An application for anticipatory bail under Section 438 of the Code at the instance of a minor/juvenile is not maintainable due to the comprehensive and distinct procedure laid down in the Juvenile Justice Act of 2015, which does not provide for the apprehension or detention of a child in conflict with law.

ORDER :

Bivas Pattanayak, J.

This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) at the instance of four minor/juvenile persons filed in connection with Raghunathganj Police Station case no. 12 of 2021 dated 07.01.2021 relating to offences under Section 341/325/326/307/302/34 of the Indian Penal Code.

2. Precisely the allegations levelled against the petitioners and the other FIR named accused persons in the instant case is that in relation to a civil dispute the accused persons on 06.01.2021 at about 11PM attacked and assaulted the father-in-law of the complainant and when the family members of the complainant tried to restrain them they were also assaulted by the accused persons. In consequence of such assault several persons sustained injuries and were treated in the hospital. Out of several injured, the mother-in-law of the complainant namely Patani Bibi, being one of the injured, was declared dead by the attending doctors. On the basis of the aforesaid allegations FIR was registered against the petitioners and others and the case was taken into investigation.

3. The principal question pertaining to the instant petition is whether an application for anticipatory bail under Section 438 of the Code at the behest of a juvenile/minor is maintainable. Therefore, before delving into any other points involved in the case, the question of maintainability of the present application for anticipatory bail preferred at the instance of juveniles/minors under Section 438 of the Code is to be decided.

4. It was submitted by the learned counsel for the petitioners that from the provisions of law embodied under the Juvenile Justice Act of 2015, no mechanism is in place to deal with child/juvenile till the time such child is apprehended or is brought before the Board. Section 12 of the Act of 2015, takes into its sweep the modalities to be followed when a child/juvenile is placed before the Board whereas Section 10 of the Act of 2015, provides the mechanism of apprehension of a child/juvenile. Further the non-obstante clause as occurred in Section 12 of the Act of 2015, carves out an exception from the general provisions of bail and bonds as enumerated under the provisions of Criminal Procedure Code. The said non-obstante clause however does not abrogate the provision of anticipatory bail/pre-arrest bail as provided under Section 438 of the Code He further stressed on this aspect that though Section 4(2) of the Code provides that the special provisions will prevail upon the provisions of the Code for grant of bail but that cannot per se exclude the rest of the provisions of the Code. Further, the provisions under Section 438 of the Code for anticipatory bail create a different niche and therefore the same cannot be construed to be excluded by way of necessary implication and a person has a right not to be hounded by the police and the mechanism provided under the Act of 2015, which is silent about the stage anterior to apprehension/production of a child/juvenile cannot be interpreted to exclude the provision of Section 438 of the Code. Moreover, the provisions of Section 3 of Act of 2015, if interpreted can safely be concluded that the structure of Act of 2015 does not exclude the provisions of anticipatory bail/pre-arrest bail under Section 438 of Criminal Procedure Code. Moreover, he drew our attention that the Act of 2015 is a beneficial legislation and on necessary implication cannot be construed to exclude another beneficial provision which is a component of Article 21 of the Constitution of India.

It was further submitted on behalf of the petitioners that the legislatures in some of the Special enactments namely Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 have expressly excluded the provisions of Section 438 of the Code but there is no such legislative prescription excluding such provisions from Act of 2015 expressly. Theref