# Shahaab Ali (Minor) & Anr v. State of U.P

- **Citation:** Crl. Misc. Anticipatory Bail Application No. 597 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-20
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 597 of 2020
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahaab-ali-minor-anr-v-state-of-u-p-46313
- **Pages:** 30

## Headnote

A. Criminal Law- Indian Penal Code,1860Sections 420,467,468, 471, 120B,504, 506
&
Code
of
Criminal
Procedure,1973Section
438-application-rejectionchallenge to- maintainability of section
438 at the behest of a minor-once a first
information is registered with regard to a
child in conflict with law, the provisions of
Section 438 stand impliedly excluded-the
2015 Act dealing with arrest and detention
must prevail over any other law-section
438 can be applied at pre recordal of
information stage-when the information
recorded u/s 10 of the 2015 Act, section
438 cannot be applied.(Para 3 to 43)

In the present case, a first information report
has already come to be lodged against the two
applicants.the police cannot apprehend the
applicants and procedure prescribed by section
10 and 12 will have to be followed.(Para 42)

The application is dismissed. (E-6)

List of Cases Cited:-

## Text

_Characters 0–39,839 of 106,034. This is a partial read: ask again with offset=39839 for what follows._

1252 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances on the analogy of the Full
Bench decision in Chandradeo Pandey, as
this revision under Section 25 of the Act,
1887 is before the High Court, it is Article
137 of the Act, 1963 which applies and the
limitation in such circumstances for filing
the application for substitution in an SCC
revision under Section 25 of the Act, 1887
would be 3 years. It being so, the
application of the revisionist is within time.
As no objections have been filed to the
application for substitution on any other
ground nor any other objection has been
raised during argument therefore the same
is allowed. Let necessary substitution be
carried out. List immediately after regular
work is resumed in the Courts.
----------
(2020)03-05ILR A1252
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Crl. Misc. Anticipatory Bail Application No. 597 of
2020

Shahaab Ali (Minor) & Anr. ...Applicants
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Sri Vinay Kumar Upadhyay, Sri Pramod
Bhardwaj

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law- Indian Penal Code,1860Sections 420,467,468, 471, 120B,504, 506
&
Code
of
Criminal
Procedure,1973Section
438-application-rejectionchallenge to- maintainability of section
438 at the behest of a minor-once a first
information is registered with regard to a
child in conflict with law, the provisions of
Section 438 stand impliedly excluded-the
2015 Act dealing with arrest and detention
must prevail over any other law-section
438 can be applied at pre recordal of
information stage-when the information
recorded u/s 10 of the 2015 Act, section
438 cannot be applied.(Para 3 to 43)

In the present case, a first information report
has already come to be lodged against the two
applicants.the police cannot apprehend the
applicants and procedure prescribed by section
10 and 12 will have to be followed.(Para 42)

The application is dismissed. (E-6)

List of Cases Cited:-

1. Gopakumar Vs. St. Of Kerala (2012) SCC
Online Ker 27614

2. Preetam Pathak Vs. St. Of Chh. (2014) SCC
Online Chh 125

3. Mr. X S/O Baby V.M. Vs. St. Of Ker,Bail
Application No. 3320 of 2018

4. Vishwa Mitter Vs. O.P. Poddar, AIR (1984) SC 5

5. Sudhir Sharma Vs. St. Of Chh. (2017) SCC
Online Chh 1554

6. Birbal Munda & Ors Vs. St. Of Jhar.(2019)
SCC Online Jhar 1794

7. K. Vignesh Vs. St.( 2017) SCC Online Mad
28442

8. Satendra Sharma Vs. St. Of M.P.,MCRC No.
4183 of 2014

9. Kapil Durgawani Vs. St. Of M.P. (2010) 4
MPJR 155

10. Sandeep Singh Tomar Vs. St. Of M.P.,MCRC
No. 9816 of 2013

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard learned counsel for the
applicants, Sri Vikas Sahai learned A.G.A.
for the State and perused the record.
3-5 All. Shahaab Ali (Minor) & Anr. Vs. State of U.P.
1253

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.

