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Wednesday, July 28, 2021

Anticipatory bail petition not maintainable under Section 438 CrPC in case of a juvenile: HC

The bench of Justice Rajesh Bhardwaj, while holding that the petition for anticipatory bail under Section 438 CrPC on behalf of the juvenile is not maintainable, directed the juvenile to seek remedy in accordance with law.

Written by Jagpreet Singh Sandhu | Chandigarh |
July 8, 2021 6:27:48 am
Punjab and Haryana High Court. (File Photo)

THE PUNJAB and Haryana High Court, while disposing of a juvenile’s anticipatory plea, has held that the Juvenile Justice Act, 2015, mandates the provision of granting bail in a bailable or non-bailable offence notwithstanding anything contained in CrPC (Code of Criminal Procedure).

The bench of Justice Rajesh Bhardwaj, while holding that the petition for anticipatory bail under Section 438 CrPC on behalf of the juvenile is not maintainable, directed the juvenile to seek remedy in accordance with law.

The petitioner juvenile had moved HC seeking anticipatory bail in case an FIR is registered under Section 8 of Protection of Children from Sexual Offences (POCSO) Act, 2012, in Mohindergarh district of Haryana. The counsel for the juvenile contended he was falsely implicated.

The bench, observing that the issue of maintainability of the petition on behalf of a juvenile under Section 438 of CrPC is of prime importance, said, “For dealing with the juvenile, the relevant Act is The Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ‘the Act’), which is a complete code in itself and has specific provision for dealing with the child in conflict with law. Section 10 deals with apprehension of the child alleged to be in conflict with law and Section 12 pertains to bail to a person who is apparently a child alleged to be in conflict with law.”

Justice Bhardwaj said, “The legislature mandates that as soon as a child is apprehended by police, he shall be produced before the Board… provisions of Section 12 would show that when any child is brought before a Board, such person notwithstanding anything contained in CrPC, or in any other law for the time being in force, be released on bail with or without surety. Proviso to this Section 12 further mandates that if it appears to the Board that there are reasonable grounds for believing that the release of the child, it is likely to bring that person in association with any known criminal or expose the said person to moral, physical or psychological danger or the person’s release would defeat the ends of justice then the Board shall record the reasons for denying the bail.”

He added, “Provisions of Section 438 CrPC are enumerated for granting the bail to the person who has apprehension of arrest. A reading of provisions of Section 438 CrPC vis-a-vis of relevant provisions of the Act would show that a juvenile cannot be arrested and thus, there is no question of apprehension of his arrest…”

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