Mohammad Zaid vs State of U. P. - 2023 Supreme(All) 1836

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1836

IN THE HIGH COURT OF ALLAHABAD
Pritinker Diwaker, CJ., Samit Gopal, JJ.
Mohammad Zaid – Applicant
Versus
State of U.P. and Another – Opposite Parties
Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C. No. – 8361, 7647, 8222, 8300, 8506, 9100, 9323, 9699 Of 2020, Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C. No. 1253, 2863, 3665, 4034, 4050, 4204, 4247, 4811, 5243, 5425, 6008, 6069, 6162, 7654, 7961, 11149, 17265 Of 2021, Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C. No. 7966, 8763, 11280, 11945, 11946, 12323, 12787 Of 2022
Decided On : 24-05-2023

Advocates:
Advocate Appeared:
For the Applicant : Brij Raj Singh, Rajrshi Gupta, Dileep Kumar(Senior Adv.), Shambhawi Shukla, Deepak Kumar Srivastava, Ramesh Chandra Yadav, Om Prakash Vishwakarma, Ramanand Gupta, Sanjay Kumar Yadav, Mohd. Akbar Shah Alam Khan, Rameshwar Prasad Mishra, Rajneesh Kumar Upadhyay, B.N.Singh, Manish Kumar Singh, Istyak Khan, Abdul Majeed, Sufia Saba, Gauri Dubey, Gautam Dubey, Santosh Kumar Tiwari, Shashikant Mishra, Akhilesh Singh, Shivam Yadav, Vikrant Singh Parihar, Ashutosh Kumar Pandey, Arjit Srivastava, Usha Srivastava, Vinod Kumar Srivastava, Anoop Singh, Ashok Kumar Singh, Babu Lal Ram, Rajesh Kumar Sachan, Shailendra Kumar Rai, Anil Kumar Dubey, Vinit Mishra, Meena Mishra, Munna Tiwari, Amit Daga, Umesh Chandra Shukla, Samir Srivastava, Ravitendra Pratap Singh Chandel, Tabrez Ahmad, Aishwarya Pratap Singh, Shri Niwash Yadav, Ravi Prakash Singh Yadav, Mujiburrahman, Firoz Haider, Rohit Nandan Singh
For the Respondent: Mohammad Alam, Avnish Kumar Srivastava, Sanjay Kumar Pal, Sudheer Rana, Geeta Kushwaha

Headnote:(A) Juvenile Justice (Care and Protection of Children) Act, 2015 - Sections 1(4), 10, 12, 14, and 15 - Criminal Procedure Code, 1973 - Section 438 - Anticipatory bail for children in conflict with law - The court holds that there is no bar under the JJ Act preventing a child from seeking anticipatory bail under Section 438 - The right to seek anticipatory bail is available even post-FIR, subject to statutory conditions - The legislature has not explicitly prohibited the application of Section 438 to children, preserving their right to seek relief against arbitrary detention. (Paras 25, 11, 12, 19, 24)

(B) Judicial analysis on the maintainability of anticipatory bail for juveniles highlighted conflicting legal interpretations, necessitating a reference to a Larger Bench for resolution. Findings indicate that, per legislative intent, children's rights to protection should include anticipatory bail to ensure fairness and prevent unjust detention. (Paras 6, 10, 19)

(C) Final stance confirms the necessity for judicial processes protecting children's rights to be closely aligned with broader principles of justice and liberty in criminal responsibility, emphasizing equal rights for all individuals, including children. (Paras 10, 25)

Table of Content
1. questions regarding anticipatory bail for minors (Para 1 , 2)
2. overview of connected cases and issues (Para 3 , 5)
3. arguments on applicability of anticipatory bail (Para 4)

JUDGMENT :

1. The Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. -8361 of 2020 (Mohammad Zaid Vs. State of U.P. and another) has been placed before this Larger Bench on a reference made by a learned Single Judge, for the following questions to be answered :-

(ii) Whether Section 1 (4) of the J. J. Act, 2015 excludes the application of Section 438 Cr.P.C. to a child in conflict with law after the F.I.R. is registered against him as held by this Court in the case of Shahaab Ali (Minor) (supra) ?

(iii) Whether the arrest/apprehension/bail of a child in conflict with law is necessary during the inquiry by the Board about the nature of offences alleged against him u/s 14 of the J. J. Act, 2015; during preliminary assessment into heinous offence by Board u/s 15 of the J. J. Act, 2015 read with exercise of power u/s 94 of the J. J. Act, 2015 for determination of age of child in conflict with law, where required and before passing of order u/s 17 of the J. J. Act, 2015 that child has not been found in conflict with law or u/s 18 (3) of the J. J. Act, 2015 that the child in conflict with law has been found involved in commission of heinous offence ?

(iv) Whether only after a child in conflict with law is found involved in heinous offence and other non-bailable offence and found to be juvenile by the Board, he should be directed to surrender and obtain bail as per Section 12 of the J. J. Act, 2015 and not all the children allegedly in conflict with law, arrested/apprehended be compelled to seek bail u/s 12 of the J. J. Act, 2015 before inquiry u/s 14 of the J. J. Act, 2015 and preliminary assessment into heinous offence u/s 15 of the J. J. Act, 2015 is concluded and order u/s 17/18 of the J. J. Act, 2015 is passed, wherein a child may not be found to be a child in conflict with law or juvenile at all?

(v) Whether there is presumption in the J. J. Act, 2015 that by lodging of mere F.I.R against a juvenile, he becomes a child in conflict with law who has committed an offence, without any enquiry, preliminary assessment into a heinous offence and determination of his age and his declaration of being involved in an offence and he is only required to obtain bail as per Section 12 of the Act aforesaid and cannot be granted anticipatory bail ?

(vi) Whether the production of child in conflict with law before the Board for enquiry u/s 14 and preliminary assessment into heinous offence u/s 15 of the J. J. Act, 2015 where required, cannot be done while he is on anticipatory bail and his arrest/apprehension is compulsory ? ”

2. Reference to a Larger Bench occasioned before the learned Single Judge due to an order dated 20.1.2022 passed by another learned Single Judge in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 597 of 2020, (Shahaab Ali (Minor) and another vs. State of U.P.) in which, a question was raised before the said Court, as to whether a petition under Section 438 of the Code of Criminal Procedure, 1973 at the behest of child, in conflict with law, would be maintainable. After considering the same, the said Court reached to a conclusion that the same is not maintainable. The conclusion as reached therein is as follows:-

In the present case