4. In order to deal with the question that is
raised, it would firstly be necessary to notice the
provisions made in the 2015 Act as also the
provisions that were engrafted and put in place
in the Juvenile Justice (Care and Protection
of Children) Act, 2000 Act5 which since
stands repealed. Dealing firstly with the
provisions contained in the 2000 enactment, it
becomes pertinent to notice the provisions
made in Section 1(4) thereof:

"1. [(4) Notwithstanding anything
contained in any other law for the time being in
force, the provisions of this Act shall apply to
all cases involving detention, prosecution,
penalty or sentence of imprisonment of
juveniles in conflict with law under such other
law.]"

5. The 2000 Act envisaged the
constitution of a Board in terms of Section
4 that read thus: -

"4. Juvenile Justice Board.--
(1)Notwithstanding anything contained in
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
the Code of Criminal Procedure, 1973 (2 of
1974), the State Government may,[within a
period of one year from the date of
commencement of the Juvenile Justice
(Care
and
Protection
of
Children)
Amendment Act, 2006, by notification in
the Official Gazette, constitute for every
district], one or more Juvenile Justice
Boards for exercising the powers and
discharging the duties conferred or imposed
on such Boards in relation to juveniles in
conflict with law under this Act.

(2)A Board shall consist of a
Metropolitan Magistrate or a Judicial
Magistrate of the first class, as the case
may be, and two social workers of whom at
least one shall be a woman, forming a
Bench and every such Bench shall have the
powers conferred by the Code of Criminal
Procedure, 1973 (2 of 1974), on a
Metropolitan Magistrate or, as the case may
be, a Judicial Magistrate of the first class
and the Magistrate on the Board shall be
designated as the principal Magistrate."

6. Section 10 of the 2000 Act was framed
in the following terms: -

"10.Apprehension of juvenile in
conflict with law. --(1)As soon as a juvenile in
conflict with law is apprehended by police, he
shall be placed under the charge of the special
juvenile police unit or the designated police
officer, who shall produce the juvenile before
the Board without any loss of time but within a
period of twenty-four hours of his apprehension
excluding the time necessary for the journey,
from the place where the juvenile was
apprehended, to the Board:

Provided that in no case, a juvenile in
conflict with law shall be placed in a police
lockup or lodged in a jail.]

(2)The State Government may make
rules consistent with this Act,--

(i)to provide for persons through
whom
(including
registered
voluntary
organisations) any juvenile in conflict with law
may be produced before the Board;

(ii) to provide the manner in which
such juvenile may be sent to an observation
home."

7. The subject of bail of a juvenile was
governed by the provisions of Section 12 which
read thus: -

"12.Bail of juvenile. --(1)When
any person accused of a bailable or nonbailable offence, and apparently a juvenile,
is arrested or detained or appears or is
brought before a Board, such person shall,
notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of
1974) or in any other law for the time being
in force, be released on bail with or without
surety [or placed under the supervision of a
Probation Officer or under the care of any
fit institution of fit person] but he shall not
be so released if there appear reasonable
grounds for believing that the release is
likely to bring him into association with
any known criminal or expose him to
moral, physical or psychological danger or
that his release would defeat the ends of
justice.

(2)When such person having been
arrested is not released on bail under subsection (1) by the officer incharge of the
police station, such officer shall cause him
to be kept only in an observation home in
the prescribed manner until he can be
brought before a Board.

(3)When such person is not
released on bail under sub-section (1) by
the Board it shall, instead of committing
him to prison, make an order sending him
to an observation home or a place of safety
for such period during the pendency of the
3-5 All. Shahaab Ali (Minor) & Anr. Vs. State of U.P.
1255
inquiry regarding him as may be specified
in the order."

8. The commission of an offence
allegedly committed by a "child in conflict
with law" was to be enquired into by the
Board in accordance with the procedure
prescribed in Section 14. On the Board
being satisfied after due enquiry that a
juvenile had committed an offence, it was
obliged
to
pass
further
orders
as
enumerated in Section 15. Section 16 of the
2000 Act injuncted the Board or the
competent court from passing any sentence
of death or imprisonment which may
extend to imprisonment for life. It also
injuncted passing of orders committing a
juvenile to prison in default of payment of
fine or failure to furnish security.

