SUHANA KHATUN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This application for anticipatory bail under Sec. 438 of the Code of Criminal Procedure, 1973 filed at the instance of four minor/juvenile persons in connection with the Raghunathganj Police Station Case No. 12 of 2021 dtd. 7/1/2021 under Ss. 341, 325, 326, 307, 302, 34 of the Indian Penal Code was assigned before the Bench by the Hon'ble Chief Justice with the following observations -

(2.) Therefore, the question of law to be answered by this Bench is whether an application for anticipatory bail under Sec. 438 of the Code of Criminal Procedure, 1973 is maintainable when filed by a juvenile or a child in conflict with law.

(3.) Mr. Bhattacharjee, learned senior counsel appearing on behalf of the petitioners has submitted and has relied on the written notes as follows. Juvenile Justice (Care and Protection of Children) Act, 2015 ('Act of 2015') was enacted by the Legislature in furtherance to the obligations and duties imposed under the provisions of Articles 15(3), 39(e)/(f), 45 and 47 of the Constitution on India. The Act of 2015 was enacted for the protection of children and to ensure that the basic human rights of children are fully protected. The Act of 2015 conceptualizes an inquiry by the Juvenile Justice Board (Board) constituted under Sec. 4 of the Act of 2015 in respect of a child in conflict with law. Any person who has not completed 18 years of age and is apprehended for committing an offence will be treated as a child during the process of inquiry as envisaged under Sec. 6(1) of the Act of 2015. According to Sec. 10 of the Act of 2015, as soon as a child alleged to be in conflict in law is "apprehended" by police, such child shall be placed under the charge of the Special Juvenile Police Unit or the Designated Child Welfare Police Officer, who shall produce the child before the Board. According to the proviso appended to Sec. 10, such a child shall not be placed in a police lock up or lodged in a jail under any circumstances. According to Sec. 12 of the Act of 2015, when such a child is apprehended or detained by the police or appears or is brought before a Board, such child would ordinarily be released on bail. However, bail will not be granted in cases where there are reasonable apprehensions that the release would expose the child to the danger of getting associated with any criminal etc. In such cases, the child shall be lodged in an observation home (Sec. 2(40)) in terms of Sec. 12(2) of the Act of 2015. According to Sec. 14 of the Act, when a 'child in conflict with law' is produced before the Board, the same is obligated to hold an inquiry as per Chapter XXI of the Code of Criminal Procedure, 1973 ('CrPC') in case of petty offences (vide Sec. 14(5)(d)); or an inquiry as per Chapter XX of CrPC in case of serious offence (vide Sec. 14(5)(e)), or an inquiry as per Chapter XX of CrPC in case of heinous offence for a child below the age of sixteen years as on the date of commission of the offence (vide Sec. 14(5)(f)(i)). At the conclusion of such inquiry, the Board may pass either an order of exoneration under Sec. 17 or an order of (victual) conviction under Sec. 18 of the Act of 2015. In case an order is passed under Sec. 18 of the Act, the Board is required to follow the provisions mentioned under Sec. 18(1) and/or 18(2) of the Act of 2015. However, in case of 'a child in conflict with law' above the age of sixteen years as on the date of commission of the offence being an accused of a 'heinous offence', a preliminary assessment inquiry has to be conducted in terms of Sec. 15 of the Act of 2015 (vide Sec. 14(3)/14(5)(f)(ii)). From the aforesaid provisions of law, it would therefore, be evident that the provisions of the Act of 2015 don't get activated until a child is apprehended or detained by police or appears or is brought before a Board. The mechanism of the Act of 2015 fall in place once the stage of appearance is reached but not before. In this regard, it is noteworthy that Sec. 10 of the Act of 2015 provides for the mechanism of apprehension of a child/juvenile. The non-obstante clause as it occurs in Sec. 12 of the Act of 2015 carves out an exception from the general provisions of bails and bonds as enumerated under the provision of Cr PC. The said non-obstante clause, however, does not abrogate the provision of anticipatory bail/pre-arrest bail as envisaged under Sec. 438 of Cr PC which remains untrammeled by such non-obstante clause in view of the provisions under Ss. 4 & 5 of Cr P C. According to Sec. 4(2) Cr P C, the special provision prescribed is for grant of bail and that would prevail upon the provisions of Cr PC. However, it cannot be said that the rest of the provisions of CrPC are also excluded. [vide Moti Lal vs ?'