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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
HON’BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI, HON’BLE MR. JUSTICE KARDAK ETE
Dasarath Ray @ Dipjyoti Roy – Petitioner
Versus
The State of Assam Rep. By The P.P., Assam. - Respondent
AB/3286/2023
Decided On : 29-07-2024
Key Points: - The Court held that a juvenile can file anticipatory bail under Section 438 Cr.P.C. before actual apprehension, despite the Juvenile Justice Act not using the term "arrest" (!) (!) (!) (!) (!) . - There is no express bar in the Juvenile Justice Act 2015 preventing applicability of Section 438 Cr.P.C.; the Act is a complete code for post-apprehension matters, but does not negate pre-apprehension bail rights under Cr.P.C. (!) (!) . - The reference was answered affirmatively: anticipatory bail applications by juveniles are maintainable under Section 438 Cr.P.C. or BNSS Section 482, as applicable, before apprehension (!) (!) . - The Allahabad High Court's reasoning in Mohammad Zaid v. State of U.P. and the Punjab and Haryana High Court in Jatin v. State of Punjab supported maintainability; Kara Taling’s view was disagreed in this judgment (!) (!) (!) . - BNSS Section 482 provides directional bail for a person who believes they may be arrested on a non-bailable offense, including conditions for interrogation and travel restrictions; this is discussed as the applicable framework post-2024 (!) (!) (!) (!) .
JUDGMENT :
Vijay Bishnoi, CJ.
1. Heard Mr. B. Bora, learned counsel appearing for the applicant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the respondent State of Assam.
2. The matter is placed before us to answer the following question referred to us by the learned Single Judge in this Anticipatory Bail Application.
3. The events leading to place this Reference before this Court are as under:
“7. Having heard the submissions of learned Advocates of both side, I have carefully gone through the petition and the documents placed on record and also perused the case laws referred by them. Admittedly, there is no decided case law of Hon’ble Supreme Court on this point. Also perused the relevant provision of the Juvenile Justice (Care and Protection of Children) Act, 2015.
8. It appears that Juvenile Justice (Care and Protection of Children) Act 2015, is a Special Act. It was enacted with the objective of consolidating and amending the law relating to children who are found to be in conflict with law and the children who needs care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, herein under and for matters connected therewith or incidental thereto.
9. Section 12 of the Act deals with bail of juvenile. It provides that:-
(1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a Probation Officer or under the care of any fit. Provided that such person shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice and the Board shall record the reasons for denying the bail and circumstances that lead to such a decision.
(2) When such person having been arrested is not released on bail under sub-section (1) by the officer in-charge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order.
(4) When a child in conflict with law is unable to fulfil the condition of bail order within seven days of bail order, such child shall be produced before the Board for modification of the conditions of bail.
10. A cursory perusal of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, reveals that the Act itself is a complete code to deal with any eventualities relating to a child in conflict with law. The aforesaid Act was enacted to protect the inte
A juvenile can file for anticipatory bail under Section 438 of the Cr.P.C. before actual apprehension, as the absence of 'arrest' in the Juvenile Justice Act does not negate this right.
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 Ju....
Juveniles in conflict with law can seek anticipatory bail under Section 438 Cr.P.C., as the provisions of the Juvenile Justice Act do not exclude this right.
Juveniles in conflict with the law have the right to seek anticipatory bail under Section 438 Cr.P.C., as the provisions of the Juvenile Justice Act do not exclude this remedy.
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
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.
The Juvenile Justice Act, 2015, consciously omitted to provide anticipatory bail for juveniles, considering the absence of the concept of 'custody' and the rehabilitatory, reformatory, and beneficial....
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