IMPORTANT POINT
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.

JUDGMENT

G.S.SANDHAWALIA, ACJ.

1. The present judgment shall dispose of 33 petitions while going on to decide the legal issue regarding the maintainability of an application by a juvenile for grant of pre-arrest bail under Section 438 Cr.P.C. since conflicting views have been taken by learned Single Judges of this Court in view of provisions of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short 'the 2015 Act').

2. The learned Single Judge on 11.08.2020 noted the cleavage of opinion while referring to three judgments which took the larger view and opened the window to the right of the juveniles to agitate and seek pre-arrest bail. The views of the other Courts were also kept in consideration which included the Division Bench judgments of Calcutta High Court and Chhattisgarh High Court, which were to the contrary. Resultantly, the matter was referred to be placed before a Bench of appropriate strength to resolve the issue while extending the interim protection granted earlier to the petitioner whereby, he had been directed to join investigation as and when called upon and was to abide by the conditions as provided under Section 438(2) Cr.P.C. Resultantly, various other cases have also been clubbed by other learned Single Judges to be heard with said reference.

3. The limited factual matrix which is to be noticed is that the petitioner is stated to be 17 years of age having been born on 27.03.2003 as per the birth certificate issued by the Registrar, Births & Deaths, Jalandhar which is further authenticated by the school certificate (Annexure P-2), who was involved in FIR No.13 dated 06.02.2020 registered at P.S. Cantt., District Jalandhar under Sections 323, 324, 427, 451, 148 and 149 IPC lodged by one Sandeep Kumar and Section 307 IPC has been added later on. The Additional Sessions Judge, Jalandhar dismissed the anticipatory bail application on the ground that the petitioner alongwith others armed with deadly weapons formed the unlawful assembly in prosecution of common/unlawful object and caused the injuries on the person of the complainant which had been declared grievous in nature being on the vital part of the body i.e. head and investigation was still going on and co-accused were yet to be arrested. Recovery of weapons having to be made, therefore, the custodial interrogation of the accused was held to be necessary. Resultantly, the present petition came to be filed before this Court whereby, the interim order was granted on 08.07.2020 while noting the contention of the counsel that the petitioner was not named in the FIR and injuries had been suffered on both sides. The judgment was reserved on 07.08.2020 by the learned single Judge and then referred to a larger Bench on 11.08.2020, as noticed above.

4. We had asked Ms. Tanu Bedi, Advocate to assist this Court as Amicus Curaie, who has accordingly argued in favour of the larger picture of the exercise of jurisdiction by the Courts rather than taking the restrictive view on the ground that the petition is not maintainable, as put forth by Mr. Pawan Girdhar, Addl. A.G., Haryana assisted by Mr. Apoorav Garg, Sr. DAG, Haryana. Similarly, Mr. ADS Sukhija, Addl. A.G., Punjab has brought to our notice the relevant provisions.

5. A brief run up of the two different views taken by the various High Courts would be necessary before we take an independent call on the issue and make up our minds as which of the paths to tread being at the cross roads at this point of time.

The Broader View:

6. The Division Bench of Chhattisgarh High Court in Sudhir Sharma vs. State of Chattisgarh, (2017) SCC Online Chh 1554 traced the history of the anticipatory bail and suggestions made by Law Commission of India, the incorporation as such of Section 438 in the Code of Criminal Procedure, 1973 while drawing strength from the judgment of the Constitution Bench of the Supreme Court in the case of Gurbax Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565. It was noticed t