# X Juvenile v. State of U.P. & Anr

- **Citation:** (2023) 3 ILRA 580
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-28
- **Case number:** Crl. Misc. Anticipatory Bail Application (U/S 438 Cr.P.C.) No. 11542 of 2022
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/x-juvenile-v-state-of-u-p-anr-49883
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
438
-Indian
Penal Code, 1860-Sections 307, 504 &
506-maintainability of-application filed on
3 All. X Juvenile Vs. State of U.P. & Anr.
581
behalf
of
minor
through
his
guardian/father seeking anticipatory bailSection 8(1) of the Juvenile Justice Act,
2015 that the Juvenile Justice Board has
been given exclusive power to deal with
all the proceedings under the Act relating
to children in conflict with law-The
Juvenile Justice Act has no where said
that
Section
438
Cr.P.C.
shall
have
application to the children in conflict with
law-Though Section 8(2) of the Juvenile
Justice Act gives similar powers to the
High Court or the Children Court but only
when matter is brought before it in appeal
or revision or otherwise-There is no
express provision empowering Children
Court or Sessions Court or High Court to
assume jurisdiction on itself for grant of
anticipatory bail by virtue of provisions of
Section 8(2) of the Juvenile Justice ActSection 12 of the Juvenile Justice Act,
2015 is equally applicable to bailable and
non-bailable offences-no distinction has
been
maintained
for
applicability
of
provisions of bail on the lines as has been
maintained under the provision of Section
436 to 439 of Cr.P.C.-Juvenile Justice Act
is a comprehensive legislation containing
all provisions with regard to children in
conflict with law and the provisions of
section 438 Cr.P.C. have no application
being extraneous and incompatiable with
the scheme as well as aim and objective
sought to be achieved by the Act.(Para 1
to 19)

The application is dismissed. (E-6)

List of Cases cited:

## Text

580 INDIAN LAW REPORTS ALLAHABAD SERIES
similar allegations, Case Crime No. 60 of
2022, under Sections 272, 273, 302, 34 IPC
and Section 60(A) of UP Excise Act and
Case Crime No. 40 of 2022, under Section
272, 273 IPC and Section 60(A) of UP
Excise Act were lodged against the
applicant and in both the aforesaid cases,
the applicant has been granted bail by
means of orders dated 29.06.2022 and
25.07.2022 passed by this Court in
Criminal Misc. Bail Application Nos.
26819 of 2022 and 31534 of 2022,
respectively. She has further submitted that
besides the applicant all the other accused
persons have been granted bail in the
present case.

6.The
learned
A.G.A.
has
opposed the prayer for grant of bail to the
applicant, but could not dispute the
aforesaid facts.

7.Having
considered
the
aforesaid facts and submissions and
keeping in view the fact that applicant has
been granted bail in two other cases
involving similar allegations as also the
fact that all the other co-accused have been
granted bail, whereas the applicant is
languishing in jail since 23.02.2022, I am
of the view that the applicant is entitled to
be released on bail on the ground of parity.
The
bail
application
is
accordingly
allowed.

8.Let the applicant - Rangesh
Yadav be released on bail in Case Crime
No. 0039 of 2022, under Sections 272, 273,
34, 420, 467, 468, 471 I.P.C. and Section
60-A of Excise Act, P.S. Ahraula, District
Azamgarh on his furnishing a personal
bond and two reliable sureties each of the
like amount to the satisfaction of the court
concerned subject to following conditions:-

(i) The applicant will not tamper
with the evidence during the trial.

(ii)
The
applicant
will
not
influence any witness.

(iii) The applicant will appear
before the trial court on the date fixed,
unless personal presence is exempted.

(iv) The applicant shall not
directly or indirectly make inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
to any police officer or tamper with the
evidence.

9.In case of breach of any of the
above condition, the prosecution shall be at
liberty to move an application bail before
this Court seeking cancellation of bail."

