Date : 03-10-2023

1. Heard Mr. B. Bora, learned counsel for the petitioner. Also heard Ms. S.H. Bora, learned Additional Public Prosecutor appearing for the State of Assam.

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2. This application under Section 438 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner, namely, Sri Dasarath Ray@ Dipjyoti Roy, who is a juvenile of 17 years of age, and he is represented by his father Sri Fani Bhushan Roy. The petitioner has prayed for anticipatory bail to him in connection with Kokrajhar Police Station Case No. 270/2023 under section 143 / 341 / 342 / 386 / 325 / 307 of the Indian Penal Code.

3. The gist of accusation, in brief, is that, on 05/08/2023, Sri Medo Brahma and Sri Muktar Ali had jointly lodged an FIR before Officer-in-Charge of the Kokrajhar Police Station, inter alia, alleging that, on 03/08/2023, when the first informants were herding back three cows which they had purchased from Dhauliguri Kumguri, the accused persons named in the FIR, including the present petitioner, along with 10 to 12 other unknown miscreants restrained them and demanded ₹ 25,000/-from them. When the first informants refused to pay the money, they were brutally assaulted by the accused persons. It is also alleged in the FIR that the accused persons tried to kill the first informants with a khukri and thereafter the first informants were tied up with a rope and were again assaulted and taken to Kokrajhar crematorium, where ultimately they were rescued by some people. On receipt of the said FIR, Kokrajhar Police Station Case No. 270/2023 under section 143 / 341 / 342 / 386 / 325 / 307 of the Indian Penal Code was registered.

4. Learned counsel for the petitioner has submitted that, the petitioner is a student of Magurmari High School and is innocent. It is submitted that at the time of the incident, the present petitioner was in the tailoring shop of his cousin (one of the FIR named accused namely Sri Pranab Baro) at Magurmari. On hearing hue and cry, the petitioner and his cousin came out of the shop and found that two persons were apprehended by local people on suspicion of being Page No.# 3/9 involved in cattle smuggling and they were assaulted by the local public. Learned counsel for the petitioner has further submitted that the petitioner's cousin tried to prevent the public from assaulting the apprehended persons, however, in vain. Thereafter, the petitioner was asked by his cousin to inform about the incident to the Secretary of the Village Defence Party (VDP), accordingly, the petitioner went to inform the VDP Secretary and when he came back, he came to know that the apprehended persons were rescued by some kindhearted people. It is submitted by learned counsel for the petitioner that that the petitioner was merely a curious onlooker and the has not participated in any act of violence and has never raised his hands on the informant, rather he only informed about the incident to the VDP Secretary.

5. Learned Counsel for the petitioner has also submitted that the petitioner, who is a juvenile, is apprehending that, as his name has been mentioned in the FIR, he may be a apprehended in connection with Kokrajhar Police Station Case No. 270/2023. Learned counsel for the petitioner has also submitted that as the petitioner went to the place of occurrence of alleged incident after hearing hue in cry, he may appear in the video footage which was recorded by some people at the time when alleged incident occurred, however, he never assaulted anyone and he is not involved in commission of alleged offence. It is further submitted by learned counsel for the petitioner that the petitioner is a permanent resident of Magurmari village under Kokrajhar Police Station and he is ready to cooperate with the Investigating Officer.

6. On the other hand, Ms S.H. Bora, learned Additional Public Prosecutor raised the plea of maintainability of an application under Section 438 of the Code of Criminal Procedure, 1973 in case of a juvenile who is in conflict with law. Learned Additional Public Prosecutor has placed the order dated Page No.# 4/9 27/04/2023, passed by a coordinate bench of this court in the case of " Kara Taling vs The State of Arunachal Pradesh " reported in 2022(3) GLT 828 wherein it was held that an application under Section 438 of the Code of Criminal Procedure, 1973 is not maintainable in case of juvenile/minor. Learned Additional Public Prosecutor submitted that all eventualities on apprehension of a juvenile who is in conflict with law is taken care of by the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 which is a complete code in itself. It is also submitted by the learned Additional Public Prosecutor that as the issue of non-applicability of Section 438 of the Code of Criminal Procedure, 1973 in case of a juvenile in conflict with law has already been decided by a coordinate bench of this court, the application of the present petitioner is liable to be dismissed.

7. On the question of maintainability of an application under Section 438 of the Code of Criminal Procedure, 1973 in case of a juvenile, Sri B. Bora, learned counsel for the petitioner, has cited a recent ruling of a Division Bench of the Allahabad High Court in "Mohammad Zaid -vs- State of U.P. & another along with connected matters" reported in "2023 Live Law(AB)177" wherein it was held that a "child" or a "child in conflict with law" can file an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 and same would be maintainable. Learned counsel for the petitioner also submitted that though the Juvenile Justice (Care and Protection of Children) Act, 2015 nowhere uses the word "arrest" and instead uses the word "apprehended", however, it is submitted that as per Black's Law Dictionary both the words are synonymous to each other. It is further submitted by the learned counsel for the petitioner that the provision of Section 438 of the Code of Criminal Procedure, 1973 is not in conflict with the provisions of Juvenile Justice (Care and Page No.# 5/9 Protection of Children) Act, 2015 as the later deals with situations only after a juvenile has been apprehended, whereas, the former deals with situation before the juvenile is apprehended. He, therefore, submitted that an application under section 438 of the Code of Criminal Procedure, 1973 by a juvenile is maintainable.

