JUDGMENT :

(Robin Phukan, J.) : -

1. Heard Mr. N. Ratan, learned counsel for the petitioner. Also heard Mr. U. Bori, learned Additional Public Prosecutor for the State respondent.

2. This application, under Sec. 438 of the Cr.P.C., is preferred by Shri Tadas Rab Kara, representative (maternal uncle) of Shri Nana Tania (actual name withheld) a minor (17 years), for granting him pre-arrest bail in connection with Itanagar Women P.S. Case No. 45/2022, under Ss. 341/376/354-C/323/506 of the Indian Penal Code.

3. The factual background leading to filing of the present petition is briefly stated as under:-

"On 30/3/2022, one Smti Kara Pera of Chimpu Village under Itanagar Police Station, lodged one F.I.R. with the Officer-In-Charge, Women Police Station, Itanagar, to the effect that on 29/1/2022, at Sagalee, the petitioner committed rape upon her inside a rented room and thereafter on 5/2/2022, he again committed rape on her at her residence at Chimpu and thereafter on 25/3/2022, he restrained her wrongfully while started investigation. Then, on apprehension of arrest, the petitioner filed the present petition for granting him pre-arrest bail."

4. While the case was fixed for hearing on 6/4/2022, Mr. U. Bori, learned Additional Public Prosecutor, has raised objection about entertaining this petition as, admittedly, the person concerned is a juvenile. The factum of juvenility is not disputed by Mr. N. Ratan, learned counsel for the petitioner and, accordingly, the case was listed for hearing on 21/4/2022, on the question of maintainability. Accordingly, both the parties were heard on 21/4/2022.

5. Mr. U. Bori, learned Additional Public Prosecutor, relied upon several case laws -(i) (2016) 2 CalCriLR 561, (ii) Mominul Islam Vs. State of Assam (AB No. 1661/2019), (iii) Satendra Sharma Vs. State of M.P. [2014 0 Supreme(MP) 354], (iv) Shahaab Ali (Minor) and Anr. Vs. State of U.P. [2020 1 Crimes(HC) 276], and (v) Suhana Khatun and Ors. Vs. State of West Bengal [CRM No. 2739 of 2021], submits that the present petition is not maintainable as the 2015 Act is a Special Act meant especially for juvenile. Mr. U. Bori, learned Additional Public Prosecutor, further submits that there is no provision for arrest of juvenile in the Juvenile Justice Act. The word mentioned therein is only 'apprehended' and in such cases, he has to be dealt with as per the provision of the Juvenile Justice (Care and Protection of Children) Act, 2015, and there is implied exclusion of Sec. 438 Cr.P.C. Having carefully gone through the case laws referred by Mr. Bori, I find substance in the same and the law laid down in the cases referred by him also fortified his submissions.

6. On the other hand, Mr. N. Ratan, learned counsel for the applicant, submits that there are conflicting judgments about maintainability of the petition for granting anticipatory bail to a juvenile under Sec. 438 of the Cr.P.C. Mr. Ratan, learned counsel for the petitioner, has referred one case law of Madras High Court in K. Vignesh Vs. State represented by the Inspector of Police, Chennai [(2017) 0 Supreme (Mad) 892], wherein, a Division Bench of Madras High Court has held that a child in conflict in law cannot be arrested and thus there cannot be any apprehension of arrest, so an application at the instance of the child in conflict with law, either before the High Court or before the Court of Sessions, under Sec. 438 Cr.P.C. is not maintainable. Mr. Ratan also referred another case law in Piyush, minor through his natural mother Smt. Nirmla Devi wife of Sh. Narender Vs. State of Haryana [(2021) 3 Crimes (HC) 138], wherein, a Single Judge also held that petition under Sec. 438 Cr.P.C. preferred by a juvenile is not maintainable. Mr. Ratan also made a reference to a judgment of Gujarat High Court in the case of Kureshi Irfan Hasambhai Thro Kureshi Kalubhai Hasambhai Vs. State of Gujarat [Criminal Misc. Application No. 6978 of 2021], wherein, it has been held that the application is maintainable.