IMPORTANT POINT
Petition under Section 438, Cr.P.C. is not maintainable in case of a juvenile.

JUDGMENT (ORAL)

Rajesh Bhardwaj, J.—Matter has been taken up through video conferencing via Webex facility in the light of the Pandemic Covid-19 situation and as per instructions.

2. Prayer is made for the grant of anticipatory bail to the petitioner in case FIR No.65 dated 26.04.2021, under Section 8 of Protection of Children from Sexual Offence Act, 2012 (for short ‘the Act’) at Police Station Satnali, District Mohindergarh, Haryana.

3. Learned counsel for the petitioner has vehemently contended that the petitioner has been falsely implicated. No offence as alleged in the FIR is made out against him.

4. Admittedly, the petitioner before this Court is a juvenile and hence before appreciating the merits of the case, the issue of the maintainability of the petition on behalf of a juvenile under Section 438 of Code of Criminal Procedure (for short ‘Cr.P.C’) is of prime importance. For dealing with the juvenile, the relevant Act is The Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ‘the Act’), which is a complete Code in itself and has specific provision for dealing with the child in conflict with law. Section 10 deals with apprehension of the child alleged to be in conflict with law and Section 12 pertains to bail to a person who is apparently a child alleged to be in conflict with law. The legislature mandates that as soon as a child is apprehended by the police, he shall be produced before the Board without any loss of time. The provisions of Section 12 would show that when any child in conflict with law is brought before a Board then such person notwithstanding anything contained in the Cr.P.C. or in any other law for the time being in force, be released on bail with or without surety. Proviso to this Section 12 further mandates that if it appears to the Board that there are reasonable grounds for believing that the release of the child in conflict with law, is likely to bring that person in association with any known criminal or expose the said person to moral, physical or psychological danger or the person’s release would defeat the ends of justice then the Board shall record the reasons for denying the bail.

5. Whereas the provisions of Section 438 Cr.P.C. are enumerated for granting the bail to the person who has apprehension of arrest. A reading of provisions of Section 438 Cr.P.C. vis-a-vis of relevant provisions of the Act would show that a juvenile cannot be arrested and thus, there is no question of apprehension of his arrest. Hence, the petition under Section 438 Cr.P.C. is not maintainable in case of a juvenile. A similar controversy came up before the Hon’ble Division Bench of the High Court of Madras in K.Vignesh Vs. State rep. By the The Inspector of Police, C-3, Seven Wells Police Station, Chennai-600079, 2017 SCC OnLine Mad 28442, and Hon’ble Division Bench while dealing with the issue appreciated various provisions and observed in Para No.11 as under:-

“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 woul