DATE OF JUDGEMENT:
20 May, 2021
JUDGES:
Justice Sheel Nagu
SUBJECT
The following judgment deals with the question that whether a juvenile is eligible for the grant of an anticipatory bail.
AN OVERVIEW
- The present petition was filed in the High Court of Madhya Pradesh for the grant of anticipatory bail to a minor.
- The juvenile was apprehended in connection with an offense punishable u/S.306, 498-A, 34 of IPC
- It was held by the court that under the Juvenile Justice (Care and Protection of Children) Act, 2015 a juvenile is not subjected to "Arrest, the juvenile will not be sent to police lockup/jail but instead to Observation Home/Fit facility/One-stop Home, etc. Therefore the remedy of anticipatory bail u/Sec. 438 Cr.P.C. is not available to a juvenile.
IMPORTANT PROVISIONS
- Section 12 of The Juvenile Justice (Care and Protection of Children) Act, 2015-This section deals with the provisions relating tothe bail of a juvenile.
- Section 438 of The Code of Criminal Procedure, 1973-The provision of this section deals with the Direction for providing a grant of anticipatory bail to a person apprehending arrest.
- Section 306 of The Indian Penal Code,1860-This section deals with the provision relating to the abetment of suicide.
- Section 498A of The Indian Penal Code,1860-This section deals with the Husband or relative of the husband subjecting his wife to cruelty.
- Section 34 of The Indian Penal Code,1860-This section deals with the provision relating to Acts done by several persons in furtherance of common intention.
ISSUES
The issue raised before the court was whether the legislation while formulating 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?
ANALYSIS OF THE JUDGEMENT
- The Petitioner has filed this application in the Madhya Pradesh High Court under section-438 of Cr.P.C. for grant of anticipatory bail.
- The Petitioner was apprehended by police officers in Gwalior inconnection with an offence punishable under section-306, 498-A, 34 of IPC.
- The Petitioner who is seeking anticipatory bail herein claims herself to be a juvenile as per date of birth of 01.01.2004 as against the date of the incident being 09.03.2021.
- As regards prayer for anticipatory bail made by the petitioner, the court declined to enter into the merits of the case because of the recent decision rendered by a coordinate bench of the same court in Ankesh Gurjar & Ankit Gurjar Vs. State of Madhya Pradesh & Misc. where it was held that-
- Under Section 12 in The Juvenile Justice (Care and Protection of Children) Act, 2015 When any person accused of a bailable or non-bailable offense who is a juvenile, after being arrested or detained or being before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force should be released on bail with or without surety (or placed under the supervision of a Probation Officer or the care of any fit institution of fit person). Interpreting the said provision to include the benefit of anticipatory bail would lead to stretching the limits laid down by the legislature. Therefore, The Court cannot legislate, and therefore Sec.12 by implication excludes the benefit of anticipatory bail. It also stated that it is now a well settled principle of law that the Court cannot enlarge the scope of legislation or intention when the language of the statute is plain and unambiguous. Thus, by the very nature of amenities made available to a juvenile in various institutions where he/she is kept from the stage of apprehension/detention up to the conclusion of inquiry by the Board, it becomes evident that these institutions are similar if not identical to the atmosphere and facility a child enjoys in the parental home.
- The Court held that in consideration of the above discussion, it is crystal clear that the concept of sending arrested/detained juvenile to police lockup or jail is foreign to the Scheme of 2015 Act and the Rules framed therein.
- The Legislature while promulgating 2015 Act and the Rules framed therein has consciously not provided the benefit of anticipatory bail to a juvenile since juvenile is not subjected to "Arrest" as contemplated in Cr.P.C. Thus, when there is no arrest to be followed after custody in police lockup or jail, then there is no point in providing the relief of an anticipatory bail.
- In view of the evidence provided above, since juvenile will not be sent to police lockup/jail but instead to Observation Home/Fit facility/One-stop Home, etc. Thus, the remedy of anticipatory bail is not available to a juvenile.
- As such, this instant petition under section-438 Cr.P.C, being inconsequential and unnecessary is dismissed as not maintainable.
CONCLUSION
In this case, the High Court Observed that Section 12 of The Juvenile Justice (Care and Protection of Children) Act, 2015 is a complete Code in itself and upon Interpreting its provision to include the benefit of anticipatory bail would be stretching the limits laid down by the legislature. Therefore, the Court held that Sec.12 by implication excludes the benefit of anticipatory bail. The court held that the legislature cannot be imputed to provide for a benefit which it did not intend to provide unless the provision textually reveals otherwise.
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