9. The 2000 Act was repealed and
replaced by the 2015 enactment which
came into force on 31 December 2015. The
S.O.R. of the amending Act read thus:-

"Statement
of
Objects
and
Reasons.- Article 15 of the Constitution,
inter alia, confers upon the State powers to
make
special
provision
for
children.
Articles 39 (e) and (f), 45 and 47 further
makes the State responsible for ensuring
that all needs of children are met and their
basic human rights are protected.

2.
The
United
Nations
Convention on the Rights of Children,
ratified by India on 11 December, 1992,
requires the State Parties to undertake all
appropriate measures in case of a child
alleged as, or accused of, violating any
penal law, including (a) treatment of the
child in a manner consistent with the
promotion of the child's sense of dignity
and worth (b) reinforcing the child's respect
for the human rights and fundamental
freedoms of others (c) taking into account
the child's age and the desirability of
promoting the child's reintegration and the
child's assuming a constructive role in
society.

3. The Juvenile Justice (Care and
Protection of Children) Act was enacted in
2000 to provide for the protection of
children. The Act was amended twice in
2006 and 2011 to address gaps in its
implementation and make the law more
child-friendly. During the course of the
implementation of the Act, several issues
arose such as increasing incidents of abuse
of children in institutions, inadequate
facilities, quality of care and rehabilitation
measures in Homes, high pendency of
cases, delays in adoption due to faulty and
incomplete processing, lack of clarity
regarding
roles,
responsibilities
and
accountability
of
institutions
and,
inadequate provisions to counter offences
against
children
such
as
corporal
punishment, sale of children for adoption
purposes, etc. have highlighted the need to
review the existing law.

4. Further, increasing cases of
crimes committed by children in the age
group of 16-18 years in recent years makes
it evident that the current provisions and
system under the Juvenile Justice (Care and
Protection of Children) Act, 2000, are ill
equipped to tackle child offenders in this
age group. The data collected by the
National Crime Records Bureau establishes
that crimes by children in the age group of
16-18 years have increased especially in
certain categories of heinous offences.

5.
Numerous
changes
are
required in the existing Juvenile Justice
(Care and Protection of Children) Act,
2000 to address the above mentioned issues
and therefore, it is proposes to repeal
existing
Juvenile
Justice
(Care
and
Protection of Children) Act, 2000 and reenact a comprehensive legislation inter alia
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
to provide for general principles of care and
protection of children, procedures in case
of children in need of care and protection
and
children
in
conflict
with
law,
rehabilitation and social re-integration
measures for such children, adoption of
orphan,
abandoned
and
surrendered
children and offences committed against
children. This legislation would thus ensure
proper
care,
protection,
development,
treatment and social re-integration of
children in difficult circumstance by
adopting a child-friendly approach keeping
in view the best interest of the child in
mind.

6. The notes on clauses explain in
detail the various provisions contained in
the Bill.

7. The Bill seeks to achieve the
above objectives."

Section
1(4)
of
the
2015
enactment stipulates: -

"1 (4) Notwithstanding anything
contained in any other law for the time
being in force, the provisions of this Act
shall apply to all matters concerning
children in need of care and protection and
children in conflict with law, including -

(i)
apprehension,
detention,
prosecution, penalty or imprisonment,
rehabilitation and social reintegration of
children in conflict with law;

(ii) procedures and decisions or
orders relating to rehabilitation, adoption,
reintegration, and restoration of children in
need of care and protection."

10. The expression "child in conflict
with law" is defined in Section 2(13) to
mean a child who is alleged or found to
have committed an offence and who has
not completed 18 years of age on the date
of commission of such offence. Section 4
which is in terms similar to the provisions
made in the 2000 Act reads as under:-

"4. Juvenile Justice Board.-(1)
Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of
1974),
the
State
Government
shall,
constitute for every district, one or more
Juvenile Justice Boards for exercising the
powers and discharging its functions
relating to children in conflict with law
under this Act.

