SHAHAAB ALI Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard learned counsel for the applicants, Sri Vikas Sahai learned A.G.A. for the State and perused the record.

(2.) The applicants who are minors have petitioned this Court through their natural guardian seeking anticipatory bail in Case Crime No. 305 of 2019 under Sections 420, 467, 468, 471, 120B, 504 and 506 IPC, Police Station Tanda, District Rampur.

(3.) The principal question which has been raised is whether a petition under Section 438 of the Criminal Procedure Code at the behest of a child in conflict with law would be maintainable. According to Sri Vikas Sahai, the learned A.G.A., the application under Section 438 of the Criminal Procedure Code at the behest of a minor is not maintainable since the apprehension of arrest is misplaced. According to the learned A.G.A. the Juvenile Justice (Care and Protection of Children) Act 20151 and more particularly Sections 10 and 12 thereof put in place a detailed procedure to deal with the investigation and trial of cognizable offences that may be committed by minors. It was submitted that in terms of Section 10 of the 2015 Act, a child cannot be arrested and since he is only apprehended and placed in the charge of the Special Juvenile Police Unit2 or the designated Child Welfare Police Officer3 for production before the concerned Juvenile Justice Board4 within 24 hours of such apprehension, the jurisdiction of the Court under Section 438 of the Criminal Procedure Code is not liable to be invoked. The Court notes that different High Courts of the country have taken a conflicting view on the maintainability of a petition for anticipatory bail at the behest of a minor. There is however no authoritative pronouncement of this Court on the question that is raised. In view thereof and since the issue is likely to arise in future also, it would be appropriate to clarify the legal position. The position with respect to the maintainability of a petition in light of the inherent attributes of the remedy provided by Section 438 would have to be decided bearing in mind the twin scenarios in which a petition for anticipatory bail by a minor may be presented before this Court. The first and obvious situation would be where the minor approaches this Court after the registration of a first information report alleging commission of a cognizable offence while the second could be where a minor apprehends arrest and detention prior to the registration of a first information report. The Court proposes to deal with and answer the question of maintainability with reference to the two foreseeable situations noted above.