Child In Conflict With Law Under Juvenile Justice Act Can File Anticipatory Bail Plea Under Section 438 CrPC: Bombay High Court

• The Court ruled that it would be against Article 14 of the Constitution to prevent a minor in trouble with the law from exercising their right to request anticipatory bail. 
• The Bombay High Court ruled on Friday that a juvenile who is in trouble with the law may file an anticipatory bail application under Section 438 of the Code of Criminal Procedure in the absence of provisions governing the grant of anticipatory bail under the Juvenile Justice (Care and Protection of Children) Act [JJ Act]. 
• A bench of Justices SV Kotwal and BP Deshpande noted that it would be against Article 14 of the Indian Constitution to prevent a youngster in trouble with the law from using their right to request anticipatory bail.
• After Justice Vibha Kankanwadi dissented from the stance held by other single justices of the court and refused anticipatory bail to two siblings, ages 16 and 14, this matter was referred to a division bench.
• The court appointed Senior Advocate to serve as an amicus curiae. He agreed that a child in conflict with the law's application under Section 438 could not be upheld.
• He cited numerous portions of the JJ Act and claimed that sections 10 and 12 of the JJ Act were a full code in themselves, negating the need for a kid in dispute with the law to have access to Section 438 of the CrPC. He emphasised that the JJ Act did not contain an explicit provision for anticipatory bail.
• On behalf of the applicants, attorney Suvidh Kulkarni called the court's attention to the Indian Penal Code's (IPC) definition of the term "person" and claimed that the term "person" does not include a "child" as that term is defined by the JJ Act.
• Then he emphasised that because Section 438 of the CrPC utilises the word "any person," it follows that everybody, including a child as defined by the JJ Act, is subject to its provisions. 
• The Court noted that the CrPC interchanges the terms "arrest" and "apprehension." It also supported Kulkarni's argument that children are included in the definition of "person" as it appears in the IPC.
• The Court emphasised that Section 438 of the CrPC can only be overruled if the JJ Act includes a procedure similar to Section 438.
• It was decided that Section 438's provisions might be used in situations where children were in legal trouble because the JJ Act does not have any measures that could apply in that situation.
• It further noted that it would be a miscarriage of justice to take the child away from parental protection and the child's customary surroundings in situations where accusations were untrue or made with a covert motive.
• Based on these conversations, the court provided the following response to the reference:

A request may be made in accordance with Section 438 of the Code of Criminal Procedure, 1973, by a "child" and a "child in conflict with the law" as those terms are defined under the Juvenile Justice (Care and Protection of Children) Act, 2015.