(2) A Board shall consist of a
Metropolitan Magistrate or a Judicial
Magistrate of First Class not being Chief
Metropolitan Magistrate or Chief Judicial
Magistrate (hereinafter referred to as
Principal Magistrate) with at least three
years experience and two social workers
selected in such manner as may be
prescribed, of whom at least one shall be a
woman, forming a Bench and every such
Bench shall have the powers conferred by
the Code of Criminal Procedure, 1973 (2 of
1974) on a Metropolitan Magistrate or, as
the case may be, a Judicial Magistrate of
First Class."

11. Since the answer to the question
posited would turn on the provisions made
in Section 10 and 12, it would be apposite
to extract the two sections herein below: -

"10.Apprehension
of
child
alleged to be in conflict with law.- (1) As
soon as a child alleged to be in conflict
with law is apprehended by the 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 without any loss of time but within a
period
of
twenty-four
hours
of
apprehending the child excluding the time
necessary for the journey, from the place
where such child was apprehended:

Provided that in no case, a child
alleged to be in conflict with law shall be
3-5 All. Shahaab Ali (Minor) & Anr. Vs. State of U.P.
1257
placed in a police lock-up or lodged in a
jail.

(2) The State Government shall
make rules consistent with this Act,--

(i) to provide for persons through
whom (including registered voluntary or
non-governmental organisations) any child
alleged to be in conflict with law may be
produced before the Board;

(ii) to provide for the manner in
which the child alleged to be in conflict
with law may be sent to an observation
home or place of safety, as the case may be.

....

12.Bail to a person who is apparently
a child alleged to be in conflict with law.-(1)
When any person, who is apparently a child and is
alleged to have committed a bailable or nonbailable offence, is apprehended or detained by the
police or appears or brought before a Board, such
person shall, notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of 1974)
or in any other law for the time being in force, be
released on bail with or without surety or placed
under the supervision of a probation officer or
under the care of any fit person:

Provided that such person shall not be
so released if there appears reasonable grounds for
believing that the release is likely to bring that
person into association with any known criminal or
expose the said person to moral, physical or
psychological danger or the person's release would
defeat the ends of justice, and the Board shall record
the reasons for denying the bail and circumstances
that led to such a decision.

(2) When such person having been
apprehended is not released on bail under subsection(1)by the officer in-charge of the police
station, such officer shall cause the person to be
kept only in an observation home in such manner
as may be prescribed until the person can be
brought before a Board.

(3) When such person is not released on
bail under sub-section(1)by the Board, it shall make
an order sending him to an observation home or a
place of safety, as the case may be, for such period
during the pendency of the inquiry regarding the
person, as may be specified in the order.

(4) When a child in conflict with law is
unable to fulfil the conditions of bail order within
seven days of the bail order, such child shall be
produced before the Board for modification of the
conditions of bail."

12. Section 10 places safeguards
with respect to a juvenile who is alleged
to have committed a cognizable offence
by providing that he shall be put in the
charge of the SJPU or the designated
CWPO who shall be obliged to produce
the child before the Board without any
loss of time and in any case within 24
hours of apprehension. The authorities
including the Board enjoined with
undertaking an enquiry are obliged to
follow the procedure as prescribed in
the 2015 Act and as far as possible also
to bear in mind the procedure as laid
down in the Criminal Procedure Code
for trial of summons cases. Section 14
prescribes the procedure to be adhered
to in respect of the enquiry to be
initiated in respect of a child in conflict
with law. The 2015 enactment then
makes special provisions with respect to
preliminary assessment in enquiries in
respect of heinous offences committed
by a juvenile. The expression "heinous
offence" has been explained in Section
2(33) to include offences for which the
minimum punishment under the I.P.C.
or any other law for the time being in
force is imprisonment of seven years or
more.

