatory bail.

CONCLUSION

Some High Courts have held that none of the provisions of CrPC would apply to the child in conflict with the law as the JJ Act is a specific legislation. On the other hand, some High Courts have taken into consideration the personal liberty and freedom of their citizens. The latter seems a better approach as under Section 3(i) of the Act, Presumption of innocence of any criminal intent arises in favour of the child. In either approach, it would impact the welfare of the child.

The courts, while deciding the question of Anticipatory bail, should take into consideration the personal freedom of the child in this free democracy. It should be the court’s duty to safeguard the rights and best interest of the child in conflict with the law. As the aim of the 2015 legislature is to protect the juvenile, one cannot suppress the right of juvenile to have protection under section 438 of the Code.


[i] Surya v. State of Tamil Nadu, 2016 SCC Online Mad 7986

Author

Kalyani Paunikar

Kalyani is an Editor at The Law Culture. She is a second-year student from Maharashtra National Law University Mumbai. Her areas of interest are Socio-legal studies and Criminal Law

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