19. Considering the aforesaid facts,
this Court finds that the accused-applicant
is not entitled to be enlarged on bail. Thus,
these applications are hereby rejected at
this stage.
----------
(2023) 3 ILRA 580
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Misc. Anticipatory Bail Application (U/S 438
Cr.P.C.) No. 11542 of 2022

X Juvenile ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rakesh Pathak, Sri Shashank Shekhar
Tiwari

Counsel for the Opposite Parties:
G.A., Sri Prem Shankar Pandey

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
438
-Indian
Penal Code, 1860-Sections 307, 504 &
506-maintainability of-application filed on
3 All. X Juvenile Vs. State of U.P. & Anr.
581
behalf
of
minor
through
his
guardian/father seeking anticipatory bailSection 8(1) of the Juvenile Justice Act,
2015 that the Juvenile Justice Board has
been given exclusive power to deal with
all the proceedings under the Act relating
to children in conflict with law-The
Juvenile Justice Act has no where said
that
Section
438
Cr.P.C.
shall
have
application to the children in conflict with
law-Though Section 8(2) of the Juvenile
Justice Act gives similar powers to the
High Court or the Children Court but only
when matter is brought before it in appeal
or revision or otherwise-There is no
express provision empowering Children
Court or Sessions Court or High Court to
assume jurisdiction on itself for grant of
anticipatory bail by virtue of provisions of
Section 8(2) of the Juvenile Justice ActSection 12 of the Juvenile Justice Act,
2015 is equally applicable to bailable and
non-bailable offences-no distinction has
been
maintained
for
applicability
of
provisions of bail on the lines as has been
maintained under the provision of Section
436 to 439 of Cr.P.C.-Juvenile Justice Act
is a comprehensive legislation containing
all provisions with regard to children in
conflict with law and the provisions of
section 438 Cr.P.C. have no application
being extraneous and incompatiable with
the scheme as well as aim and objective
sought to be achieved by the Act.(Para 1
to 19)

The application is dismissed. (E-6)

List of Cases cited:
1. Raman & ors. Vs St. of Mah. & anr. (2022)
SCC OnLine Bom 1470
2. Shahaab Ali & anr.. Vs. St. of U.P. (2020) 2
ADJ 130

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. It appears that name of the
applicant-juvenile has been disclosed in the
memo of revision. This fault from the side
of applicant escaped detection by the
Registry.
The
concerned
section
of
Registry is directed to remove the name of
the applicant-minor from the title of the
revision as fed and shown in the data on
official website and represent him as
"Minor
'X'
Through
His
Guardian/Father, District Prayagraj."

2. Heard Sri Rakesh Pathak, learned
counsel for the applicant and Sri O.P.
Mishra, learned AGA for the State on the
point of maintainability of this anticipatory
bail application.

3. The present application has been
filed on behalf of minor ''X' through his
guardian/father seeking anticipatory bail in
F.I.R./Case Crime No. 0362 of 2022, under
Sections 307, 504 and 506 IPC, Police
Station Karchhana, District Prayagraj.

4. It is contended on behalf of the
applicant (who admittedly is a minor) that a
minor cannot be deprived of protection
available under Section 438 Cr.P.C. just
because he is not an adult. The contention
is ardently opposed by the State.

5. Before coming into effect of the
Juvenile Justice (Care and Protection of
Children) Act, 2015, the Juvenile Justice
(Care and Protection of Children) Act,
2000 was applicable. In the statement of
objects and reasons for enactment of the
new Act of 2015, it is mentioned that
numerous changes were required in the
existing Act of 2000 to address several
issues. It was proposed that the existing Act
of 2000 shall be repealed as the need for
comprehensive
legislation
was
felt
intensely inter alia to provide for general
principles of care and protection; the
procedure to be applied; rehabilitation and
social re-integration measures for such
582 INDIAN LAW REPORTS ALLAHABAD SERIES
children, adoption of orphan, abandoned
and surrendered children, and offences
committed
against
children.
It
was
expected that the legislation would thus
ensure
proper
care,
protection,
development, treatment and social reintegration
of
children
in
difficult
circumstance by adopting a child-friendly
approach keeping in view the best interest
of the child. The statement of objects and
reasons clearly indicate that the legislature
intended to provide for exhaustive statutory
provisions to deal with children involved in
offences with certain far reaching object in
mind while carefully treading a path
illuminated by the principle of best interest
of the child.

6. Section 1(4) of the Juvenile Justice
Act, 2015 contains a non-obstante clause
and is being reproduced for ready reference
as below:-

"(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 re-integration of
children in conflict with law;

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

Besides
using
the
phrase
"Notwithstanding anything contained in any
other law", Section 1 (4) uses two more
phrases which are meaningful in present
context. They are "all matters" concerning
the child in conflict with law and secondly the
word "including" apprehension, detention,
prosecution,
penalty
or
imprisonment
rehabilitation and social investigation of
children in conflict with law. The provisions
are clear, plain and free from obscurity. The
unmistakable conclusion which can be
drawn is that this Act seeks to deal
exhaustively with all matters concerning
child
offenders
including
their
apprehension, detention and prosecution.
No doubt the broader objective of the Act is to
bring back the child in main stream of the
society while applying a reformative approach
without forgetting the need to balance the
demands of justice of the victim and the
society at large. Lets briefly see how this
objective is sought to be achieved by this Act.

