The grant of anticipatory bail for a minor accused of serious offences should be carefully considered in light of the nature and gravity of the allegations, and the provisions of the Juvenile Justice Act, particularly S.18.

R. Rajendra Babu, J

1. The petitioner, a minor aged 14 years represented by his father, filed this petition for anticipatory bail in the event of his arrest in Crime 659/2000 of Thalassery Police Station. The above crime was registered against six persons including the petitioner alleging commission of offences under S.143, 147, 148, 448 and 302 r/w.149 IPC.

2. According to the prosecution six persons trespassed into the workshop where deceased Rajesh, Nandakumar (the first informant) and others were working, by about 10.30 am. On 26.10.2000. All the above six accused were armed with weapons like swords, chopper, chisel etc. and they attacked Rajesh inflicting several incised wounds. Further they attempted to attack others including Nandakumar and all of them ran off from the scene and hence could save their lives. As a result of the severity of the injuries inflicted on Rajesh, he died. It was further alleged that the deceased was an activist of the C.P.I.(M) whereas all the accused were B.J.P./R.S.S. activists and the murder was out of political rivalry. It was further alleged that the petitioner was the 4th accused in the crime and he attacked the deceased with a sword and inflicted injuries on him.

3. The main argument advanced by the learned counsel for the petitioner was that the petitioner, being a minor below the age of 16 years, is entitled to anticipatory bail in view of the first proviso to S.437(1) Cr.P.C. The learned Public Prosecutor submitted that S.437(1) applies only when the accused is produced or when he appears before court and applies for bail and the above provision does not prohibit the arrest of an accused who is a minor. Reliance was placed on the different provisions in the Juvenile Justice Act regarding the grant of bail to a juvenile accused. S.18 of the Juvenile Justice Act, 1986 deals with the bail and custody of juveniles. That above provisions would make it clear that there was no total prohibition of arresting an accused who was below the age of 16, but the prohibitions were only in respect of detaining such persons in prison. Where a person is alleged to have committed an offence of murder, anticipatory bail cannot be granted as a matter of course. The relevant considerations governing the grant of anticipatory bail under S.438 Cr.P.C. are materially different from those when an application for bail is filed by an accused who is arrested and produced. In AIR 1985 SC 969 the Supreme Court held that when a person is accused of an offence of murder, the court has to be careful and circumspect in entertaining an application for anticipatory bail and there should be some compelling reasons for grant of the same. The Supreme Court in State Rep. by the C.B.I. v. Anil Sharma (1997 SCC (Crl.) 1039) considered the importance of custodial interrogation and held:

"Custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under S.438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."

The accused has to be questioned as to the weapon used by him. Other details are also to be elicited from him. The gr