13. Exercising powers conferred by
Section 110 of the 2015 Act, the Union
Government has also framed model rules
titled the Juvenile Justice (Care and
Protection of Children) Model Rules
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
20166. Rule 8 deals with the subject of pre
production action by the police and other
agencies. The said rule reads thus: -

"8.
Pre-Production
action
of
Police and other Agencies.-(1) No First
Information Report shall be registered
except where a heinous offence is alleged
to have been committed by the child, or
when such offence is alleged to have been
committed jointly with adults. In all other
matters, the Special Juvenile Police Unit or
the Child Welfare Police Officer shall
record the information regarding the
offence alleged to have been committed by
the child in the general daily diary followed
by a social background report of the child
in Form 1 and circumstances under which
the child was apprehended, wherever
applicable, and forward it to the Board
before the first hearing:

Provided that the power to
apprehend shall only be exercised with
regard to heinous offences, unless it is in
the best interest of the child. For all other
cases involving petty and serious offences
and cases where apprehending the child is
not necessary in the interest of the child,
the police or Special Juvenile Police Unit
or Child Welfare Police Officer shall
forward the information regarding the
nature of offence alleged to be committed
by the child along with his social
background report in Form 1 to the Board
and intimate the parents or guardian of the
child as to when the child is to be produced
for hearing before the Board.

(2) When a child alleged to be in
conflict with law is apprehended by the
police, the police officer concerned shall
place the child under the charge of the
Special Juvenile Police Unit or the Child
Welfare
Police
Officer,
who
shall
immediately inform:

(i) the parents or guardian of the
child that the child has been apprehended
along with the address of the Board where
the child will be produced and the date and
time when the parents or guardian need to
be present before the Board;

(ii)
the
Probation
Officer
concerned,
that
the
child
has
been
apprehended so as to enable him to obtain
information regarding social background of
the child and other material circumstances
likely to be of assistance to the Board for
conducting the inquiry; and

(iii) a Child Welfare Officer or a
Case Worker, to accompany the Special
Juvenile Police Unit or Child Welfare
Police Officer while producing the child
before the Board within twenty- four hours
of his apprehension.

(3)
The
police
officer
apprehending a child alleged to be in
conflict with law shall:

(i) not send the child to a police
lock-up and not delay the child being
transferred to the Child Welfare Police
Officer from the nearest police station. The
police officer may under sub-section (2) of
section 12 of the Act send the person
apprehended to an observation home only
for such period till he is produced before
the Board i.e. within twenty-four hours of
his being apprehended and appropriate
orders are obtained as per rule 9 of these
rules;

(ii) not hand-cuff, chain or
otherwise fetter a child and shall not use
any coercion or force on the child;

(iii) inform the child promptly
and directly of the charges levelled against
him through his parent or guardian and if a
First Information Report is registered, copy
of the same shall be made available to the
child or copy of the police report shall be
given to the parent or guardian;
3-5 All. Shahaab Ali (Minor) & Anr. Vs. State of U.P.
1259

(iv) provide appropriate medical
assistance, assistance of interpreter or a
special educator, or any other assistance
which the child may require, as the case
may be;

(v) not compel the child to
confess
his
guilt
and
he
shall
be
interviewed only at the Special Juvenile
Police Unit or at a child-friendly premises
or at a child friendly corner in the police
station, which does not give the feel of a
police station or of being under custodial
interrogation. The parent or guardian, may
be present during the interview of the child
by the police;

(vi) not ask the child to sign any
statement; and

(vii) inform the District Legal
Services Authority for providing free legal
aid to the child.

(4) The Child Welfare Police
Officer shall be in plain clothes and not in
uniform.

(5) The Child Welfare Police
Officer shall record the social background
of
the
child
and
circumstances
of
apprehending in every case of alleged
involvement of the child in an offence in
Form 1 which shall be forwarded to the
Board forthwith. For gathering the best
available information, it shall be necessary
upon the Special Juvenile Police Unit or the
Child Welfare Police Officer to contact the
parent or guardian of the child.

