Preetam Pathak Vs. State of Chhattisgarh - Court Judgment

1. The short question falling for consideration is whether applicant/juvenile can maintain application for grant of anticipatory bail under Section 438 of Cr.P.C.

2. Invoking jurisdiction of this court under Section 438 of Cr.P.C., the applicant herein has  filed this application for grant of anticipatory bail as he is apprehending his arrest in connection with Crime No.195/2014 registered at Police Station, Baikunthpur, District Korea, for the offence punishable under Section 376 of IPC and Section 4 of Protection of Children from Sexual Offences Act.

3. At the outset, learned counsel appearing for the State would submit that applicant herein is admittedly a juvenile within the meaning of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, the Act, 2000), and therefore, the provisions contained in Section 438 of Cr.P.C. would not be applicable in the present case and remedy available to the applicant would be to appear before the Juvenile Justice Board (for short, the Board) and to claim bail under Section 12 of the Act, 2000, and as such, application under Section 438 of Cr.P.C. preferred by the juvenile/applicant deserves to be rejected.

4. Replying the contention so made, learned counsel appearing for the applicant would submit that in view of provisions contained in Section 12 of the Act, 2000, the applicant has right to get benefit of anticipatory bail because he has been falsely implicated in the case and by virtue of Section 6(2) of the Act, 2000, the powers conferred on the Board by or under this Act may also be exercised by the High Court and the court of Session also.

5. In order to consider the point raised at the bar, it would be proper to notice Section 6(1) and 6(2) of the Act, 2000, which reads as under :

“6. Powers of Juvenile Justice Board.­

1. Where a Board has been constituted for any district, such Board shall, notwithstanding anything contained in  any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law.

2.The powers conferred on the Board by or under this Act may also be exercised by the High Court and the court of Session, when the proceedings comes before them in appeal, revision or otherwise.”

6. A plain and careful perusal of Section 6(2) of the Act, 2000, would show that the powers conferred on the Board by or under this Act may also be exercised by the High Court when the proceedings comes before them in appeal, revision or otherwise. At this stage, it would be proper to notice the provisions of bail for juvenile as contained in Section 12 of the Act, which reads as under :

“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 or 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 this released 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 sub­section (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 inquiry regarding him as may be specified in the order.”

7. A close and careful perusal of Section 12 of the Act, 2000 would show that an application for bail of juvenile would be entertainable by the Board only if he is arrested and brought before the Board where he is accused of bailable or nonbailable offences and the condition precedent to  the juvenile would be, he is arrested or detained or appears or is brought before a Board, then only his application filed under Section 12 of the Act, 2000 shall be decided by the Board. Apart from Section 12 of the Act, 2000, there is no other provisions in the Act, 2000 like Section 438 of Cr.P.C. giving powers to the Board to grant anticipatory bail to the juvenile and thus, power and jurisdiction to grant anticipatory bail has not been conferred to the juvenile Justice Board, and therefore, the provisions contained in Section 438 of Cr.P.C. cannot be exercised by this court or court of session to grant anticipatory bail to the juvenile by virtue of provisions contained in Section 6(2) of the Act, 2000.

8. The aforesaid question came to be considered before the High Court of Madhya Pradesh in case of Kapil Durgawani v. State of Madhya Pradesh (2010 (IV) MPJR 155), in which, after consideration it has been held that provisions of Section 12 of the Act, 2000 do not provide such power to the Board which is equivalent to Section 438 of Cr.P.C.and the Board has no jurisdiction to entertain application under Section 438 of Cr.P.C. by holding as under:

“Provisions of Section 12 of the Act, 2000, do not provide such powers to the Board which is equivalent to Section 438 of Cr.P.C. The Board has no jurisdiction to entertain application under Section 438 of Cr.P.C.”

9. Again similar proposition has been re­iterated by the MP High Court in case of Sandeep Singh Tomar v. State of M.P. (2014(IV) MPJR 496)

10. I am in respectful agreement with the view taken by the High Court of Madhya Pradesh in Kapil Durgawani (Supra) and Sandeep Singh Tomar (Supra), and in the considered opinion of this court juvenile is not entitled to maintain application under Section 438 of Cr.P.C. in absence of specific provisions in the Act, 2000.

11. Accordingly, the application filed Section 438 of Cr.P.C. for anticipatory bail is dismissed as not maintainable in law. However, the applicant is at liberty to appear before the Board and to move appropriate application under Section 12 of the Act, 2000.

12. Before parting with the matter, I also wish to record my thanks to Shri S.C. Verma, Advocate, who appeared at my request as an amicus­curiae and assisted the Court with his arguments.