7. Before jumping to any conclusion, it
shall be useful to go through some provisions
of this enactment which will shed light on the
line of difference which has been scrupulously
maintained by the legislature while giving a
final shape to this law as compared to the
provisions of Cr.P.C.

8. It may be noted that Section 4(2) of
the Cr.P.C. says that all the offences under any
other law shall be investigated, inquired into,
tried, and otherwise dealt with according to the
provisions of Cr.P.C., but subject to any
enactment for the time being in force
regulating
the
manner
or
place
of
investigating,
inquiring
into,
trying
or
otherwise dealing with such offences. On the
basis of above provisions, it can be said that
the provisions of Cr.P.C. shall apply only
where the special enactment is silent on a
particular issue.

9. Now a question arises whether the
applicability of Section 438 Cr.P.C. is ruled
out by implication or otherwise in cases
where the Juvenile Justice Act, 2015 is
applicable?
First lets go through Section 438(1) Cr.P.C.
which is as below:-
3 All. X Juvenile Vs. State of U.P. & Anr.
583

"Where any person has reason to
believe that he may be arrested on
accusation of having committed a nonbailable offence, he may apply to the High
Court or the Court of Session for a
direction under this section that in the
event of such arrest he shall be released on
bail; and that Court may, after taking into
consideration, inter alia, the following
factors, namely:-

(i) the nature and gravity of the
accusation;

(ii)
the
antecedents
of
the
applicant including the fact as to whether
he has previously undergone imprisonment
on conviction by a Court in respect of any
cognizable offence;

(iii)
the
possibility
of
the
applicant to flee from justice; and

(iv) where the accusation has
been made with the object of injuring or
humiliating the applicant by having him so
arrested,

either
reject
the
application
forthwith or issue an interim order for
grant of anticipatory bail:

Provided that, where the High
Court or, as the case may be, the Court of
Session, has not passed any interim order
under this sub-section or has rejected the
application for grant of anticipatory bail, it
shall be open to an officer in-charge of a
police station to arrest, without warrant the
applicant on the basis of the accusation
apprehended in such application"

Section 438 Cr.P.C. speaks of
"apprehension of arrest".

10. Chapter V of the Cr.P.C. deals
with the arrest of persons. There are
number of provisions from Sections 41 to
60(A) dealing with arrest, who may arrest;
how an arrest can be affected; the matters
incidental thereto. The provisions of
Juvenile
Justice
Act
consciously,
couspicously and deliberately avoided the
use of word "arrest", instead the word
"apprehension" has been used in relation
to a child in conflict with law. And this
replacement is not without reason.

11. Chapter IV of the Juvenile
Justice Act, 2015 deals with the procedure
in relation to child in conflict with law; this
Chapter also contains most important
Section 10 to Section 12 which inter-alia
provide for "first appearance" before the
Board (this word is being used in its
comprehensive sense here).

Sections 10, 11 and 12 of the
Juvenile Justice Act, 2015 are being
reproduced herein below to give a clearer
picture which has been envisaged in the
Act in relation to children in conflict with
law.

"Section 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
placed in a police lockup 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
584 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

Section 11. Role of person in
whose charge child in conflict with law is
placed. Any person in whose charge a
child in conflict with law is placed, shall
while the order is in force, have
responsibility of the said child, as if the
said person was the childs parent and
responsible for the childs maintenance:

Provided that the child shall
continue in such persons charge for the
period
stated
by
the
Board,
notwithstanding that the said child is
claimed by the parents or any other person
except when the Board is of the opinion
that the parent or any other person are fit
to exercise charge over such child.

Section 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 abailable 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 persons
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 sub-section (1) by the officer-incharge of the police station, such officer
shall cause the person to be kept only in
an observation home 1[or a place of
safety, as the case may be] 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."

It is conspicuous that just after
apprehension, he shall be put either in
observation home or place of safety and
neither in jail nor lockup and shall be
treated with care.

