Dismissed

Nadeem v. State of U.P. and Another

Allahabad HC22 Aug 2022ABAIL/5820/2022

Case brief

AI extract

What is this about?

The applicant sought anticipatory bail as a juvenile accused in a criminal case. The High Court held the application is not maintainable under Section 438 Cr.P.C. because the Juvenile Justice Act, 2015 governs detention, prohibiting arrest and mandating a separate procedure under the Act.

What did the court decide?

The application for anticipatory bail is dismissed as not maintainable; applicant to seek appropriate remedy under the Juvenile Justice Act.

Nadeem Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2022)

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Court No. - 72

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5820 of 2022

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Applicant :- Nadeem Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Manish Joshi Counsel for Opposite Party :- G.A.,Mahendra Kumar Singh Chauhan

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Hon'ble Raj Beer Singh,J.

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1. Heard learned counsel for the applicant, learned counsel for the complainant, learned A.G.A. for the State and perused the record.

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2. The present application has been moved seeking anticipatory bail in Case Crime No.109 of 2022, under Sections 323, 325, 504, 506, 147, 307, 452, 34, Police Station Pakbada, District Moradabad, with the prayer that in the event of arrest, applicant may be released on bail.

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3. Learned counsel for the applicant submits that the applicant-accused is a juvenile and he has been falsely implicated in this case. Learned AGA submits since the applicant is stated juvenile, thus, his application for anticipatory bail is not maintainable.

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4. In this matter the question arises whether an application on behalf juvenile for anticipatory bail is maintainable. In case of Shahaab Ali (minor) and Anr vs. State of UP, (Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. -597 of 2020) decided on 20.01.2020, the co-ordinate Bench of this Court held that an application for anticipatory bail on behalf of minor/ juvenile is not maintainable. It was observed as under:

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''The implied exclusion of Section 438 essentially flows from Section 1(4) of the 2015 Act that confers on the provisions made therein in respect of arrest and detention the character of preeminence. The section is a clear manifestation of the legislative intent that the provisions of the 2015 Act dealing with arrest and detention must necessarily prevail over any other law for the time being in force. The 2015 Act represents an all encompassing and self contained code laying in place a separate and distinct procedure liable to be followed in case of arrest or detention of a child in conflict with law. It places significant and special safeguards in respect of the apprehension of a child in conflict with law. It is in that sense not an incarceration or detention by the police as normally understood. The extension of the provisions of Section 438 of the Criminal Procedure Code would clearly interfere with and disrupt the statutory process that is otherwise liable to be followed upon apprehension of a child. It must consequently be held that once a first information is registered or information otherwise recorded by the SJPU or the CWPO with regard to a child in conflict with law, the provisions of Section 438 stand impliedly excluded. In such a situation it is the provisions made in Sections 10 and 12 of the 2015 Act which alone must be permitted to operate and recognized in law to be applicable.

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The only limited window in which Section 438 can be held to apply is the pre recordal of information stage with regard to an offense allegedly committed by a child. As noticed above, Section 10 comes into play only once information in respect of an offense comes to be recorded. Prior to that a child apprehending detention or deprivation of liberty is accorded no protection or avenue of redress under the 2015 Act. It is within this narrow confine alone that his right to invoke the jurisdiction of the Court of Sessions or the High Court must be recognised to exist and preserved.

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CONCLUSION

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In the present case, a first information report has already come to be lodged against the two applicants. The learned AGA has rightly submitted that the police cannot apprehend the applicants and that it is the procedure prescribed by Sections 10 and 12 that will have to be necessarily followed. In that view of the matter the Court is of the opinion that the apprehension of arrest is clearly misplaced.''

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5. The Court took the view that once the first information has been lodged, the juvenile cannot be apprehend and thus, there is no apprehension of arrest and therefore, the application for anticipatory bail would not be maintainable. It may observed here that the detention of the juvenile has to be made as per the provisions of the Section 10 and Section 12 of Juvenile Justice (Care and Protection of Children) Act 2015 (hereinafter referred to as JJ Act 2015). The provisions of JJ Act 2015 have overriding effect as far as apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social integration of children in conflict with law are concerned. The essential intent underlying section 1(4) underscores that the provisions of the 2015 Act relating to apprehension, detention, prosecution, penalty or imprisonment would apply in respect of children in conflict with law notwithstanding anything contained in any other law for the time being in force.

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6. The issue of maintainability of application for anticipatory bail on behalf of juvenile has been succinctly dealt with by a Division Bench of Hon'ble Madras High Court in case of K.Vignesh vs. State 2017 SCC OnLine Mad 28422. It was observed as under:-

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"11. While enacting the Juvenile Justice (Care and Protection of Children) Act, 2015, the Legislature was well aware of Chapter V of the Code of Criminal Procedure more particularly Section 46 of the Code of Criminal Procedure as to how a person could be arrested. Had it been the intention of the Legislature, that a police officer should be empowered to arrest a child in conflict with law, 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. In our considered view, the Legislature has, thus, consciously omitted to use the expression 'arrest' in Section 10 of the Act, which means that the Legislature did not want to empower the police to arrest a child in conflict with law. The Legislature, being aware of the consequences that ensue the arrest, has avoided to empower the police to arrest a child in conflict with law. At the same time, the child in conflict with law cannot be let free as it would not be in the interest of the child in conflict with law as well as the society. Therefore, the Legislature had obviously thought it fit to give only a limited power to the police. In other words, the Legislature has empowered the police simply to apprehend a child in conflict with law and immediately, without any delay, cause his production before the Juvenile Justice Board. The Juvenile Justice Board has also not been empowered to pass any order of remand of the child in conflict with law either with the police or in jail. The proviso to Section 10 of the Act makes it very clear that in no case a child alleged to be in

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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. 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. Thus, a reading of the entire scheme of the Act would inform that no authority, including the police, has been empowered to arrest a child in conflict with law but instead the child in conflict with law could only be apprehended and produced before the Juvenile Justice Board." .

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7. It was further observed as under:

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"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."

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8. Thus, it clearly emerges that the Legislature has not empowered the police to arrest a juvenile and he can be apprehended or detained only in accordance with the provisions of Juvenile Justice Act 2015. As there is no apprehension of arrest of the juvenile thus, an application for anticipatory bail for juvenile is not maintainable.

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9. In view of the above, the instant application for anticipatory bail is dismissed as not maintainable.

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10. The applicant is free to take recourse for appropriate remedy under Juvenile Justice Act, in accordance with law.

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Order Date :- 22.8.2022 A. Tripathi

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Digitally signed by AKHILESH TRIPATHI Date: 2022.08.24 14:58:23 IST Reason: Location: High Court of Judicature at Allahabad

Nadeem v. State of U.P. and Another

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Nadeem v. State of U.P. and Another

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