Naman Pratap Singh and Hammad Siddiqui
Recently, the Supreme Court entertained a petition where law regarding the availability of anticipatory bail under Section 438 Cr.P.C.[1] for a juvenile was debated.[2] A bench of Justice Hrishikesh Roy and Justice Sanjay Karol issued a notice to the State on 9th October 2023, in response to an appeal filed against a Rajasthan High Court case where the court had ordered declining to hear a juvenile petitioner's pre-arrest bail plea. The Court noted the petitioner's claim that there are now conflicting judgements on this issue from multiple High Courts. The petitioner submitted before the bench that five High Courts have ruled that Section 438 of the Cr.P.C. can be used in the instance of a child in violation of the law, while four other High Courts have ruled otherwise. Furthermore, the petitioner called the Court's attention to Section 17 of the Juvenile Justice Act[3], which provides that no order under Chapter VII of the Cr.P.C. can be made against a juvenile. The petitioner argued that a juvenile in conflict with law must have the option of seeking pre-arrest bail rather than being referred entirely to the Juvenile Justice Board’s disposal, in case of contemplation of action taken under Section 10 of the JJ Act.
What is the issue?
The issues primarily emerge from the tussle of application of general law i.e. Cr.P.C. (now the BNSS) over special law i.e. JJ Act. The argument for the superior function of the special law asserts that the JJ Act is a special and comprehensive law for children in conflict with law and provides for a separate procedure and authority for dealing with such children. The issue, obscured with conflicting judgments of High Courts, is whether an application for anticipatory bail by a juvenile is maintainable. An anticipatory bail under S. 438 Cr.P.C. is a legal provision allowing individuals charged with a non-bailable offence, to seek bail in anticipation of being arrested or detained by authorities.[4] Section 12(1)[5] of the JJ Act provides a non-obstante clause that overrides any provision of the Cr.P.C. regarding bail, maintaining that when a juvenile is accused of a bailable or non-bailable offence, is arrested, detained or brought before a Juvenile Justice Board, should only be released on bail where there is no reason which would wrongly impact the accused and therefore, defeat the ends of justice. Further, S. 12[6] provisions for a regular bail but has no mention of a pre-arrest remedy for a juvenile.
The issue becomes more complicated when other provisions of these two statutes are considered. The Hon'ble Supreme Court has previously noted, citing Section 4(2) Cr.P.C.[7], that unless a statute other than the Cr.P.C. prescribes an offence while simultaneously defining the procedure or location of investigating, questioning, trying, or otherwise dealing with such offences, Cr.P.C. shall apply in respect of such offences.[8] While the JJ Act provides the way of inquiry and investigation, it has no explicit provision on anticipatory bail. This only adds to the uncertainty.
The conflicting judgments
In the case of Sudhir Sharma v. State of Chhattisgarh[9], the Chhattisgarh High Court made an observation that no clause in the Act of 2015 restricts the wide applicability of the Cr.P.C though the JJ Act 2015 has granted some clauses overriding effect by establishing a non-obstante clause for specific topics. Whenever the legislature wished to give precedence to the legislative scheme of JJ Act over the general application rules included in the Cr.P.C., it was made clear in those relevant clauses. Hence, no far-reaching application of Section 12’s non-obstante clause could be made. Likewise, the Madras High Court[10] referring to S. 4(2) of CrPC, determined that the request for anticipatory bail under Section 438 for a juvenile in conflict with the law is maintainable due to the lack of any particular provisions in the JJ Act addressing this matter. This decision was in contravention to an earlier Kerala High Court decision which had decided otherwise extrapolating the aims and purpose as broadened for the protection of juvenile with no scope of an actual arrest.[11] The Bombay High Court held that when a Child in Conflict with Law is apprehended, his/her liberty is curtailed, Section 438 provides an important remedy to such a child and further, no differentiation has been made on who can avail this remedy.[12] A juvenile’s rights under Section 438 CrPC should be unaffected because there is no such contradiction between that section and Sections 10 or 12 of the JJ Act.[13] In an another decision of the Punjab and Haryana High Court held individual liberty and right to equality under Article 14 of the constitution as necessary decisive consideration while deciding on such matters. Further holding that mere non-availability of provision shouldn’t make the plea infructuous.[14]
However, the Uttarakhand HC delved intensively into the application of Section 12 and dismissed the plea on the ground that such bail could be only granted under the JJ Act. Since the ingredients of Section 12 aren’t satisfied, the same could not be granted.[15] The Allahabad High court has made an intriguing turn in its assessments. It has maintained in one instance that interpretation of law cannot be done in a manner to disturb the broader aim of the enactment.[16] But in May 2023, another case of Allahabad High Court[17] held that since an incarcerated juvenile cannot be left without any recourse, one can explore the remedy of anticipatory bail as provisioned in Section 438 Cr.P.C. A juvenile’s anticipatory bail application should be made admissible in the court of law, with the court having total authority to adjudicate on such matters and without any time-based restrictions.