This too is quite clear that this
Chapter of the Act of 2015 contains all the
provisions right from apprehension of child
alleged to be in conflict with law;
appearance of such child before the
Board;
grant of bail to him;
how to deal
with a child when bail is not granted;
where to place the child allegedly in
conflict with law before his production
(without apprehension) or production after
apprehension before the Board;
before
grant of bail or after grant of bail;
the
holding of an inquiry (which commences
3 All. X Juvenile Vs. State of U.P. & Anr.
585
from the very first production before the
Board under Section 14);
the manner and
the time limit for completion of an inquiry;
the orders which may be passed against
him; the orders which cannot be passed
against him;
the places where he can be
detained;
and several other matters in
relation to all the above. The word arrest is
conspicuous by its absence.

12. It is quite apparent from reading
of Section 8(1) of the Juvenile Justice Act
2015 that the Juvenile Justice Board has
been given exclusive power to deal with all
the proceedings under the Act relating to
children in conflict with law.
Section 8(1) of Juvenile Justice Act is as
below:-

"Notwithstanding
anything
contained in any other law for the time
being in force but save as otherwise
expressly provided in this Act, the Board
constituted for any district shall have the
power to deal exclusively with all the
proceedings under this Act, relating to
children in conflict with law, in the area
of jurisdiction of such Board."

Section 8(2) of Juvenile Justice
Act is as below:-

"The powers conferred on the
Board by or under this Act may also be
exercised by the High Court and the
Children's Court, when the proceedings
come before them under section 19 or in
appeal, revision or otherwise."

On the one hand the powers given
to the Board are exclusive unless saved by
any express provisions in the Juvenile
Justice Act, 2015 itself. On the other hand
no window appears to have been left open
for meddling with the affairs of juvenile
offenders in terms of provisions of Section
438 Cr.P.C. The Juvenile Justice Act has
no where said that Section 438 Cr.P.C.
shall have application to the children in
conflict with law. Though Section 8(2) of
the Juvenile Justice Act gives similar
powers to the High Court or the Children
Court but only when matter is brought
before it in appeal or revision or otherwise.
There is no express provision empowering
Children Court or Sessions Court or High
Court to assume jurisdiction on itself for
grant of anticipatory bail by virtue of
provisions of Section 8(2) of the Juvenile
Justice Act.

13. Under the scheme of adjudicating
hierarchy under the Juvenile Justice Act,
2015 the Board functions as court of
original jurisdiction, the Children Court
functions at intermediary level and in
certain cases also as a trial Court (for
children who are tried as adult). The
appeals shall ordinarily lie to Children
Court (Section 101) and the revision to
High Court (Section 102). It may also be
usefully noticed that the Children's Court
here is not equal to a Sessions Court or vice
versa. The Children Court has been defined
under Section 2(20) of the Juvenile Justice
Act as a Court established under the
Commissions for Protection Of Child
Right's Act, 2005 or a Special Court under
the POCSO Act, 2012 and where there are
no such Courts, then only the Court of
Sessions. While the powers under Section
438 Cr.P.C. are available to the High Court
or to the Court of Sessions only. It does not
stand to reason to assume that powers
under Section 438 Cr.P.C. shall be
exercisable by Children Court (or shall be
exercisable by the Sessions Court) in
relation to children in conflict with law just
because the Section 438 Cr.P.C. mentions
Sessions Court. If such an interpretation is
done, it shall disturb the whole of the
scheme of the ''Courts' in Juvenile Justice
Act, 2015.
586 INDIAN LAW REPORTS ALLAHABAD SERIES

14.(i). It may further be noted that
while an adult can ordinarily be arrested for
every offence which is cognizable by the
police but in case of child in conflict with
law,
he
cannot
ordinarily
be
apprehended/arrested in a cognizable cases.
It will be the narrowest interpretation
possible to say that legislature replaced the
word ''arrest' with ''apprehension' merely to
sound child friendly. This replacement is
purposeful in line with the objectives of the
Act.

14(ii). The reasons/grounds enabling
arrest of child offender as provided in
Juvenile Justice Act, 2015 are qualitatively
different from reasons/grounds of arrest of
adults and a paradigm shift is quite
discernible. It may simultaneously be noted
that there is an express bar against
registration of even an FIR except where the
case is of heinous nature or where it is alleged
to have been committed jointly with adults.
Rule 8 of the Juvenile Justice (Care and
Protection) Model Rules, 2016 speaks of
registration of FIR and also of apprehension:-

"8. Pre-Production action of
Police and other Agencies.- (1) No First
Information Report shall beregistered
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)......

(3)......

(4)......

(5)......

(6)......

(7).......