(6) A list of all designated Child
Welfare Police Officers, Child Welfare
Officers, Probation Officers, Para Legal
Volunteers,
District
Legal
Services
Authorities and registered voluntary and
non-governmental
organisations
in
a
district, Principal Magistrate and members
of the Board, members of Special Juvenile
Police Unit and Childline Services with
contact
details
shall
be
prominently
displayed in every police station.

(7) When the child is released in
a case where apprehending of the child is
not warranted, the parents or guardians or a
fit person in whose custody the child
alleged to be in conflict with law is placed
in the best interest of the child, shall furnish
an undertaking on a non-judicial paper in
Form 2 to ensure their presence on the
dates during inquiry or proceedings before
the Board.

(8) The State Government shall
maintain a panel of voluntary or nongovernmental organisations or persons who
are in a position to provide the services of
probation, counselling, case work and also
associate with the Police or Special
Juvenile Police Unit or the Child Welfare
Police Officer, and have the requisite
expertise to assist in physical production of
the child before the Board within twentyfour hours and during pendency of the
proceedings
and
the
panel
of
such
voluntary
or
non-governmental
organisations or persons shall be forwarded
to the Board.

(9) The State Government shall
provide funds to the police or Special
Juvenile Police Unit or the Child Welfare
Police Officer or Case Worker or person
for the safety and protection of children and
provision of food and basic amenities
including travel cost and emergency
medical care to the child apprehended or
kept under their charge during the period
such children are with them."

14. The process to be followed for
production of a child is set forth in Rule 9
which is in the following terms: -

9. Production of the child alleged
to be in conflict with law before the Board.-
(1) When the child alleged to be in conflict
with law is apprehended, he shall be
produced before the Board within twenty-
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
four hours of his being apprehended, along
with a report explaining the reasons for the
child being apprehended by the police.

(2) On production of the child
before the Board, the Board may pass
orders as deemed necessary, including
sending the child to an observation home or
a place of safety or a fit facility or a fit
person.

(3) Where the child produced
before the Board is covered under section
83 of the Act, including a child who has
surrendered, the Board may, after due
inquiry
and
being
satisfied
of
the
circumstances of the child, transfer the
child to the Committee as a child in need of
care and protection for necessary action,
and or pass appropriate directions for
rehabilitation, including orders for safe
custody and protection of the child and
transfer to a fit facility recognised for the
purpose which shall have the capacity to
provide
appropriate
protection,
and
consider transferring the child out of the
district or out of the State to another State
for the protection and safety of the child.

(4) Where the child alleged to be
in conflict with law has not been
apprehended and the information in this
regard is forwarded by the police or Special
Juvenile Police Unit or Child Welfare
Police Officer to the Board, the Board shall
require the child to appear before it at the
earliest so that measures for rehabilitation,
where necessary, can be initiated, though
the final report may be filed subsequently.

(5) In case the Board is not
sitting, the child alleged to be in conflict
with law shall be produced before a single
member of the Board under sub-section (2)
of section 7 of the Act.

(6) In case the child alleged to be
in conflict with law cannot be produced
before the Board or even a single member
of
the
Board
due
to
child
being
apprehended during odd hours or distance,
the child shall be kept by the Child Welfare
Police Officer in the Observation Home in
accordance with rule 69 D of these rules or
in a fit facility and the child shall be
produced before the Board thereafter,
within twenty-four hours of apprehending
the child.

(7) When a child is produced
before an individual member of the Board,
and an order is obtained, such order shall
be ratified by the Board in its next meeting.

15. Rule 10 prescribes the procedure
to be adopted by the Board post production
of the child in conflict with law and
stipulates:-

"10. Post-production processes by
the Board.- (1) On production of the child
before the Board, the report containing the
social
background
of
the
child,
circumstances of apprehending the child
and
offence
alleged
to
have
been
committed by the child as provided by the
officers, individuals, agencies producing
the child shall be reviewed by the Board
and the Board may pass such orders in
relation to the child as it deems fit,
including orders under sections 17 and 18
of the Act, namely:

