1. The present application has been filed seeking bail under the provisions of Section 438 of the Code of Criminal Procedure, 1973 (for short "the Code") in connection with the FIR being C.R. No.11205031210736 of 2021 registered with Mandvi Police Station, District Kachchh for the offence punishable under Sections 306 , 498A , 323 and 114 of the Indian Penal Code, 1860 (for short "the IPC ").

2. The case of the prosecution in brief is that the present applicant, who is a minor, is responsible for instigating and abating the suicide committed by the daughter of the deceased, since the applicant was having love affair with the husband of the deceased.

R/CR.MA/12190/2021 JUDGMENT DATED: 20/07/2021

3. Learned advocate Mr.J.M.Nayak appearing for the applicant has submitted that the applicant is a student and 17 years of age and being a juvenile, her case is governed by the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short "the Act"). It is submitted that in fact looking to the role of the applicant, the offence under Section 306 of the IPC is not established as she being a minor is not responsible for instigating or abating the deceased to commit suicide. It is submitted that the F.I.R is registered after two days of committing suicide.

4. Learned APP at the outset has questioned the maintainability of the present application. She has submitted that the application seeking anticipatory bail under Section 438 of the Code is not maintainable since there is no provision in the law to arrest a juvenile or a minor. In support of her submissions, she has placed reliance on the recent decision dated 21.06.2021 passed in Writ Petition No.12411 of 2021 of the Telangana High Court in case of Mr.Mohammed Bin Ziyad vs The State of Telangana . She has submitted that the Telangana High Court has considered the judgment of this Court rendered in the case of Kureshi Irfan Hasambhai vs. State of Gujarat , dated 09.06.2021 passed in Criminal Misc. Application No.6978 of 2021, where this Hon'ble Court has held that an application under section 438 of the Code filed by a minor is maintainable. She has submitted that a conflicting view has been taken by the Talangana High Court. She has also referred to the judgment of the Division Bench of Madras High Court dated 27.04.2017, in the case of K. Vignesh vs. State , (2017) SCC online Madras 28442. It is submitted by her that since the legislature has consciously decided not to arrest a child in conflict with law, the present application seeking bail under the provisions of Section 438 of the Code is not maintainable.

R/CR.MA/12190/2021 JUDGMENT DATED: 20/07/2021 Learned APP has also placed reliance on the decision of the Punjab and Haryana High Court, dated 05.07.2021 passed in CRM-M-21406-2021 in the case of Piyush minor through his natural mother Smt. Nirmala Devi w/o Sh. Narender vs. State of Haryana . Thus, she has submitted that the decisions of both the High Courts are subsequent to the decision of this Court, holding that an application under the provisions of Section 438 of the Code is not maintainable. She has submitted that the Act does not provide any provision with regard to granting of anticipatory bail and hence, the present application may be rejected.

5. In response to the aforesaid submissions, learned advocate Mr.Nayak for the applicant has submitted that this Court, while examining various provisions of the Act this Court in the case of Kureshi Irfan Hasambhai (supra) has held that the application seeking anticipatory bail under the provisions of Section 438 of the Code is maintainable.

6. I have considered the rival submissions advanced by the learned advocates appearing for the respective parties. The judgements cited at the bar are also perused

7. As noticed hereinabove, there are conflicting decisions rendered by the Coordinate Bench of this Court in the case of Kureshi Irfan Hasambhai (supra) and in case of Mr.Mohammed Bin Ziyad (supra). The Telangana High Court, after considering the decision of this Court has opined that the bail under the provisions of Section 438 of the Code is not maintainable. The Telangana High Court, after considering the provisions of Sections 8 , 10 and 12 of the Act, has disagreed with the principle laid down by this Court by placing reliance on judgement of the Division Bench of Madras High Court in the case of K. Vignesh (supra).

R/CR.MA/12190/2021 JUDGMENT DATED: 20/07/2021

8. Subsequently, the Punjab and Haryana High Court in the case of Piyush minor through his natural mother Smt. Nirmala Devi w/o Sh. Narender (supra) has placed reliance on the judgment of the Telangana High Court as well as the Division Bench of the Madras High Court and held that the application seeking bail under the provisions of Section 438 of the Code in case of juvenile is not maintainable.

