Point of Law: Liberty of a juvenile is the supreme factor, and he or she cannot be deprived of the liberty merely because there is no remedy seeking protection against his or her pre-arrest available under the Act

JUDGMENT :

1. The present application has been filed seeking bail under the provisions of Section 438 of the Code of Criminal Procedure, 1973 (for short “the Code”) in connection with the FIR being C.R. No.11205031210736 of 2021 registered with Mandvi Police Station, District Kachchh for the offence punishable under Sections 306, 498A, 323 and 114 of the Indian Penal Code, 1860 (for short “the IPC”).

2. The case of the prosecution in brief is that the present applicant, who is a minor, is responsible for instigating and abating the suicide committed by the daughter of the deceased, since the applicant was having love affair with the husband of the deceased.

3. Learned advocate Mr.J.M.Nayak appearing for the applicant has submitted that the applicant is a student and 17 years of age and being a juvenile, her case is governed by the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short “the Act”). It is submitted that in fact looking to the role of the applicant, the offence under Section 306 of the IPC is not established as she being a minor is not responsible for instigating or abating the deceased to commit suicide. It is submitted that the F.I.R is registered after two days of committing suicide.

4. Learned APP at the outset has questioned the maintainability of the present application. She has submitted that the application seeking anticipatory bail under Section 438 of the Code is not maintainable since there is no provision in the law to arrest a juvenile or a minor. In support of her submissions, she has placed reliance on the recent decision dated 21.06.2021 passed in Writ Petition No.12411 of 2021 of the Telangana High Court in case of Mr.Mohammed Bin Ziyad vs. The State of Telangana. She has submitted that the Telangana High Court has considered the judgment of this Court rendered in the case of Kureshi Irfan Hasambhai vs. State of Gujarat, dated 09.06.2021 passed in Criminal Misc. Application No.6978 of 2021, where this Hon’ble Court has held that an application under section 438 of the Code filed by a minor is maintainable. She has submitted that a conflicting view has been taken by the Talangana High Court. She has also referred to the judgment of the Division Bench of Madras High Court dated 27.04.2017, in the case of K. Vignesh vs. State, (2017) SCC online Madras 28442. It is submitted by her that since the legislature has consciously decided not to arrest a child in conflict with law, the present application seeking bail under the provisions of Section 438 of the Code is not maintainable. Learned APP has also placed reliance on the decision of the Punjab and Haryana High Court, dated 05.07.2021 passed in CRM-M-21406-2021 in the case of Piyush minor through his natural mother Smt. Nirmala Devi w/o Sh. Narender vs. State of Haryana. Thus, she has submitted that the decisions of both the High Courts are subsequent to the decision of this Court, holding that an application under the provisions of Section 438 of the Code is not maintainable. She has submitted that the Act does not provide any provision with regard to granting of anticipatory bail and hence, the present application may be rejected.

5. In response to the aforesaid submissions, learned advocate Mr.Nayak for the applicant has submitted that this Court, while examining various provisions of the Act this Court in the case of Kureshi Irfan Hasambhai (supra) has held that the application seeking anticipatory bail under the provisions of Section 438 of the Code is maintainable.

6. I have considered the rival submissions advanced by the learned advocates appearing for the respective parties. The judgements cited at the bar are also perused

7. As noticed hereinabove, there are conflicting decisions rendered by the Coordinate Bench of this Court in the case of Kureshi Irfan Hasambhai (supra) and in case of Mr.Mohammed Bin Ziyad (supra). The Telangana High Court, after considering the decision of this Court has opined that the bail un