A straight-jacketed application of law hasn’t been formed and hence the present notice had been issued by the Supreme Court of India. The petitioner argued highlighting the inconsistency between the Hindi and English versions of Section 10[18] of the JJ Act wherein the words “giraftaar” and “apprehend” have been used in both versions respectively for the same purpose.[19] The High Courts have prowled in various directions and adopted different reasons to adjudicate such matters. The various rulings emerged from the very basic contention encompassed in a phrase, which law is to be followed?
Conclusion
The High Courts have adopted a two-fold reasoning for dismissing a juvenile’s application for anticipatory bail. Their rationale is that the JJ Act is a special law and overrides the provisions of any other law. They base their argument on Sections 1(4)[20] and 12(1) of the JJ Act. The former is a general provision barring the application of any other law in matters concerning children in conflict with law. The latter is a non-obstante clause specifically giving prevailing power to the JJ Act over Cr.P.C. in matters of apprehension of a child in conflict with law. High Courts have interpreted these two provisions to exclude the applicability of Cr.P.C. Antithesis presented against the non-obstante nature of the S. 12 JJ Act is that the section mentions nothing concerning anticipatory bail. It is well-settled that when there is no provision for an issue in special law, the general law will apply to that issue. Therefore, even for the non-obstante nature of S. 12, arguments based on consideration of this section are said to be ultimately irrelevant and infructuous. Courts, which have denied the application, have failed to consider that S. 12 does not talk about pre-arrest bail as a provision itself. The presence of the non-obstante clause in Section 12 is not in an indicative or dictatory role specifying a child's entitlement to pursue anticipatory bail[21] and in no authority which can influence the judiciary’s decision on the same. The Madras High Court[22] has rightly invoked section 4(2) of Cr.P.C. to allow anticipatory bail under Section 438 to a juvenile. There is no provision in the JJ Act for pre-arrest bail. In such a case, anticipatory bail of a juvenile should be governed by Section 4(2) Cr.P.C.
Based on various assessments as discussed, it can be conclusively asserted that a juvenile’s anticipatory bail application should be made admissible in the court of law, with the court having total authority to adjudicate on such matter and without any time-based restrictions as laid down in the Mohammad Zaid v. State of U.P.[23]. Courts must consider the constitutional rights and liberties of a juvenile as well as the objective and purpose of the JJ Act. Denying anticipatory bail to a juvenile would not only violate his fundamental right to liberty but also militate against the purpose of the JJ Act. The Supreme Court bench headed by the then Chief Justice Y. V. Chandrachud has opined[24] that the High Courts will have to balance the interests of both, maintaining law and order and protecting the individual freedom in the society while granting bail under S. 438 of Cr.P.C. Hereafter, it is apparent that it has been left to the courts to bring about a harmonious construction of the two statutes i.e., JJ Act and the Cr.P.C. so that the two may work and stand together. Such interpretations need to be made to prevent miscarriage of justice and to prevent abuse of process of law by the authorities making arbitrary and indiscriminate arrests especially in cases of juveniles.
(The authors are students of Faculty of Law, Jamia Millia Islamia, New Delhi.)
[1] The Code of Criminal Procedure, 1973, §438.
[2] Yuvraj v. The State of Rajasthan, Special Leave Petition (Criminal) No. 12659 of 2023 (Supreme Court).
[3] The Juvenile Justice (Care and Protection of Children) Act, 2015, §17.
[4] The Code of Criminal Procedure, 1973, §438.
[5] The Juvenile Justice (Care and Protection of Children) Act, 2015, §12(1).
[6] The Juvenile Justice (Care and Protection of Children) Act, 2015, §12.
[7] The Code of Criminal Procedure, 1973, §4(2).
[8] Vishwa Mitter v. O.P. Poddar (1983) 4 SCC 701, at 704.
[9] Sudhir Sharma v. State of Chhattisgarh, (2017) 1 CGLJ 528, at 534-35.
[10] X (Prashob) v. State of Kerala, 2018 SCC OnLine Ker 23373, ¶20,25.
[11] K. Vignesh v. State 2017 SCC OnLine Mad 28442, ¶.
[12] Raman v. State of Maharashtra, 2022 SCC OnLine Bom 1470, ¶29.
[13] Mohammad Zaid v State of U.P, 2023 SCC OnLine All 230, ¶31.
[14] Amandeep Singh through his father v. State of Punjab, 2020 SCC OnLine P&H 2308, ¶7.
[15] Rashid Rao v. State of Uttarakhand 2022 SCC OnLine Utt 481, ¶9-11.
[16] Minor 'X' Through His Guardian/Father, District Prayagraj v. State of UP & Anr., Criminal Misc Anticipatory Bail Application No. 11542 of 2022 (Allahabad H.C.) (Unreported) ¶17.
[17] Mohammad Zaid v State of U.P, 2023 SCC OnLine All 230, ¶15.
[18] The Juvenile Justice (Care and Protection of Children) Act, 2015, §10.
[19] Yuvraj v. The State of Rajasthan, Office Report dated 10th January 2024, S.L.P.(Criminal) No. 12659 of 2023 (Supreme Court).
[20] The Juvenile Justice (Care and Protection of Children) Act, 2015, §1(4).
[21] Shahaab Ali (Minor) v. State of UP, 2020 SCC OnLine All 45, ¶33.
[22] Id., 10.
[23] Id., 16.
[24] Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, ¶43.