IMPORTANT POINT
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.

JUDGMENT

Yashwant Varma, J.—Heard learned counsel for the applicants, Sri Vikas Sahai learned A.G.A. for the State and perused the record.

The applicants who are minors have petitioned this Court through their natural guardian seeking anticipatory bail in Case Crime No. 305 of 2019 under Sections 420, 467, 468, 471, 120B, 504 and 506 IPC, Police Station Tanda, District Rampur.

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 20151 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 Unit2 or the designated Child Welfare Police Officer3 for production before the concerned Juvenile Justice Board4 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.

In order to deal with the question that is raised, it would firstly be necessary to notice the provisions made in the 2015 Act as also the provisions that were engrafted and put in place in the Juvenile Justice (Care and Protection of Children) Act, 2000 Act5 which since stands repealed. Dealing firstly with the provisions contained in the 2000 enactment, it becomes pertinent to notice the provisions made in Section 1(4) thereof:

“1. [(4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law.]”

The 2000 Act envisaged the constitution of a Board in terms of Section 4 that read thus: -

“4. Juvenile Justice Board.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government may,[within a period of one year from the date of commencement of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, by notification in the Official Gazette, constitute for every district], one or more Juvenile Justice Boards for exercising the powers and discharging the duties conferred or imposed on such Boards in relation to juveniles in conflict with law under this Act.

(2) A Board shall consist of a Metropolitan