No reason why juvenile in conflict of law cannot file anticipatory bail plea, says Bombay HC
India Today
The Aurangabad Bench of the Bombay High Court has held that a juvenile in conflict with the law can file an anticipatory bail application.
The Aurangabad Bench of the Bombay High Court has held that a juvenile in conflict with the law can file an anticipatory bail application. This had to be stated by the court on Friday as there is no provisions governing the grant of anticipatory bail under the Juvenile Justice (Care and Protection of Children) Act [JJ Act].
The bench of Justices SV Kotwal and BP Deshpande observed that denying a juvenile in conflict with law an opportunity to exercise the right of preferring an anticipatory bail application under Section 438 of the Criminal Procedure Code (CrPC) would be violative of Article 14 of the Constitution of India.The bench said, "Article 14 of the Constitution of India as well as Sections 3(ii) and 3(x) of the JJ Act give a valuable right to a child to be treated equally with others. A child defined under the JJ Act enjoys equal rights with other persons. Therefore, it would be in violation of all these principles and provisions to deny him an opportunity to exercise his right of preferring an application under Section 438 of the CrPC.”
This case was related to two juvenile aged 14 and 16 from Parbhani who were in conflict with law. They had applied for anticipatory bail and single bench judge, Justice Vibha Kankanwadi disagreed with the view taken by other single judges of the court and denied anticipatory bail to the two siblings.
The bench had requested Senior advocate Rajendra S Deshmukh to assist as amicus curiae. He supported Justice Kankanwadi’s view. He referred to various sections of the JJ Act and stated that sections 10 and 12 of the JJ Act were a complete Code in itself and therefore, Section 438 of the CrPC was not available for a child in conflict with law. He stated that there was no specific provision in the JJ Act for anticipatory bail.
Assistant Public Prosecutor AV Deshmukh too argued against any relief being granted to the minors. He said that even though Article 14 of the Constitution of India provides for equality before law, in case of the JJ Act, there is a purposeful differentiation made for protection of children and therefore, reasonable classification was permissible for their benefit. Since the word "arrest" did not appear in the JJ Act, no question of anticipatory bail arose as the provision speaks about grant of bail to person apprehending arrest.
Advocate Suvidh Kulkarni, on behalf of the petitioners, drew the court's attention to the definition of the word "person" under the Indian Penal Code (IPC) and argued that a "child" as defined under the JJ Act would not be excluded from the word "person".
Kulkarni emphasized that Section 438 of the CrPC uses the word “any person” and therefore, it would mean that the provisions of Section 438 of the CrPC are available to any person including a child as defined under the JJ Act.