11 Oct 2023 3:46 PM GMT
The Supreme Court is set to consider the question of whether an Anticipatory Bail filed under Section 438 of the Criminal Procedure Code, 1973 by a juvenile in conflict with the law as the per Juvenile Justice (Care and Protection of Children) Act, 2015 is maintainable.
A bench of Justice Hrishikesh Roy and Justice Sanjay Karol issued notice to the State on Monday (9th October) in an appeal filed against an order of the Rajasthan High Court that had refused to entertain the pre arrest bail application of the petitioner who is a juvenile.
The Court noted the submission of the petitioner that there are currently several conflicting judgements of various High Courts on the said issue. The petitioner informed the Court that five High Courts have held that the provisions of Section 438 Cr.P.C. are maintainable in case of a juvenile in conflict with law but four other High Courts have taken a different view.
The Petitioner argued that a juvenile in conflict with law must be permitted to seek pre arrest bail rather than being relegated to the Juvenile Justice Board, when action under Section 10 of the JJ Act is apprehended. The Petitioner also pointed out to the court that Section 17 of the JJ Act says no order can be passed against a Juvenile under Chapter VIII of the CrPC.
The Bombay High Court in July 2022, held that a child in conflict with law as per the JJ Act can file an application under Section 438 of CrPC, seeking anticipatory bail.
"When a child in conflict with law is apprehended, his liberty is curtailed. Section 438 of the Cr.P.C. affords a valuable right to a person, who is likely to be arrested or in other words, whose liberty is likely to be curtailed. Section 438 of the Cr.P.C. does not make any distinction between different persons" a division bench of Justices Sarang Kotwal and Bharat Deshpande of the Bombay High Court had observed
However in February 2023, the Allahabad High Court disagreeing with the Bombay High Court, had take a contrary view.
"In case, the provisions of Section 438 Cr.P.C. are allowed to hold the field in the matters of juvenile, the aim and object of the Act shall be defeated. The interpretation of law cannot be devised in a way, so as to put a hurdle in the broader and solemn aim which is sought to be achieved by this enactment," the bench of Justice Jyotsna Sharma of the Allahabad High Court had said.
AOR Abhimanyu Tewari, Adv. Eliza Bar, Adv. Tushar Bathija, Adv. Siddhant Saroha, Adv. Sidhant Awasthy, Adv. Praveer Singh and Adv. Parth Jain appeared for the Petitioner.
Case Title: Yuvraj V. State of Rajasthan, Petition for Special Leave To Appeal (Crl.) No. 12659/2023