JUDGMENT :

Sarang V. Kotwal, J.

1. “In absence of provisions of grant of anticipatory bail under the Juvenile Justice (Care and Protection of Children) Act, 2015, whether a juvenile in conflict with law can file such application under Section 438 of the Code of Criminal Procedure ?”

This is the question, which we are required to answer in this reference.

2. The Anticipatory Bail Application No.277 of 2022 was rejected by a Single Judge Bench of this Court (Coram: Smt. Vibha Kankanwadi, J.) on the ground that it was filed by the applicants who were minors. They were covered by the definition of “Child in conflict with law” as defined under the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the “JJ Act”); and therefore, their application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was not maintainable. Learned Judge referred to various judgments of different High Courts and differed with the view with two orders of other Single Judge Benches of this Court in the following two cases :

(i) Yogesh Jagdish Joshi Vs. Sate of Maharashtra, in Criminal Application No.2822 of 2001, decided on 18th September, 2021 (Coram: A.B. Palkar, J.) ; and

(ii) Snehal @ Abhi S/o. Dinesh Shendre Vs. State of Maharashtra, in Criminal Application (ABA) No.884 of 2018, decided on 10th December, 2018 (Coram: M.G. Giratkar, J.).

Snehal Shendre’s order was based on Yogesh Joshi’s order.

3. Learned Single Judge while passing the order in Anticipatory Bail Application No.277 of 2022 relied on following judgments in support of the view that she was taking :

(a) Suhana Khatun and Ors. Vs. State of West Bengal, decided on 20th January, 2022, in CRM No.2739 of 2021, by a Division Bench of the High Court of Calcutta ;

(b) Satendra Sharma Vs. The State of M.P., decided on 8th July 2014, in MCRC No.4183 of 2014, by a Single Judge Bench of the High Court of Madhya Pradesh (Gwalior Bench) ; and

(c) Ankesh Gurjar Vs. State of M.P., decided on 20th January, 2021, in Criminal Revision No.2112 of 2020, by a Division Judge Bench of the High Court of Madhya Pradesh (Gwalior Bench).

Learned Judge relied on many other judgments. However, their respective views and reasoning behind those views are similar and therefore, we have listed the prominent judgments referred to by learned Single Judge.

4. Learned Single Judge while passing the order in Anticipatory Bail Application No.277 of 2022 referred to following judgments which hold that such application under Section 438 of the Cr.P.C. was maintainable :

(a) Miss Surabhi Jain (Minor) & Ors. Vs. The State of West Bengal, decided on 23rd August, 2021, in C.R.M. 405 of 2021 with CRAN 1 of 2021, by a Division Bench of the Calcutta High Court ; and

(b) Kureshi Irfan Hasambhai Vs. State of Gujarat, decided on 9th June, 2021, in Criminal Misc. Application No.6978 of 2021, by a Single Judge Bench of the High Court of Gujarat.

5. In view of her disagreement with the view expressed by other Single Judge Benches of this Court, reference was made to a division bench, which we are called upon to decide as mentioned earlier. We requested Shri Rajendra S. Deshmukh, learned Senior Counsel to appear and assist the Court as Amicus Curiae. He made his submissions. Shri Suvidh S. Kulkarni, learned counsel appeared for the original applicants and Shri A.V. Deshmukh, learned APP appeared for the State of Maharashtra. Before discussing further, it is necessary to note that Anticipatory Bail Application No.277 of 2022 is already disposed of by holding that it was not maintainable as mentioned earlier. Therefore, it is not necessary to refer to the facts of the case. We are discussing the issue and recording our conclusion only on the point of reference.

SUBMISSIONS OF THE AMICUS CURIAE SHRI RAJENDRA S. DESHMUKH, LEARNED SENIOR COUNSEL :

6. Shri Rajendra Deshmukh, learned Senior Counsel supported the view that the application under Section 438 of the Cr.P.C. by a child in conflict wi