The Use Of Anticipatory Bail Under Section 438 Crpc To Children In Conflict With The Law Under JJ Act Is Not Expressly Barred According To Gujarat HC

What Is The Case In Question

• The judgment was passed by The High Court of Gujarat in the case of KureshiIrfan Hasambhai v. State of Gujarat [R/Criminal Misc. Application No. 6978 of 2021] by a Single Bench consisting of Hon’ble Justice A.Y. Kogje.
• The Court had to decide whether a child can continue an application for anticipatory bail under Section 438 of the Code of Criminal Procedure in violation of the law, especially in light of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

What Are The Counsels’ (Of Applicant) Opinion

• Learned Counsel for the applicant argued that the applicant is not a party to the crime, and thus the complainant has not named him as a party to the crime. However, apprehension of arrest has arisen due to a previous incident involving the accused and a pet dog, for which the accused and other co-accused named in the FIR are likely to name the present applicant as a party to the crime.
• The language of Section 438 of the Code, which must be read in conjunction with Sections 10 and 12 of the Act of 2015, was stated. Furthermore, it was argued that in order to maintain an application under Section 438 of the Code, there must be an apprehension of a person's arrest, whereas Section 10 of the Act, 2015 provides that a child alleged to be in conflict with the law shall not be placed in a police lockup or lodged in jail, and that there is a complete bar for placing a child in conflict with the law in a police lockup or lodged in jail.

What Did The Court Say

• Any kid who is in violation of the law must follow the procedure outlined in Section 12 of the Act, 2015, and so, even if the application under Section 438 of the Code is denied in any way, the protection outlined in Section 12 of the Act, 2015 will always be available.
• There is no express bar to Section 438 of the Code being applied to children in conflict with the law covered by the Act, 2015, and in the absence of such an express bar, there is no reason to infer such a bar, particularly in the facts of the present case where the juvenile applicant is not even named as an accused and has raised an apprehension of being impleaded.

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