(8)......

(9)......

14(iii).

The
reasons/cause
of
arrest/apprehension may not have much to
do with the nature of the offence. The line
of
difference
maintained
between
cognizable and non-cognizable offence is
some what blurred in case of juveniles.
He/she can only be apprehended (arrested)
where offence is heinous in nature or where
such a step is necessary for best interest of
the child. The proviso to Section 8(1)
thereafter
adds
a
provision
about
apprehension in petty offences and serious
offences. There is clear implication that
power of apprehension is to be exercised in
suitable cases only irrespective of its
congnizability and rather it shall depend on
other considerations. And in my view if we
try to induct this provisions of Section 438
Cr.P.C. in the scheme of things, it will be
3 All. X Juvenile Vs. State of U.P. & Anr.
587
akin to forgetting correct path before
reaching the destination.

15(i). An FIR cannot be registered
where offence fell in the category of petty
or serious offence. Here no distinction has
been maintained on the lines as provided in
Cr.P.C. The provisions do not say that FIR
can be registered if the offence is
cognizable. Moreover as discussed earlier a
child allegedly in conflict with law cannot
be apprehended unless it is in the best
interest of the child or in a cases of heinous
offence. He cannot ordinarily be legally
apprehended in a case of petty and serious
offence.

15(ii).

Where
the
powers
of
apprehension are legally exercisable, the
child is to be placed under the charge of the
Special Juvenile Police Unit or the Child
Welfare Police Officer. In no case the child
can be lodged in a police lockup. Even before
production of the child before the Board, if
required, he shall be kept in an observation
home not in a lockup. He cannot be handcuffed, chained or otherwise fettered. Even
the Child Welfare Police Officer is required
to be in plain clothes and not in uniform.

15(iii). All the provisions referred to
above clearly point out that though there is
some commonality between the term arrest
and apprehension, however a milder term of
apprehension has been preferred over the
other to clinch the idea behind enactment of
this special law and to bring home the
essential difference with the term arrest in the
sense used in other statutes. To summarise
ordinary implications of an ''arrest' are
missing. The custody of a juvenile is not
punitive in nature and is a protective one.

15(iv). Rule 9 of the Model Rules,
2016 becomes applicable only when a child
in conflict with law is apprehended. When
such apprehended child is produced before
the Board, the Board may send him to an
observation home or a place of safety or a
fit facility or a fit person. He cannot be sent
to jail.

16. After noting down the above
provision, I come back to Section 12 of the
Juvenile Justice Act, 2015. (It has been
reproduced in Para-10).

As is very clear from the
language of Section 12 that no distinction
has been maintained for applicability of
provisions of bail on the lines as has been
maintained under the provision of Section
436 to 439 of Cr.P.C.; Section 12 of the
Juvenile Justice Act, 2015 is equally
applicable to bailable and non-bailable
offences. Secondly, this provision of law
speaks of three situations which are as
below:-

(i) where a child allegedly in
conflict with law is apprehended and
detained by the police;

(ii) where he appears (definitely
such a situations arises when he is not
apprehended and the information is sent
to his/her guardian for appearing before
the Board as per proviso to Rule 8(1) of
the Model Rules, 2016); and

(iii) when he brought before the
Board (that situation arises when he has
been put in charge of the Child Welfare
Police Officer or the Special Juvenile
Police Unit).

Section 12 again uses phrase in
middle of sub-section (1) which says that
''Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 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. The natural and
588 INDIAN LAW REPORTS ALLAHABAD SERIES
literal meaning of this provision indicate
that notwithstanding with the category of
offences for which the child in conflict with
law has been produced or brought before or
appeared before the Board, he may be
released on bail or he may not be so
released and placed under the supervision
of a probationary officer or under the care
of any fit person. When he is not being
released, he can only be kept in an
observation home or a place of safety. The
provisions
as
discussed
above
are
fundamentally different from the provisions
of bail under Cr.P.C. The apprehension of
arrest which is a necessary pre-requisite
for applicability of Section 438 Cr.P.C. is
altogether out of place in cases of
juveniles. In my view the word "arrest" is
not
replaceable
by
the
word
"apprehension" in the sense used under the
provisions of the Juvenile Justice Act.

