The applicability of anticipatory bail under Section 438 Cr.Pc to minors in confrontation with the law under the JJ Act is not expressly barred.: Gujarat High Court

 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021IN THE HIGH COURT OF GUJARAT AT AHMEDABADR CRIMINAL MISC.APPLICATION NO. 69721================================================================KURESHI IRFAN HASAMBHAI THRO KURESHI KALUBHAI HASAMBHAI VersusSTATE OF GUJARAT ===============================================================Appearance:MR. R.C.JANI ADVOCATE with KASHYAP R JANI(8287) for the Applicant(s)No. 1 and MR. VISHRUT R JANI(6696) for the Applicant(s) No. 1MR. D.M.DEVNANI APP for the Respondent(s) No. 1===============================================================CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE Date : 09 06 2021 ORAL ORDER[1]RULE. Learned APP waives service of Rule on behalf of therespondent State.[2]This is an application by the applicant under Section 438 ofthe Code of Criminal Procedure 1973 for anticipatory bail in theevent of his arrest in connection with FIR registered at C.R.No.111920502100921 before Sanand Police Station Ahmedabadfor the offence under Sections 143 147 148 149 152 153 224 225 186 332 353 395 397 427 and 504 ofthe Indian Penal Code under Section 135 of the GP Act and underSection 12 of the Gambling Act.[3]The application is filed through the brother of the proposedaccused who is aged 17 years and apprehends that he may befalsely involved in the aforesaid offence on account of the previousenmity with the accused No.1 though applicant is not named as anaccused in the FIR.can be maintained by child inconflict with law more particularly considering the provisions of theJuvenile JusticeAct 2015at Mirzapur however on account ofmaintainability the application was not entertained.to indicate that the High Court had exercised the discretiongranting pre arrest bail. Reliance is also placed upon the decision inthe case of Kumari Shivani and another v s. State of M.P. reported in 2009 SC OnLine MP 4803 wherein the anticipatorybail to the minor was granted. Reliance is also placed upon thedecision of Jharkhand High Court in the case of Birbal Munda andothers v s. State of Jharkhand reported in 2019 SCC OnLine1794. It is submitted that the Jharkhand High Court had taken intoconsideration all the aspects including relevant definitions andprovisions of Juvenile Justice Act and concluded that the applicationfor anticipatory bail is maintainable.holding application under Section 438 of theCode is not maintainable is justified.No.4316. Learned APPhas also relied upon the decision in the case of Vinayak PandeyPage 3 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021v s. State of Madhya Pradesh in M.Cr.C.No.224807.which came to bedismissed by holding that the application for anticipatory bail underSection 438 of the Code is not maintainable. While doing so findingis given in para 5 by relying upon the decision in the case ofSatyendra Sharma v s. State of Madhya Pradesh reported in2014(2) MPLJ374 where according to the Sessions Courtthe issue was dealt with regarding maintainability of bail of ajuvenile and such application cannot be entertained by the HighCourt or Court of Sessions by applying the provisions containedunder Section 6(2) of the Act 2015. Section 6(2) of the Act providesplacement of persons who committed and offence when personPage 4 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021below the age of 18 years. Sub Section provides for when suchperson is not released on bail by the Board shall be placed in a placeof safety during the process of inquiry. However in the ordernothing is discussed as to in what manner Section 6(2) of the Act 2015 is attracted. It appears that the judgment in the case ofSatyendra Sharmawas pronounced when the JuvenileJusticeAct 2000was prevailing and at that time Section 6(2) of the Act 2000 provides for the powers conferred on the Board by or underthis Act was also exercised by High Court and Court of Sessionswhen the proceedings come before them in appeal revision orotherwise. However the Act 2000 is now substituted by the Act 2015 and under Section 111 of the Act 2015 the Act 2000 standsrepealed. This aspect appears to have escaped the attention of theSessions Court while dealing with the present case.The seizing or taking hold of aman the act of arresting or seizing under process of law arrest the apprehension of criminals. “Apprehension” may include detention.”However for the purpose of this case the word“Apprehend” is to mean “seize” or “Arrest”.The word “arrest” though not defined in Criminal ProcedureCode purport could be gathered from Chapter 5 of CRPC. The word‘arrest” in common parlance and as defined in various dictionarieswould mean to deprive a person of his personal liberty to goanywhere he pleases. The word “arrest” in legal sense refers to aprocedure connected with an offence to take into custody of anotherperson under an authority of law for the purpose of holding ordetaining him to answer a criminal charge or preventing commissionof offence. The manner and method of arrest is also provided forunder Chapter 5 of CRPC. Section 438 of the Code opens with thephrase “when any person has reason to believe that he may bearrested on accusation of having committed non bailableoffence….”of the Act 2015 which reads as under: “Section 1(4) Notwithstanding anything contained in any otherlaw for the time being in force the provisions of this Act shallapply to all members concerning children in need of care andprotection and children in conflict with law including3(ii)and 3(viii) which read as under: “3(i) Principle of presumption of innocence: Any childshall be presumed to be an innocent of any mala fide orcriminal intent upto the age of eighteen years.3(ii)principle of dignity and worth: All human beingsshall be treated with equal dignity and rights.3(viii) Principle of non stigmatising semantics”Adversarial or accusatory words are not be used in theprocesses pertaining to a child.”