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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
RAVINDRA MAITHANI, J.
Rashid Rao – Appellant
Versus
State of Uttarakhand – Respondent
Anticipatory Bail Application No. 52 of 2022
Decided On : 24-05-2022
Anticipatory Bail - Juvenile Justice Act - Section 376, 323, 504, 506 IPC - Sections 1(4), 10, 12 - The court discussed the provisions of the Juvenile Justice Act, particularly the overriding effect of the Act in matters concerning children in conflict with law, the apprehension and detention of a child in conflict with law, and the distinct provisions for bail under the Act. The court concluded that anticipatory bail may not be granted under the Act and dismissed the applicant's anticipatory bail application.
Fact of the Case:
Applicant facing trial in FIR No. 100 of 2020 under Sections 376, 323, 504, 506 IPC sought anticipatory bail. The application was rejected by the court below on the ground that the applicant, being a child in conflict with law, is not entitled to anticipatory bail under the Juvenile Justice Act.
Finding of the Court:
The court found that the applicant, being a child in conflict with law, is not entitled to anticipatory bail under the Juvenile Justice Act and dismissed the anticipatory bail application.
Issues: The main issue was whether the applicant, as a child in conflict with law, is entitled to anticipatory bail under the Juvenile Justice Act.
Ratio Decidendi: The court held that anticipatory bail may not be granted under the Juvenile Justice Act and that the applicant, having avoided appearing before the Juvenile Justice Board, is not entitled to anticipatory bail.
Final Decision: The anticipatory bail application was dismissed.
JUDGMENT :
RAVINDRA MAITHANI, J.
1. Applicant Rashid Rao is facing trial in FIR No. 100 of 2020, under Sections 376, 323, 504, 506 IPC, registered at P.S. Patel Nagar, District Dehradun. He has sought anticipatory bail.
2. The anticipatory bail application of the applicant has been rejected by the Fast Track Court/Special Judge, POCSO/Additional Sessions Judge, Dehradun on 09.02.2022. The application has been rejected on the ground that since the applicant is a child in conflict with law (“CIL”) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the Act”) does not make any provision for anticipatory bail, the application cannot be allowed.
3. Learned counsel for the applicant would argue that the applicant has not been heard on merits. Bail includes anticipatory bail. Anticipatory bail can be granted by the Juvenile Justice Board (“the JJ Board”). The provisions of anticipatory bail are in favour of an accused apprehending arrest, which is beneficial to preserve the right to life and liberty and denial of it to a CIL is not the intent of the legislature. Filing of charge-sheet also does not bar entertaining an anticipatory bail application. Learned counsel would submit that a CIL should have more protection under the law, if not, equal to an accused, who is not governed by the Act. Therefore, it is argued that, the anticipatory bail application of the applicant should have been considered by the court below and the applicant is entitled for anticipatory bail.
4. On the other hand, learned State Counsel would submit that the Act is a beneficial Act for the interest of CIL. CIL may not be kept in police station or in jail. He is not given in the police custody. Safety of child is ensured by the JJ Board. In addition to it, learned State Counsel would also submit that, in fact, initially charge-sheet was submitted against the applicant in the court of Chief Judicial Magistrate, Dehradun, based on which proceedings of Criminal Case No. 2323 of 2020, State vs. Rashid, were instituted and cognizance taken on 17.07.2020. It is argued that subsequently on an application of the applicant on 29.08.2021, he was declared CIL and the record of the case was forwarded to the JJ Board. It is argued that thereafter the applicant is not appearing before the JJ Board. Non-bailable warrants have even been issued against him. Therefore, he may not be granted anticipatory bail on this ground also.
5. The Act has been enacted to make the law more child friendly. Instead of interpreting as to why the Act was made, what were its Reasons and Objects, it would be appropriate to reproduce the statement of Objects and Reasons of the Act. It is as hereunder:
1. Article 15 of the Constitution, inter-alia, confers upon the State powers to make special provision for children. Articles 39(3) and (f), 45 and 47 further makes the State responsible for ensuring that all needs of children are met and their basic human rights are protected.
2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate measures in case of a child alleged as, or accused of, violating any penal law, including (a) treatment of child in a manner consistent with the promotion of the child’s sense of dignity and worth (b) reinforcing the child’s respect for the human rights and fundamental freedoms of others (c) taking into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
3. The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000 to provide for the protection of children. The Act was amended twice in 2006 and 2011 to address gaps in its implementation and make the law more child-friendly. During the course of the implementation of the Act, several issues arose such as increasing incidents of abuse of children in institutions, inadequate f
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