(i) disposing of the case, if on the
consideration of the documents and record
submitted
at
the
time
of
his
first
appearance, his being in conflict with law
appears to be unfounded or where the child
is alleged to be involved in petty offences;

(ii) referring the child to the
Committee where it appears to the Board
that the child is in need of care and
protection;

(iii) releasing the child in the
supervision or custody of fit persons or fit
institutions or Probation Officers as the
case may be, through an order in Form 3,
3-5 All. Shahaab Ali (Minor) & Anr. Vs. State of U.P.
1261
with a direction to appear or present a child
for an inquiry on the next date; and

(iv) directing the child to be kept
in
the
Child
Care
Institution,
as
appropriate, if necessary, pending inquiry
as per order in Form 4.

(2) In all cases of release pending
inquiry, the Board shall notify the next date of
hearing, not later than fifteen days of the first
summary
inquiry
and
also
seek
social
investigation report from the Probation Officer,
or in case a Probation Officer is not available the
Child Welfare Officer or social worker
concerned through an order in Form 5.

(3) When the child alleged to be in
conflict with law, after being admitted to bail,
fails to appear before the Board, on the date fixed
for hearing, and no application is moved for
exemption on his behalf or there is not sufficient
reason for granting him exemption, the Board
shall, issue to the Child Welfare Police Officer
and the Person-in-charge of the Police Station
directions for the production of the child.

(4) If the Child Welfare Police Officer
fails to produce the child before the Board even
after the issuance of the directions for production
of the child, the Board shall instead of issuing
process under section 82 of the Code of Criminal
Procedure, 1973 pass orders as appropriate under
section 26 of the Act.

(5) In cases of heinous offences
alleged to have been committed by a child, who
has completed the age of sixteen years, the Child
Welfare Police Officer shall produce the
statement of witnesses recorded by him and
other documents prepared during the course of
investigation within a period of one month from
the date of first production of the child before the
Board, a copy of which shall also be given to the
child or parent or guardian of the child.

(6) In cases of petty or serious
offences, the final report shall be filed before the
Board at the earliest and in any case not beyond
the period of two months from the date of
information to the police, except in those cases
where it was not reasonably known that the
person involved in the offence was a child, in
which case extension of time may be granted by
the Board for filing the final report.

(7) When witnesses are produced
for examination in an inquiry relating to a
child alleged to be in conflict with law, the
Board shall ensure that the inquiry is not
conducted in the spirit of strict adversarial
proceedings and it shall use the powers
conferred by section 165 of the Indian
Evidence Act, 1872 (1 of 1872) so as to
interrogate the child and proceed with the
presumptions in favour of the child.

(8) While examining a child
alleged to be in conflict with law and
recording his statement during the inquiry
under section 14 of the Act, the Board shall
address the child in a child-friendly manner
in order to put the child at ease and to
encourage him to state the facts and
circumstances without any fear, not only in
respect of the offence which has been
alleged against the child, but also in respect
of the home and social surroundings, and
the influence or the offences to which the
child might have been subjected to.

(9) The Board shall take into
account
the
report
containing
circumstances of apprehending the child
and the offence alleged to have been
committed
by
him
and
the
social
investigation report in Form 6 prepared by
the Probation Officer or the voluntary or
non- governmental organisation, along with
the evidence produced by the parties for
arriving at a conclusion.

10 A. Preliminary assessment
into heinous offences by Board.- (1) The
Board shall in the first instance determine
whether the child is of sixteen years of age
or above; if not, it shall proceed as per
provisions of section 14 of the Act.

(2) For the purpose of conducting
a preliminary assessment in case of heinous
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
offences, the Board may take the assistance
of psychologists or psycho-social workers
or other experts who have experience of
working
with
children
in
difficult
circumstances. A panel of such experts may
be made available by the District Child
Protection Unit, whose assistance can be
taken by the Board or could be accessed
independently.

(3) While making the preliminary
assessment, the child shall be presumed to
be innocent unless proved otherwise.

(4) Where the Board, after
preliminary assessment under section 15 of
the Act, passes an order that there is a need
for trial of the said child as an adult, it shall
assign reasons for the same and the copy of
the order shall be provided to the child
forthwith."