[16]Section 1(4) of the Act 2015 though begin with non obstanteclause provides for application of Juvenile Justice Act to all mattersconcerning children in conflict with law. However thereby theobject of the Act is to provide something more that is alreadyPage 8 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021provided for in the ordinary law in the present case provided underSection 438 of the Code. The Act which is separately provided forthe children is to Act in the benefit of the children and cannot beunderstood to curtail the rights which are otherwise ordinarilyavailable to the individuals.Act 1989 which read asunder: “18. Section 438 of the Code not to apply to personscommitting an offence under the Act.—Nothing in section438 of the Code shall apply in relation to any case involvingthe arrest of any person on an accusation of havingcommitted an offence under this Act”[18]Section 17(2) of the Gujarat Protection of Interest ofDepositorsAct 2003 reads as under: “17(2) The provisions of the Code of Criminal Procedure 1973except section 438 thereof shall so far asmay be apply to the proceedings before a Designated Courtand for the purposes of the said provisions a DesignatedCourt shall be deemed to be a Magistrate.”[19]Section 20(3) of the Gujarat Control of Terrorism andOrganized Crime Act 2015 reads as under: “20(3) Nothing in section 438 of the Code shall apply inrelation to any case involving the arrest of any personaccused of having committed an offence punishable underthis Act.”[20]Considering the aforesaid sets of provisions where there isexpressed bar of application of Section 438 of the Code toPage 9 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021aforementioned Special Acts this Court is of the opinion that thereis no expressed bar of application of Section 438 of the Code to thechildren in conflict with law covered by the Act 2015 and in absenceof expressed bar of application of Section 438 of the Code there isno reason to imply such bar more particularly in the facts of thepresent case where the applicant who is juvenile is not even namedas an accused and has raised a apprehension for being impleadedon extraneous consideration.referred toSections 6 and 12 of the Act 2000. Relevant paras 8 and 9 read asunder: “8. A conjoint reading of Sections 6 and 12 of the Act wouldreveal that to deal with all the proceedings including bail etc in respect of juvenile a Juvenile Board is the appropriateauthority and it has been constituted exclusively for thispurpose and no Court either Sessions Court or High Court hasjurisdiction to deal with the proceedings pertaining to ajuvenile. Therefore it is clear that the bail application of ajuvenile can be entertained by the Board only when he isarrested or detained or appears or is brought before theBoard otherwise the application cannot be entertained. If thejuvenile is arrested or detained or appears or is brought beforethe Board then certainly bail application will be filed underSection 12 and the same has to be decided by the Board only but not by the High Court or Court of Sessions. However Section 52 of the Act gives right to a juvenile who is accusedof a bailable or non bailable offence if he has been refusedbail to file an appeal under Section 52 of the Act within 30days from the date of such order or after the expiry of the saidperiod if prevented by sufficient cause to prefer an appealwithin time to the Court of Sessions and in case the appealfails he can file a revision against the appellate order beforethe High Court in accordance with Section 53 of the Act.Therefore the Act specifically envisages that the powersconferred on the Board by or under this Act can be exercisedby the High Court and the Court of Sessions only when theproceedings comes before them in appeal revision orPage 10 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021otherwise.9.Such being the legal position if any bail application filedby a juvenile is entertained by the High Court and rejected certainly the juvenile would be left with no option since hewould have been deprived of the right of appeal before theCourt of Sessions and revision before the High Court. In fact no provisions of the Act or in the Code of Criminal Procedureenables the juvenile to move an application for anticipatorybail either before the Court of Sessions or High Court or evenbefore the Board which has been exclusively constituted forthe purpose of dealing with the proceedings pertaining to ajuvenile.”