?, (2002) 4 SCC 713 [Para 14). Sec. 438 CrPC vis a vis liberty: The provision under Sec. 438 of CrPC creates a different niche, and therefore, the same cannot be construed to be excluded by way of necessary implication. In this regard, it is most pertinent to mention that the provision under Sec. 438 of Cr PC traces its origin back in the ark of fundamental liberty as enshrined under Article 21 of the Constitution of India. Every pre-arrest bail petition involves a lurking question as to how much personal liberty of an individual is required to be curtailed. In other words, every pre-arrest bail petition seeks reinforcement and reinstatement of the personal liberty of an individual which is enjoyed by such individual as a natural right by virtue of his birth and as a fundamental right by virtue of Chapter III of the Constitution of India. In a prearrest bail petition, the moot question therefore remains, is to the justification of the executive to infringe upon such personal liberty of a citizen. Therefore, the larger ark of freedom of individual should be the backdrop on which this interpretative exercise has to be undertaken regard being had to contextual ambience in which the authorities are functioning. It is not out of place to mention herein that a person has a right not to be hounded by police. Therefore, the mechanism provided under the Act of 2015, which are aposteriori to apprehension/production of a child/juvenile cannot exclude the provision of Sec. 438 of Cr PC, especially when such a provision of law envisages a situation a priori to arrest/apprehension. Ouster clause of liberty: The liberty of a person is as important as his life and limb. Liberty cannot therefore, be lightly interfered with. An ouster clause of liberty has to receive strict interpretation. It is to be strictly construed. (vide Bhut Nath Mete vs. State of W B, (1974) 1 SCC 645 (Para 11]). Regard being had to the principle of interpretation and in particular the provision of Sec. 3 of the Act of 2015 as mentioned hereinabove, it can safely be concluded that the inner engineering of the Act of 2015 does not exclude the provision of anticipatory bail/pre-arrest bail under Sec. 438 of CrPC by necessary implication. Noticeably, no statutory law in India, however draconian that might be, has been interpreted to exclude the beneficial provision of pre-arrest bail as envisaged under Sec. 438 of Cr PC. In this regard it is profitable to refer to the provisions of the Prevention of Money Laundering Act, 2002 (PMLA) which have been interpreted to not to exclude the provision of anticipatory bail (vide Vijay Madanlal Choudhary & Ors. vs. Union of India & Ors., 2022 SCC Online 929 [Para 407]). No express exclusion: It is also to be mentioned that the Act of 2015 being a beneficial legislation cannot be construed to exclude another beneficial provision which is a necessary component of Article 21 of the Constitution of India, that too by way of necessary implication. It is noteworthy that when the Legislature in its wisdom has excluded the provisions of Sec. 438 of CrPC in some special acts like Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, the same exclusion is not found within the four corners of the Act of 2015. No such legislative prescription has found place in the Act of 2015. Therefore, in absence of a clear legislative interdict, same cannot be implanted by way of judicial interpretation. Apprehension vis a vis arrest: In the Act of 2015, the Legislature might have consciously used the term "apprehension" in place of "arrest". Linguistically, both the terms may have different connotations but the consequence of both are same i.e., deprivation of personal liberty. Therefore, employment of the word 'apprehension' will not make any significant change in the texture of the statute regarding applicability of the provision under Sec. 438 of the Cr PC. The word arrest has been given a different connotation altogether by the Hon'ble Supreme Court of India. The stereotype liberal interpretation of the words 'arrest' and 'custody' was done away with by the Apex Court. The issue of remand under Sec. 167(2) of Cr PC was also interpreted in a liberal way in order to cope up with liberty clause qua the Foreign