Court No. - 34
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 10694 of 2021 Applicant :- Ali (Minor) Opposite Party :- State of U.P.
Counsel for Applicant :- Bed Prakash Rai Counsel for Opposite Party :- G.A.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the applicant, Sri Vikas Sahai, the learned A.G.A. for the State and perused the record.
The instant application has been moved seeking anticipatory bail in light of the apprehension of the arrest of the applicant in Case Crime No.290 of 2021, under Sections 147, 323, 504, 286, 506 IPC, police station Dhumanganj, District Prayagraj.
Admittedly the applicant is a minor. The question of whether a minor can be arrested under the general provisions made in that respect under the Cr.P.C. and the maintainability of a petition under Section 438 Cr.P.C. fell for consideration of this Court in Shahaab Ali (Minor) And Another Vs. State of U.P. [2020 (2) ADJ 130].
The stand of the State as urged in that case was noticed as under: -
"3. The principal question which has been raised is whether a petition under Section 438 of the Criminal Procedure Code at the behest of a child in conflict with law would be maintainable. According to Sri Vikas Sahai, the learned A.G.A., the application under Section 438 of the Criminal Procedure Code at the behest of a minor is not maintainable since the apprehension of arrest is misplaced. According to the learned A.G.A. the Juvenile Justice (Care and Protection of Children) Act 2015 (2015 Act) and more particularly Sections 10 and 12 thereof put in place a detailed procedure to deal with the investigation and trial of cognizable offences that may be committed by minors. It was submitted that in terms of Section 10 of the 2015 Act, a child cannot be arrested and since he is only apprehended and placed in the charge of the Special Juvenile Police Unit (SJPU) or the designated Child Welfare Police Officer (CWPO) for production before the concerned Juvenile Justice Board (Board) within 24 hours of such apprehension, the jurisdiction of the Court under Section 438 of the Criminal Procedure Code is not liable to be invoked. The Court notes that different High Courts of the country have taken a conflicting view on the maintainability of a petition for anticipatory bail at the behest of a minor. There is however no authoritative pronouncement of this Court on the question that is raised. In view thereof and since the issue is likely to arise in future also, it would be appropriate to clarify the legal position. The position with respect to the maintainability of a petition in light of the inherent attributes of the remedy provided by Section 438 would have to be decided bearing in mind the twin scenarios in which a petition for anticipatory bail by a minor may be presented before this Court. The first and obvious situation would be where the minor approaches this Court after the registration of a first information report alleging commission of a cognizable offence while the second could be where a minor apprehends arrest and detention prior to the registration of a first information report. The Court proposes to deal with and answer the question of maintainability with reference to the two foreseeable situations noted above."
While dealing with the question of maintainability of a petition under Section 438 Cr.P.C., this Court held as follows:-
"32. A clearer and a more sustainable answer clearly flows from the recognition of the 2015 Act as being a complete code in itself. As has been noticed in the earlier parts of this decision, the enactment lays in place an all encompassing and comprehensive statutory regime dealing with a child in conflict with law and issues arising from and pertaining to the apprehension, detention, prosecution, penalty and imprisonment of such a child. This is clearly evident from a reading of Section 1(4). This singular provision is clearly indicative of the legislative intent to confer upon the 2015 Act exclusivity and an overriding effect insofar as these subjects in relation to a child in conflict with law are concerned. It is the provisions of Section 1(4) and the special and distinct procedure as laid in place which appears to indicate and imply that Section 438 Criminal Procedure Code would have no application. The Court also bears in mind that both Sections 10 and 12 lay down a detailed procedure and statutory mechanism which must be mandatorily followed consequent to the apprehension of a child in conflict with law. These provisions neither entail nor envisage the detention or placement of the child in a jail or police lock-up. As is manifest from the procedure as laid down in Section 10 the child upon being apprehended by the police has to be immediately placed in the custody and care of the SJPU or the CWPO to be produced before the concerned Board without any loss of time and in any case within 24 hours of apprehension. During the period before his production before the Board the child is to be placed in an observation home. The provision also does not empower the authorities to question or interrogate. As is evident from the provisions made in the Model Rules he is to be interviewed by the SJPU or the CWPO bearing in mind the salutary safeguards that have been put in place. In terms of Section 12 the Board is obliged to forthwith release the child unless it forms the opinion that hid release would fall within the ambit of the Proviso to Section 12 and be not conducive to the over all interest of the child. This Court is consequently of the view that the principal trigger which confers the right of an individual to invoke the provisions of Section 438, namely, of arrest and detention by the police is absent. It consequently must be held that the need to invoke the jurisdiction of either the High Court or the Court of Sessions as conferred by Section 438 of the Criminal Procedure Code is clearly obviated.
33. More importantly, the special provisions laid in place clearly indicate that the provision of pre-arrest bail as made in Section 438 of the Criminal Procedure Code would clearly impede, hinder and may even disrupt or retard the mandatory statutory procedure which is liable to be adhered to in view of the provisions made in the 2015 Act and the Model Rules. The 2015 Act lays in place a complete machinery to deal with issues that may arise on account of the apprehension of a child in conflict with law. An order of anticipatory bail would clearly disrupt and interfere with the salutary process statutorily constructed.
34. That only leaves the Court to deal with a situation where a child apprehends his arrest or detention prior to the registration of a first information report or prior to the recordal of a cognizable offence not falling in the genre of a heinous offence by the SJPU or the CWPO. It becomes relevant to note that in terms of the provisions made in Rule 8 of the Model Rules, the process is initiated either upon the registration of a first information report in the case of a heinous offence or where any other cognizable offence not entailing imprisonment of more than seven years comes to be recorded. The procedures as contemplated in Sections 10 and 12 read with Rules 8 and 9 would stand initiated only upon the recordal of information. However as has been consistently held the powers conferred by Section 438 Cr.P.C. can be invoked even before a report in respect of a cognizable offence is made or recorded. During this period and in such a situation the child has no remedy or avenue of protection under the 2015 Act. Prior to the registration or recordal of information in respect of a cognizable offense, the child would consequently be left with no remedy against an apprehended deprivation of liberty. The Court cannot possibly leave a child in such a situation with no avenue of redress or protection against a potential deprivation of liberty. It is only within this limited window that perhaps the right of a child in conflict with law to invoke Section 438 can possibly be recognised. The Court is of the considered view that the right conferred by Section 438 of the Criminal Procedure Code would be entitled to be invoked by a child apprehending arrest prior to the registration of a first information report in the case of a heinous offense or recordal of information in respect of other offenses and prior to Section 10 and other provisions of the 2015 Act coming into play."
Notwithstanding the above, insofar as the issue of detention and arrest is concerned, the State took the position that no arrest of a minor could possibly be affected except in accordance with the provisions made in that regard under the 2015 Act. It is that position which is reiterated by learned AGA in this petition also with the State respondent submitting that no arrest can be made and further steps would have to be taken strictly in consonance with the provisions made in the 2015 Act. The aforesaid submission and statement which is taken on record would thus allay the apprehension that is voiced on the part of the applicant.
Accordingly, the petition stands disposed of in light of the above.
Order Date :- 20.5.2021 Vivek Kr.
Digitally signed by Justice Yashwant Varma Date: 2021.05.21 10:06:09 IST Reason: Document Owner Location: High Court of Judicature at Allahabad