IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 551 of 2022 An application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 read with Section 102 of Juvenile Justice Act, 2015 challenging the order dated 27.10.2022 passed in Bail Application No. 934 of 2022 by Learned District and Sessions Judge, Bhadrak and to enlarge the petitioners on anticipatory bail.

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AFR Subham Jena & another ...… Petitioners -Versus-

State of Odisha ...…. Opp. Party Advocate(s) appeared in this case:-

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For Petitioners : Mr. Dharanidhar Nayak, Sr. Advocate (Amicus Curiae)

M/s. Pratik Dash & S. Anuvav, Advocates For Opp. Party : Mr. Priyabrata Tripathy, Addl. Standing Counsel.

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CORAM:

JUSTICE SASHIKANTA MISHRA

JUDGMENT

5TH JANUARY, 2023 SASHIKANTA MISHRA, J.

The issue that falls for consideration in the present revision is :-

“Can a Child in Conflict with Law (CCL) file an application under Section 438 of Cr.P.C. for grant of anticipatory bail.”

2. The facts of the case are that one Ghanashyam Senapati, working as security guard of the Railway track in Dhamra port, lodged FIR before the Bansada Police Station in the district of Bhadrak alleging that the petitioners were found stealing keys from the railway tracks and fled away from the spot being detected thus. Basing on such FIR, Bansada P.S. Case No. 311 of 2022 was registered under Sections 379/34 of IPC followed by investigation.

3. The petitioners being CCLs, filed an application in the court of Sessions Judge, Bhadrak under Section 438 of Cr.P.C. for grant of anticipatory bail. Learned court below entertained doubts as regards maintainability of such application whereupon the prosecution as well as the petitioners put forth their respective arguments supported by judgments of the Supreme Court and different High Courts. Learned court below noted that there are conflicting views of different High Courts in this regard and held that since a juvenile cannot be arrested, the provision under Section 438 of Cr.P.C. would not apply to him since there cannot be apprehension of arrest in his case. As such, the bail application was rejected.

4. Having regard to the importance of the question of law involved, this Court requested Mr. Dharanidhar Nayak, learned Senior Counsel to assist the Court as amicus curiae.

5. Heard Mr. Dhranidhar Nayak, learned Senior Counsel and amicus curiae, Mr. Pratik Nayak, learned Counsel for the petitioner and Mr. P. Tripathy, learned Addl. Standing Counsel.

6. Learned Senior Counsel Mr. Nayak submits that Section 438 of Cr.P.C. applies to a ‘person’ who is apprehending arrest. The word ‘person’ is not defined in Cr.P.C. but Section 2(y) thereof provides that words and expressions used therein and not defined but defined in the Indian Penal Code shall be assigned with the meaning assigned in IPC. Section 11 of IPC defines “Person” as – the word ‘person’ includes any Company or Association or body of persons, whether incorporated or not. Mr. Nayak therefore, argues that the word ‘person’ being an inclusive one, use of the same in Section 438 of Cr.P.C. would take in its sweep even a child in conflict with law. Mr. Nayak further argues that Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short the “JJ Act”) refers to ‘apprehension by the police’, which is the same as ‘arrest’. He also argues that Section 12 of the said Act grants the remedy of bail to a CCL if he is apprehended. Since there is no distinction between apprehension and arrest and bail is also permissible to be granted after apprehension, there is no reason why the benefit of anticipatory bail shall be denied to a CCL apprehending such apprehension, which is nothing but arrest.

Summing up his arguments Mr. Nayak submits that even otherwise, unlike other statutes like, SC & ST (POA) Act, the JJ Act does not specifically exclude the power of the court/Board to