Matter has been taken up through video conferencing via Webex facility in the light of the Pandemic Covid-19 situation and as per instructions.

Prayer is made for the grant of anticipatory bail to the petitioner in case FIR No.65 dated 26.04.2021, under Section 8 of Protection of Children from Sexual Offence Act, 2012 (for short 'the Act') at Police Station Satnali, District Mohindergarh, Haryana.

Learned counsel for the petitioner has vehemently contended that the petitioner has been falsely implicated. No offence as alleged in the FIR is made out against him.

Admittedly, the petitioner before this Court is a juvenile and hence before appreciating the merits of the case, the issue of the maintainability of the petition on behalf of a juvenile under Section 438 of Code of Criminal Procedure (for short ' Cr.P.C ') is of prime importance. For dealing with the juvenile, the relevant Act is The Juvenile Justice (Care and 1 of 5 ::: Downloaded on - 06-07-2021 22:55:57 ::: CRM-M-21406-2021 2 Protection of Children) Act, 2015 (for short 'the Act'), which is a complete Code in itself and has specific provision for dealing with the child in conflict with law. Section 10 deals with apprehension of the child alleged to be in conflict with law and Section 12 pertains to bail to a person who is apparently a child alleged to be in conflict with law. The legislature mandates that as soon as a child is apprehended by the police, he shall be produced before the Board without any loss of time. The provisions of Section 12 would show that when any child in conflict with law is brought before a Board then such person notwithstanding anything contained in the Cr.P.C . or in any other law for the time being in force, be released on bail with or without surety. Proviso to this Section 12 further mandates that if it appears to the Board that there are reasonable grounds for believing that the release of the child in conflict with law, is likely to bring that person in association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice then the Board shall record the reasons for denying the bail.

Whereas the provisions of Section 438 Cr.P.C. are enumerated for granting the bail to the person who has apprehension of arrest. A reading of provisions of Section 438 Cr.P.C. vis-a-vis of relevant provisions of the Act would show that a juvenile cannot be arrested and thus, there is no question of apprehension of his arrest. Hence, the petition under Section 438 Cr.P.C. is not maintainable in case of a juvenile. A similar controversy came up before the Hon'ble Division Bench of the High Court of Madras in K.Vignesh Vs. State rep. By the The Inspector of Police, C-3, Seven Wells Police Station, Chennai-600079, 2017 SCC OnLine Mad 28442, and Hon'ble Division Bench while dealing with the issue appreciated various 2 of 5 ::: Downloaded on - 06-07-2021 22:55:58 ::: CRM-M-21406-2021 3 provisions and observed in Para No.11 as under:-

Finally in the concluding Para No.16, it was observed as follows:-

3 of 5 ::: Downloaded on - 06-07-2021 22:55:58 ::: CRM-M-21406-2021 4 "16. Thus, there are lot of safeguards provided to the child in conflict with law in the event the child is apprehended by the police. In the light of these safeguards, and in the light of the legal position that the child in conflict with law cannot be arrested, the child in conflict with law need not apply for anticipatory bail. The legislature has consciously did not empower the police to arrest a child in conflict with law. Thus, it is manifestly clear that an application seeking anticipatory bail under Section 438 Cr.P.C. at the instance of a child in conflict with law is not at all maintainable. Similarly, a direction to the Juvenile Justice Board to release the child in conflict with law cannot be issued by the High Court in exercise of its inherent power saved under Section 482 Cr.P.C. Thus, we approve the view of the Hon'ble Mr.Justice P.N.Prakash in Ajith Kumar Vs. State , reported in 2016 (2) CTC 63 and we are impelled to overrule all the other orders wherein conflicting views have been expressed. Accordingly, we answer the reference."

The view taken by the Hon'ble Division Bench of Madras High Court was followed by the Hon'ble Single Bench of Telangana High Court case titled as Mr. Mohammed Bin Ziyad, a minor, represented by his mother Smt. Noor Vs. The State of Telangana and another (WP No.12422 of 2021 decided on 21.6.2021) wherein again the issue in question was appreciated and view taken by the Hon'ble Division Bench of Madras High Court was followed in Para No.16 of the judgment which observed as under:-

A careful perusal of statutory provisions and the judicial precedents, would show that the legislature in the best of its wisdom has legislated the Act with highest of the sensitivity which is apparent from the various safeguards provided in the Act. The language of Section 12 of the Act would show the intention of the legislature in safeguarding the welfare of juvenile wherein it mandates the production of the child before the Board. The underlying purpose of the scheme appears to be that legislature wanted the personal interaction of the juvenile with the Board before arriving at a decision regarding his bail. On the other hand, such a provision do not have any place under Section 438 Cr.P.C and hence safeguard provided to a juvenile is automatically bypassed. Even otherwise the Act mandates the provision of granting the bail to a juvenile in a bailable or non-bailable offence notwithstanding anything contained in Cr.P.C.

Thus, I am of the opinion that in view of the clear mandate of the legislature, the petition under Section 438 Cr.P.C. on behalf of the juvenile is not maintainable and the petitioner is at liberty to seek his remedy in accordance with law.

Petition is disposed of.