16. The answer to the question as
framed would principally depend upon
recognising the scope and essential intent
underlying Section 1(4) which underscores
that the provisions of the 2015 Act insofar
as
they
relate
to
the
subject
of
apprehension,
detention,
prosecution,
penalty or imprisonment would apply in
respect of a children in conflict with law
notwithstanding anything contained in any
other law for the time being in force. It
would also be relevant to note that the
provisions of Section 5 of the Criminal
Procedure Code, strictly speaking, may
have no application since it relates to
enactments that were in force when that
Code was promulgated. Undisputedly the
2015 Act is a subsequent legislation and its
provisions consequently would not be
effected by Section 5. However Section 4
(2) of the Criminal Procedure Code would
have limited application and be recognised
as governing the field in areas for which no
special procedure or provision is made
under the 2015 Act. What impact Section 4
(2) would ultimately have on the question
that is raised shall be dealt with a little
later. Having set out the relevant provisions
engrafted in the 2015 Act and the Model
Rules, it would be apposite to briefly
recognise and underscore the nature of the
safeguards that are put in place in relation
to the arrest of a child in conflict with law
and the enquiry which is to be undertaken
by the Board.

PRE PRODUCTION STAGE

17. Section 10 apart from enjoining
the police to place the apprehended
juvenile in the custody of the SJPU or the
CWPO also restrains the authorities from
placing the juvenile in a police lock up or
jail. The provision mandates the placement
of the juvenile in an observation home or
place of safety till such time as he is
produced before the Board. In terms of the
Proviso appended to Rule 8 (1) of the
Model Rules, no child is to be apprehended
except in the case of commission of a
heinous offense or where it is otherwise in
his best interest. The Rule prescribes that
no FIR shall be lodged or registered except
where a heinous offense is alleged to have
been committed by a child. In all other
cases, the SJPU or the CWPO shall enter
the information received in the General
Diary, apprise the parents of the child and
transmit the information along with the
social background report to the Board. Rule
8 (3) reiterates the statutory restraint
against transmitting the child to jail,
placement of handcuffs or any other fetter,
his placement in the custody of the SJPU or
the CWPO and being accommodated in a
welfare home till his production before the
Board. It further mandates the child being
apprised of the charges levelled against him
and being provided with a copy of the FIR
if lodged. Additionally it provides for the
3-5 All. Shahaab Ali (Minor) & Anr. Vs. State of U.P.
1263
child being interviewed at the SJPU or a
child friendly place or corner of the police
station. The Rule requires the parents or the
guardian to be present during the interview
and also obliges the authorities to inform
the District Legal Services Authority to
enable it to provide legal aid to the child.
The Rule prescribes that the juvenile shall
not be compelled to sign any statement.
After the completion of these formalities
and not later
than 24 hours from
apprehension the child is to be produced
before the concerned Board. On a reading
of the aforesaid Rule and the numerous
obligations and safeguards put in place it is
evident that the apprehension of a child
under the 2015 Act is not akin to
incarceration or arrest as otherwise effected
under the Criminal Procedure Code. The
2015 Act appears to put in place a
comprehensive,
distinct
and
special
procedure insofar as the apprehension of a
child is concerned.

POST PRODUCTION STAGE

18. Upon being presented before the
Board, the opening and foremost issue
which arises is the consideration of bail. In
terms of Section 12 of the 2015 Act, the
Board is mandated to release the child on
bail unless it forms the opinion that the
child is likely to fall into the association of
known criminals, the release is likely to
have a negative physical, moral or
psychological impact or otherwise defeat
the ends of justice. Where the Board
decides to refuse bail, the child is liable to
be placed in an observation home till the
completion of the enquiry initiated under
the 2015 Act. These provisions are
mirrored in Rule 9 of the Model Rules.

19. Upon a thoughtful consideration
of the provisions noticed above, it is
manifest that the 2015 Act and the Model
Rules lay in place a special and overarching
procedure dealing with the apprehension of
a child in conflict with law.