The Juvenile Justice Act, 2015, consciously omitted to provide anticipatory bail for juveniles, considering the absence of the concept of 'custody' and the rehabilitatory, reformatory, and beneficial characteristics of the Act.

ORDER :

Sheel Nagu, J.

1. This Bench has been constituted to resolve the controversy referred by Hon. the Chief Justice stemming from difference of opinions between two Single Benches of this Court.

2. Noticing the cleavage of opinions between two single benches manifested by the order dated 22.10.2020 in Misc. Criminal Case 41359-2020 [CCL (Child In Conflict with Law) v. State of M.P.] and order dated 4.11.2020 in Criminal Revision 2112 of 2020 [Ankesh Gurjar @ Ankit Gurjar v. State of M.P.] the following questions have been framed in both cases :-

Misc. Criminal Case 41359/2020

[CCL (Child In Conflict with Law) v. STATE OF M.P.]

Order dated 22.12.2020

Accordingly, the Registry is directed to forward the case to the Principal Seat and for the sake of convenience, the following proposed questions are framed:

(i) Whether the benefit of anticipatory bail u/s. 438 Cr.P.C. is available for a juvenile to be availed while invoking section 12 of Juvenile Justice Act?

(ii) Whether denial of remedy of anticipatory bail u/s. 438 to a juvenile would be abhorrent to the beneficial and rehabilitatory object behind the Juvenile Justice Act?

(iii) Assuming that remedy of anticipatory bail is not available to a juvenile, can Article 226 of Constitution or section 482 of Cr.P.C. be invoked seeking anticipatory bail to prevent the juvenile from being remedy-less?

(iv) Which among the two conflicting views of coordinate Benches (both SB) i.e. in Kamlesh Gurjar (supra), and Miss A (Supra) lay down the correct law?

Criminal Revision No. 2112/2020

[Ankesh Gurjar @ Ankit Gurjar v. State of M.P.]

Order dated 4.11.2020

As the question of maintainability of application for anticipatory bail is already under reference in view of the difference of opinion, therefore, this Court is of the view that following additional questions also require adjudication:

1. When there is no concept of custody, as a child in conflict with law is neither arrested nor sent to jail, then whether an application for grant of anticipatory bail would be maintainable?

2. In absence of provision for grant of anticipatory bail, whether the Court can legislate by providing for anticipatory bail?

3. Whether the Legislature has intentionally omitted the provision of section 438 of Cr.P.C. in view of section 12(3), and 24(1) of Act, 2015?

4. Whether a social verification report can be submitted by Probation Officer, even in absence of detention/apprehension of a child in conflict with law?

5. Whether section 12(1) of Act, 2015 would be a guiding factor for deciding the application for grant of anticipatory bail?

6. Whether the Juvenile Justice Board/Children's Court/High Court, can consider the nature of allegations to find out as to whether any prima facie case under Act, 1989 or any other statute like NDPS Act is made out or not?

3. From perusal of the controversy delineated in the aforesaid questions framed, this Court would like to dwell upon the cardinal and seminal issue as detailed below since the same shall provide the necessary platform to answer the aforesaid questions:-

QUESTION FRAMED BY THIS COURT

Whether the legislature while promulgating Juvenile Justice (Care and Protection of Children) Act, 2015, in particular Sec. 12, consciously omitted to make available benefit of anticipatory bail to a juvenile or not?.

3.1. For answering this question, it is necessary to track the history behind the promulgation of 2015 Act:-

3.2. The Framers of our Constitution were conscious of the basic human rights of children which is evident from bare reading of Articles 15(3), 39(e) & (f), 45 and 47 of the Constitution, which are reproduced below for ready reference and convenience:-

"Art. 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-

(1) xxxx

(2) xxxx

(3) Nothing in this article shall prevent the State from making any special provision for women and children. Art.