Exchange Regulation Act, 1973 and the Customs Act, 1962. (vide Directorate of Enforcement v. Deepak Mahajan and Anr. (1994) 3 SCC 440 [Para 14/22/31-34/38/45/46-48/54]). The issue of arrest, police custody, judicial custody received a completely different dimension by the Apex Court wherein 'house arrest' has been read into the provision under Sec. 167(2) of Cr PC. (vide Gautam Navlakha v. National Investigation Agency, 2021 (7) SCALE 379 [Para 43-46]). Liberal Interpretation of Sec. 438 Cr PC: That apart, the application of Sec. 438 of CrPC cannot be denied in absence of any Legislative mandate to that effect as the same would violate the provision of Article 21 of the Constitution of India. It is trite law that beneficent provision contained in Sec. 438 of Cr PC must be saved and not abrogated. Sec. 438 of the Cr PC, in the form in which it is codified by the Legislature, is open to no exception unless the same is otherwise provided. Any other interpretation may throw it to a constitutional challenge by reading words into it. [Gurbaksh Singh Sibba and Ors. Vs State of Punjab, (1980) 2 SCC 565, [Para 26]. It will be disastrous to interpret the term 'apprehension' in contradistinction with arrest as in such situation the concept of statutory bail envisaged under Sec. 167(2) of CrPC will no longer remain available with a juvenile. Sec. 167(1) of CrPC opens up with phrase "wherever any person is arrested and detained in custody...". Sub-sec. (2) of Sec. 167 which embraces the provision of statutory bail starts with the expression "The Magistrate to whom the accused is forwarded ...". If in case the word 'apprehension' is understood differently with 'arrest', then Sec. 167(2) Cr PC will be inapplicable to a juvenile/ child in conflict with law. In this regard it is not out of place to mention that Apex Court in context of provisions of PMLA has approved the applicability of Sec. 167(2) Cr PC. (vide Vijay Madanlal Choudhary (supra) [Para 421]). In Case of Two views: As mentioned herein above, while interpreting the Act of 2015, it has to be kept in mind that the purpose of the Act of 2015 is to ensure that the children should be protected. In such backdrop, when two views are possible, one should prefer to take a view which is in favor of the children. [vide Shilpa Mittal vs State (NCT of Delhi), (2020) 2 SCC 787 [Para 31/35]. In the aforesaid guiding principle, the beneficent provision of anticipatory bail should not be assumed to be excluded in the Act of 2015. It can be safely concluded that in legal parlance there is hardly any difference in connotations of both the terms, even though linguistically both may be different. The aforesaid argument may be emboldened by the observation of the Hon'ble Supreme Court of India in Bhavesh Jayanti Lakhani vs. State of Maharashtra and Ors., (2009) 9 SCC 551 [para 78]. If apprehension is construed to be something different from arrest, then there will be no bar in arresting a child inasmuch as the Act of 2015 is silent about word. Regard being had to be provisions of Sec. 4(2) of CrPC read with Sec. 1(4) of the Act of 2015, the police will have the right to arrest carte blanche. Arrest/apprehension is not excluded qua a child, what is excluded is subsequent formalities of arrest as envisaged under Sec. 46(4) of CrPC. So far this argument is concerned, it can be said that Sec. 1(4) of the Act of 2015 is akin to Ss. 4(2)/5 of CrPC. The exclusion is only to the extent of inconsistency and not overall. However, as we see it, there is no conflict between the provisions of Sec. 438 of the CrPC and Sec. 10 or 12 of the Act of 2015 as both operate in different fields. It is well settled that the non-obstante clause has overriding effect only in case of inconsistency. [vide Chief Information Commissioner Vs. High Court of Gujarat and another, (2020) 4 SCC 702(Para)]. Another pivotal argument is the consequence of rejection of anticipatory bail. The consequence is arrest and subsequent custody. But as per Sec. 10 read with Sec. 12 of the Act of 2015, an arrest in a misnomer when it comes to a child. Hence, by necessary implication the provision under Sec. 438 of CrPC is excluded. In this regard, it is not out of place to mention that the conception of bail is not alien to the Act of 2015 and therefore in a given case High Court of Sessions can pass necessary directions for appearance or production before board even in case of rejection of such application. Tersely saying, relief may be tailored according to need of the case.