[22]The aforesaid view of the Madurai Bench of Madras High Courtconsiders a point that in case of rejection of any bail application bythe juvenile by the High Court would render the juvenile remedy less. In this regard it is pertinent to observe that for any child inconflict with law necessary procedure to be adopted as prescribedunder Section 12 of the Act 2015 and therefore even where theapplication under Section 438 of the Code is decided in any whichway the protection of Section 12 of the Act 2015 will always beavailable.The question with regards to fruitfulness to invoke Section438 of the Code for the child in conflict with law may arise in otherwords even of invoking Section 438 of the Code no useful purposewill be served as the child in conflict with law have to undergo theprocess of Section 12 of the Act 2015. The parameters of practicalusage and or application of parameters cannot lead to inferring ofbar of application of a provision Section 438 of the Code in thepresent case.Moreover considering the Section 1(4) of the Act 2015 it isclear to the extent that it does not exclude the application of otherActs CRPC in the present case and therefore this Court in respectfuldisagreement with the view expressed by the Madurai Bench ofMadras High Court in case of Suriya v s. State of Tamilnadu(Supra).Page 11 of 13 on : Fri Jun 11 22:46:59 IST 2021 R CR.MA 6978 2021 ORDER DATED: 09 06 2021[23]After considering the judgments of various High Courts theCourt held in para 12 as under: “12. In view of the above discussion I am of the consideredview that this petition filed under Section 482 Cr.P.C. forconsideration of the bail application of the petitioner who isadmittedly a juvenile is not maintainable and it is liable to bedismissed.”[24]It would be appropriate to mention here that the MaduraiBench of the Madras High Court has taken into consideration theconjoint reading of Sections 6 and 12 of the Act 2000 and arrived atsuch conclusion.while reproducing thefinding given by the Division Bench of the Madrash High Court in thecase of K. Vignesh v s. State reported in Criminal Original PetitionNo.223615 holding application filed under Section 438 of theCode is not maintainable in law. The Madras High Court in thesubsequent decision in the case of Kumari Shivanihasreferred to the decision of the Madhya Pradesh High Court in M.Cr.C.No.472918 holding an application for anticipatory bail by thejuvenile is maintainable and has granted anticipatory bail. Moreover the reason for holding the anticipatory bail not maintainable wasthat in any case the Juvenile Justice Act provided for all thesafeguards that the child in conflict with law cannot be arrested forthe reasons stated here in preceding paras.In the result the present application is allowed by directing thatin the event of arrest of the applicant herein in connection with FIRregistered at C.R. No.111920502100921 before SanandPolice Station Ahmedabadthe applicant shall bereleased on bail in conformity with Section 12 of the Act 2015.(a) shall remain present at the concerned Board on14.06.2021 between 11.00 AM and 02.00 PMshall be subjected to the conditions prescribed bythe Board as per the provisions of lawAt the trial the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicanton bail. Rule is made is made absolute. Direct service is permitted.(A.Y. KOGJE J) SIDDHARTHPage 13 of 13 

Summary: There is no expressed bar of application of Section 438 of the Code to the children in conflict with law covered by the Act, 2015 and in absence of expressed bar of application of Section 438 of the Code, there is no reason to imply such bar more particularly in the facts of the present case where the juvenile applicant is not even named as an accused and has raised an apprehension for being impleaded on extraneous consideration. The judgment was passed by The High Court of Gujarat in the case of Kureshi Irfan Hasambhai v. State of Gujarat [R/Criminal Misc. Application No.  6978 of 2021] by a Single Bench consisting of Hon’ble Justice A.Y. Kogje. The issue before the Court was whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure can be maintained by the child in conflict with law more particularly considering the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. Learned Counsel for the applicant submitted that the applicant is not involved in the offence and therefore also, the complainant has not named him in the offence however apprehension of arrest has arisen due to a previous incident which occurred between the accused regarding pet dog for which in the present offence accused and other co-accused named in the FIR are likely to name the present applicant as an accused in the offence during the investigation; thereby falsely implicating the applicant in the offence. Learned Counsel for the respondent, it was stated that the language of Section 438 of the Code which is required to be read with Sections 10 and 12 of the Act, 2015. Furthermore, it was argued that for maintaining application under Section 438 of the Code there has to be an apprehension of the arrest of a person, whereas provisions of Section 10 of the Act, 2015 provides for in no case, a child alleged to conflict with the law shall be placed in a police lockup or lodged in jail and as in case of a child in conflict with the law there is a complete bar for placing the child in a police lockup or to be lodged in jail. While allowing the application the court opined that “any child in conflict with the law, a necessary procedure to be adopted as prescribed under Section 12 of the Act, 2015 and therefore, even where the application under Section 438 of the Code is decided in any which way, the protection of Section 12 of the Act, 2015 will always be available.”