Anticipatory bail is available to children in conflict with law under Section 438 Cr.P.C., as the Juvenile Justice Act does not explicitly prohibit it, supporting personal liberty as per Article 21.

JUDGMENT :

SONI SHRIVASTAVA, J.

Heard Mr. Ravindra Kumar, learned counsel for the petitioner, Mr. Nadim Seraj, learned GP-5 appearing on behalf of State, especially appointed by the learned Advocate General, assisted by Mr. Ali M. Ahmed and Mr. Shahbaj Alam, learned AC to GP-5, Mr. Nand Kishore Prasad, learned APP for the State and Mr. Abhay Shankar Singh, learned Advocate appointed as Amicus Curiae in this case.

2. By way of filing the present application, the very basic right i.e. fundamental right of protection of life and personal liberty as enshrined under Article 21 of the Constitution of India has been invoked to assert the legal right of a child in conflict with law. The present case deals with seeking anticipatory bail under Section 438 of the Cr.P.C by a child in conflict with law (here-in-after referred to as “CICL”), which does not expressely feature upon a plain reading of the Juvenile Justice (Care and Protection of Children) Act, 2015 (here-in-after referred to as “J.J. Act”). Article 21 of the Constitution of India, no doubt is a corner stone of all fundamental rights, which in unequivocal terms gurantees that no person shall be deprived of their life or personal liberty, except according to the procedure established by law, meaning thereby that all persons are entitled to a dignified life, a healthy environment and a personal freedom of making their own choices and pursuing their own interests, within the legal framework.

3. This Court would later embark upon the facts and merits of the case and as of now, would advert to the maintainability of the present anticipatory bail application filed on behalf of a juvenile/CICL, as a preliminary objection has been raised by the learned APP appearing on behalf of State on the ground that there is no provision regarding applicability of Section 438 of the Cr.P.C. under the J.J. Act, 2015 and the said Act is a complete Code in itself.

4. In order to reach a reasonable and logical conclusion, this Court has sought the assistance of Mr. Abhay Shankar Singh, learned Amicus Curiae and has also requested the Office of the learned Advocate General for providing due assistance to this Court as an important question of law is involved and hence, Mr. Nadim Seraj, learned Government Advocate appears for the necessary assistance.

5. It has been argued by learned counsel appearing for the petitioner that the present application on behalf of a juvenile is maintainable in the eyes of law and he has initiated his argument by making a reference to some relevant extracts of the Preamble to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20.11.1989 which are quoted here-in-below:-

“Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance,

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities with the community,

Recognizing that the child, for the full and harmonious development of his or her personality, should