The main legal point established in the judgment is the maintainability of anticipatory bail under section 438 of the Code for a juvenile, interpreting the provisions of the Act of 2015 and emphasizing the importance of personal liberty and the legislative intent to handle juveniles with care.

ORDER :

This is first bail application under section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) at the instance of a juvenile (aged 15 years 11 months 23 days at the time of commission of offence) for the alleged offence under sections 498-A, 376, 326-A, 506(B) and 34 of Indian Penal Code registered at Crime No. 264/2018 at Police Station Kumbhraj District Guna.

2. At the outset, learned counsel for the respondent/State raised the objection regarding maintainability of application for anticipatory bail under section 438 of the Code at the instance of a Juvenile, therefore, before adverting to the merits of the case, question of maintainability of application at the instance of juvenile under section 438 of the Code is decided.

3. As per the case of prosecution, prosecutrix is sister-in-law (Bhabhi) of present applicant because she is married to her brother Arbaz Khan. After marriage of the prosecutrix on 1-11-2017, when she and her parents did not satiate the dowry demand of family members of in-laws, then she was subjected to physical and mental abuse. On 22-5-2018 when she was sleeping, her brother-in- law Shahbaz Khan (Devar) knocked the door and after entering the room, raped her. Immediately thereafter, present applicant came to her and threatened her for life if she discloses this incident to anybody. Acid was also thrown over her. Therefore, report was lodged on which, FIR was registered, case was taken into investigation and application under section 438 of the Code was preferred before the Sessions Court. Same was rejected. Therefore, this application has been preferred.

4. It is submitted by learned counsel for the applicant that the application under section 438 of the Code is maintainable and no bar is being created by section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as ‘the Act of 2015’). He referred section 12 of the Act of 2015 to take argument further by making submission that although section 12 contemplates grant of bail when juvenile (Child In Conflict with Law) is arrested or detained by the police or appears or brought before Juvenile Justice Board, but from perusal of section 12 of the Act of 2015, it cannot be gathered that anticipatory bail under section 438 of the Code is barred in specific terms. Thus, section 12 of the Act of 2015 nowhere bars the anticipatory bail. While referring sections 4 and 5 of the Code, it is further submitted that the Act of 2015 does not regulate procedure in any way where remedy of section 438 of the Code is altogether wiped out in respect of Juvenile or Child In Conflict with Law (hereinafter referred as ‘CICL’). He relied upon the judgment rendered by the High Court of Kerala at Ernakulam in the matter of Mr. X s/o Baby V. M. vs. State of Kerala passed on 5-6-2018 in Bail Application No. 3320 of 2018. According to him, the said judgment has considered the judgment of Division Bench of Chhattisgarh High Court in the case of Sudhir Sharma vs. State of Chhattisgarh passed on 3-3-2017 in MCRCA No. 549 of 2016 wherein application under section 438 of the Code was found to be maintainable in respect of juvenile.

5. On the basis of judgments referred above, learned counsel for the applicant submits that the application under section 438 of the Code is maintainable. He argued on merits also while making submission that applicant is juvenile and she has been falsely implicated in the case because in a matter like offence under section 498-A of Indian Penal Code it is an usual practice to rope in all the members of the family by levelling false and improper allegations to build pressure over the family. In such circumstances, he prayed for anticipatory bail under section 438 of the Code.

6. Learned counsel for the respondent/State opposed the prayer made by the applicant and submitted that the application under section 438 of the Code is not maintainable because section 12 of the Act of 2015