17. In my firm view, a distinct and
special procedure with regard to a child
offender has been put in place in the
Juvenile Justice Act, 2015 so as to
comprehensively deal with all the aspects
which may arise where a criminal case,
whether initiated by filing of FIR or not
begins. There are many indicators which
rule out forming of a view or an opinion
that provisions of anticipatory bail shall
apply to protect the liberty of a juvenile.
The Act has a scheme which deals with
such juveniles at pre-production and postproduction stages. Some of the points
have already been dealt with and some
more points can be added. The factors
which
ought
to
be
taken
into
consideration while dealing with the
release of a child on bail, expressly
include the likelihood of his coming into
association
with
known
criminals,
likelihood of his exposure to physical,
moral
or
psychological
danger
or
otherwise defeating the ends of justice.
Above factors are enough to deduce that
the provisions of Section 12 have been
enacted keeping in mind the best interest
of a child. It may be noted that there may
be circumstances where keeping a child
in a child care institution may be the best
option to serve the best interest of a child,
a principle which finds place in the
opening of this Act under Section 3.
Chapter II of Section 3 enumerates 16
principles which are necessarily to be
kept in mind by the Central Government
or the State Government and other
agencies, as the case may be including
the
Board
while
implementing
the
provisions of this Act. These principles,
very importantly include the principle of
safety which says that all measures shall
be taken to ensure that the child is safe
and is not subjected to any harm, abuse or
maltreatment while in contact with the
care
and
protection
system,
and
thereafter.
In
my
view,
a
holistic
machinery of law has been put in place to
deal with the child in conflict with law.
By implication, such gaps, if any, need to
be excluded where a child can be dealt
with under regular law of procedure. In
case, the provisions of Section 438
Cr.P.C. are allowed to hold field in the
matters of juvenile, the aim and object of
the
Act
shall
be
defeated.
The
interpretation of law cannot be devised in
a way, so as to put a hurdle in the broader
and solemn aim which is sought to be
achieved by this enactment.

18. The applicant, while stressing the
point of maintainability of this anticipatory
bail application has placed before me, the
judgment of High Court of Bombay,
Aurangabad Bench given in Raman and
Others vs. State of Maharashtra and
Another; 2022 SCC OnLine Bom 1470 in
3 All. Rahees Vs. State of U.P.
589
which the question of maintainability was
considered and was answered by the
Division Bench as below:-

"A ''child' and a "child in
conflict with law" as defined under the
Juvenile Justice (Care and Protection of
Children)
Act,
2015
can
file
an
application under Section 438 of the Code
of Criminal Procedure, 1973."

19. In view of the discussion above, I
respectfully disagree with the opinion of
High Court of Bombay. My opinion finds
ample support from the judgment of
Allahabad High Court in Shahaab Ali and
Another vs. State of U.P.; 2020 (2) ADJ
130. I am of the firm view that the Juvenile
Justice Act is a comprehensive legislation
containing all provisions with regard to
children in conflict with law and that the
provisions of Section 438 Cr.P.C. have no
application
being
extraneous
and
incompatible with the scheme as well as
aim and objective sought to be achieved by
the Act.

20. The anticipatory bail application
is dismissed as not maintainable.
----------
(2023) 3 ILRA 589
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Misc. Anticipatory Bail Application (U/S 438
Cr.P.C.) No. 12334 of 2022

Rahees ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Vidit Narayan Mishra

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 438 - Indian
Penal Code-1860-Sections 380, 427 &
457-application-rejection-Rs. 17 lac was
looted from the ATM-applicant's name is
disclosed in the confessional statementthough a confession or a statement given
by co-accused may not pass the test of
credible evidence during trial but it
definitely plays a very important role as
far as investigation is concerned-Hence,
Pre-arrest bail to the applicant shall not
only
hamper
proper
and
effective
investigation
but
may
play
role
in
defending
the
real
culprits-More
so,
probability of recovery of rest of the
amount
is
also
ruled
out
in
case
anticipatory bail application is grantedPower u/s 438 Cr.P.C. cannot be utilized
in a routine manner as a substitute for
regular bail.(Para 1 to 8)

The bail application is rejected. (E-6)

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Vidit Narayan Mishra,
learned counsel for the applicant, Sri O.P.
Mishra, learned AGA for the State and
perused the papers on record.

2. The present application has been
moved seeking anticipatory bail in Case
Crime no.255 of 2021, under Sections 380,
427 and 457 I.P.C., P.S.Dankaur, District
Gautam Budh Nagar.

3. As per prosecution case, an A.T.M.
of Punjab National Bank standing at
Bilaspur was ripped open by gas a cutter, in
the night between 13.07.2021/14.07.2021
and cash was stolen from there. On the