9. The Division Bench of Madras High Court as well as the Telangana High Court, after considering the aforenoted provisions of the Act, has held that since the legislature would have very well used the expression 'arrest' instead of using the expression 'apprehend' in Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015, there would not be any question of filing bail application under Section 438 of the Code. It is further observed that the provisions of Section 10 of the Act makes it very clear that in no case a child alleged to be in conflict with law shall be placed in a police lock-up or lodged in a jail. The Board has been obligated to send the child either to an observation home or a place of safety. It is also observed that there are lot of other safeguards in the Act as well as in the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 to ensure that the child, so apprehended by a police or any other authority, shall not in any manner be disturbed emotionally, psychological or physically. It is further observed that even if a child is apprehended or detained, the child would be entitled for a bail, irrespective of whether the offence said to have been committed by him is bailable or non-bailable under the provisions of Section 12 of the Act. The Telangana High Court, while following the decision of the Madras High Court and after referring to the statutory scheme of the Act, comprehensively in light of the various orders, which are placed reliance, has held that an application seeking bail under the provisions of Section Page 4 of 12 Downloaded on : Sun Jan 16 01:20:36 IST 2022 R/CR.MA/12190/2021 JUDGMENT DATED: 20/07/2021 438 of the Code at the instance of child is not maintainable and the High Court in exercise of its inherent powers cannot grant anticipatory bail.

10. Section 10 of the Act, is reproduced hereinbelow:-

11. The Coordinate Bench, while referring to the dictionary meaning of "apprehend", has observed thus:-

[11] The word "arrest" though not defined in Criminal Procedure Code , purport could be gathered from Chapter-5 of CRPC. The word 'arrest" in common parlance and as defined in various dictionaries would mean to deprive a person of his personal liberty to go anywhere he pleases. The word "arrest" in legal sense refers to a procedure connected with an offence to take into custody of another person under an authority of law for the purpose of holding or detaining him to answer a criminal charge or Page 5 of 12 Downloaded on : Sun Jan 16 01:20:36 IST 2022 R/CR.MA/12190/2021 JUDGMENT DATED: 20/07/2021 preventing commission of offence. The manner and method of arrest is also provided for under Chapter-5 of CRPC. Section 438 of the Code opens with the phrase "when any person has reason to believe that he may be arrested on accusation of having committed non-bailable offence...."

12. The Coordinate Bench of this Court has also considered the judgment of the Division Bench of the Madras High Court in the case of K. Vignesh (supra) and after considering the same, it is held that an application seeking anticipatory bail under the provisions of Section 438 of the Code is maintainable as the juvenile can be said to have been "arrested" by the police officer albeit the provisions stipulate of apprehending the juvenile.

13. Thus, there are two views expressed with regard to apprehension of a child under the provisions of Section 10 of the Act. The Division Bench of Madras High Court has opined that since the legislature has not used, the expression 'arrest' and has used expression "apprehension" in Sections 10 and 12 of the Act, the provisions of Section 438 of the Code cannot be invoked as the child is not "arrested" but "apprehended". Heavy reliance is also placed on the powers of the Board and the safeguards provided in the Act for taking care of the juvenile when the child is apprehended.

14. In addition to the aforementioned observations made by the Coordinate Bench of this Court, I may hasten to add my observations with regard to the issue. I may not reiterate the observations expressed in the above mentioned decisions with regard to the benevolent intention of the legislature in promulgation of the Act, since the same is comprehensively recorded.

15. Since there is conflict on the view of maintainability of application Page 6 of 12 Downloaded on : Sun Jan 16 01:20:36 IST 2022 R/CR.MA/12190/2021 JUDGMENT DATED: 20/07/2021 under section 438 of the Code seeking anticipatory bail, I may with profit, at this stage, refer to the decision of Apex Court in the case of Km.Hema Mishra Versus State Of Uttar Pradesh, 2014 (4) SCC 453. The Supreme Court while dealing with the issue of grant of relief against pre-arrest of a person in case the provision of section 438 of the Cr.P.C. is excluded has held thus:

(b) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the court or to any police officer;

(c) shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police;

(d) shall be subjected to the conditions prescribed by the Board as per the provisions of law;

21. In the result, the present application is allowed. Rule is made absolute.

(A. S. SUPEHIA, J) ABHISHEK Page 12 of 12 Downloaded on : Sun Jan 16 01:20:36 IST 2022