8. I have considered the rival submissions made by learned counsel for both the sides as well as perused the materials available on record. I have also gone through the rulings cited by learned counsel for both the sides.

9. In the case of "Kara Taling vs The State of Arunachal Pradesh" (AB No. 40 of 2022) a coordinate Bench of this court held that an application under Section 438 of the Code of Criminal Procedure, 1973 is not maintainable in case of juvenile/minor. While coming to the said finding, the coordinate Bench relied upon following cases cited by the prosecution side: -

Rather, the reasoning given by the Allahabad High Court in "Mohammad Zaid

-vs- State of U.P. & another along with connected matters"(Supra) , while holding that a "child" or a "child in conflict with law" can file an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 and same would be maintainable, appears to be more reasonable.

12. Though, in the Juvenile Justice (Care and Protection of Children) Act, Page No.# 7/9 2015 the word "arrest" has not been used rather it uses the word "apprehended", however, the consequences of "arrest" of a person by police under section 41 of the Code of Criminal Procedure, 1973 and the consequences when a juvenile is "apprehended" by police under Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015 are the same, that is, in both the cases, the person/juvenile so arrested or apprehended is deprived of his liberty. In both the cases, irrespective of the different terminology used in both the statutes, initially the arrested/apprehended person (including a juvenile) has to submit himself to police custody for whatsoever minimum time it may be. Though, under Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015 an apprehended juvenile in conflict with law shall have to be produced before the Juvenile Justice Board without loss of time, however, the outer limit for the time period for such production is still 24 hours, during which such a juvenile may have to remain in a custody of police. The dictionary meaning of the word "arrest" is "to seize (someone) by legal authority and take them into custody" and so is the meaning of the word "apprehended", therefore, merely because the word "arrest" has not been used in the Juvenile Justice (Care and Protection of Children) Act, 2015 , it would not be reasonable for depriving a juvenile the benefit of Section 438 of the Code of Criminal Procedure, 1973 which may be availed by "any person" who has reasons to believe that he may be arrested on accusation of having committed a non- billable offence, more so, when the phrase "apprehension of being apprehended" connotes "apprehension of being arrested" only.

13. Moreover, in Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 the provision for bail is there for a juvenile in conflict with law, who has been apprehended or detained by the police. Though, there is a Page No.# 8/9 provision for bail, for juvenile in conflict with law, in the Juvenile Justice (Care and Protection of Children) Act, 2015 , however, there is no provision in the said Act similar to that of Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail for juvenile in conflict with law. There is also no provision in the Juvenile Justice (Care and Protection of Children) Act, 2015 which restricts applicability of Section 438 of the Code of Criminal Procedure, 1973 to a juvenile in conflict with law.

14. Section 1(4) (i) of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides as follows: -

15. A cursory perusal of above provision along with Sections 10 and 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 would reveal that though the said Act provides for provisions dealing with all matters at the post detention/apprehension stage of a juvenile who is in conflict with law, however, there is no provision akin to the Section 438 of the Code of Criminal Procedure, 1973 in the said Act which deals with the situation at pre detention/apprehension stage of a juvenile. Therefore, in my considered opinion, the non-obstante clause in the Section 1(4) (ii) of the Juvenile Justice (Care and Protection of Children) Act, 2015 does not exclude the operation of section 438 of the Code of Criminal Procedure, 1973, which is a general law, in case of a juvenile who is in conflict with law. Moreover, excluding the Page No.# 9/9 applicability of section 438 of the Code of Criminal Procedure, 1973 in case of a juvenile would leave such a juvenile remedy less till the time he is actually apprehended.

16. In view of above discussion, I, most respectfully, disagree with the view expressed and the decision taken by the coordinate bench of this Court in the case of "Kara Taling vs The State of Arunachal Pradesh" (Supra) as well as the rulings relied upon in the said case. It is submitted at bar that though there are conflicting opinions of various High Courts on the question of applicability of Section 438 of the Code of Criminal Procedure, 1973, in case of a juvenile, there is no reported case of the Hon'ble Apex Court in this regard, neither there is any reported case of any division bench or larger bench of this Court in this regard.

17. In view of above discussion, I am of the considered opinion that judicial discipline and propriety demands that the matter be placed before the Hon'ble Chief Justice for referring this case to a Division Bench for answering the following question: -

18. The Registrar (Judicial) of this Court is directed to place the matter immediately before the Hon'ble the Chief Justice for his Lordship's consideration.

JUDGE Comparing Assistant