The Calcutta High Court on Thursday referred to a larger bench the issue regarding maintainability of an application by a juvenile for anticipatory bail under Section 438 of the Criminal Procedure Code [Suhana Khatun v. State of West Bengal].
In a nutshell
– The High Court examined: Is an application by a juvenile for anticipatory bail under Section 438 of the Cr.PC maintainable?
– A Division Bench of Justices Arijit Banerjee and Bivas Pattanayak answered in the negative.
– Considering the divergence of opinion between this Bench and an earlier Bench which heard the same issue, the matter was referred to the Chief Justice for constitution of a larger bench to settle the issue.
– Petitioners argued that an interpretation best benefiting the child must be adopted.
– State opposed on grounds of mandatory procedure under Juvenile Justice Act being disrupted.
To elaborate
The Court was hearing an application for anticipatory bail at the instance of four minors accused of wrongful restraint, causing grievous hurt, attempt to murder and murder.
On a detailed examination of the issue, it was found that there were safeguards provided to a child in conflict with the law should they be apprehended by the police under the Juvenile Justice (JJ) Act. Thus, an application for anticipatory bail was not maintainable, it was held,
“In the 2015 enactment the legislature did not, consciously, empower the police to arrest a child in conflict with law. Accordingly, we are of the considered view that an application for anticipatory bail under section 438 of the Criminal Procedure Code at the instance of a child in conflict with law is not maintainable,” the High Court ruled.
The petitioners argued that the JJ Act was a beneficial legislation and could not be construed to exclude another beneficial provision that was a component of Article 21 of the Constitution. It was impressed upon the Court that when two views were possible, the one that would favour the child in conflict with law should be adopted.
It was further stated that no express exclusion of Section 438 was prescribed in the JJ Act and thus, the same could not be implanted by way of judicial interpretation.
On the other hand, the State submitted that such an application was not maintainable since the apprehension of arrest was misplaced and the provisions of pre-arrest bail would disrupt the mandatory statutory procedure laid down in the JJ Act and Model Rules.
On a detailed examination of the issue, it was found that there were safeguards provided to a child in conflict with the law should they be apprehended by the police under the Juvenile Justice (JJ) Act. Thus, an application for anticipatory bail was not maintainable, it was held,
“In the 2015 enactment the legislature did not, consciously, empower the police to arrest a child in conflict with law. Accordingly, we are of the considered view that an application for anticipatory bail under section 438 of the Criminal Procedure Code at the instance of a child in conflict with law is not maintainable,” the High Court ruled.
However, on examining precedents by coordinate benches of the Calcutta High Court as well as other High Courts, it was observed that there was a difference of opinion on the issue.
In Saud (minor) represented by his father Morful Sk, the Calcutta High Court had granted anticipatory bail to a minor petitioner. However, no issue regarding maintainability of an application for anticipatory bail at the instance of a minor was considered.
On the other hand, three decisions were discussed where coordinate benches of the Court held that an application for anticipatory bail at the instance of a child in conflict with the law was not maintainable.
The Bench concurred with one such order in the case of Krishna Garai & v. The State of West Bengal where it was held that the Act of 2000 was a special Act meant especially for juveniles and would prevail over the CrPC.
With this observation and a reference to a larger Bench, the plea was disposed of.
Advocates Ayan Bhattacharyya and B Banerjee appeared for the petitioners. The State was represented by advocates Swapan Banerjee and Suman De.
Read Order here:
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