There is no expressed bar of application of Section 438 of the Code to the children in conflict with law covered by the Act, 2015 and in absence of expressed bar of application of Section 438 of the Code, there is no reason to imply such bar more particularly in the facts of the present case where the juvenile applicant is not even named as an accused and has raised an apprehension for being impleaded on extraneous consideration. The judgment was passed by The High Court of Gujarat in the case of Kureshi Irfan Hasambhai v. State of Gujarat [R/Criminal Misc. Application No. 6978 of 2021] by a Single Bench consisting of Hon’ble Justice A.Y. Kogje.
The issue before the Court was whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure can be maintained by the child in conflict with law more particularly considering the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Learned Counsel for the applicant submitted that the applicant is not involved in the offence and therefore also, the complainant has not named him in the offence however apprehension of arrest has arisen due to a previous incident which occurred between the accused regarding pet dog for which in the present offence accused and other co-accused named in the FIR are likely to name the present applicant as an accused in the offence during the investigation; thereby falsely implicating the applicant in the offence.
Learned Counsel for the respondent, it was stated that the language of Section 438 of the Code which is required to be read with Sections 10 and 12 of the Act, 2015. Furthermore, it was argued that for maintaining application under Section 438 of the Code there has to be an apprehension of the arrest of a person, whereas provisions of Section 10 of the Act, 2015 provides for in no case, a child alleged to conflict with the law shall be placed in a police lockup or lodged in jail and as in case of a child in conflict with the law there is a complete bar for placing the child in a police lockup or to be lodged in jail.
While allowing the application the court opined that “any child in conflict with the law, a necessary procedure to be adopted as prescribed under Section 12 of the Act, 2015 and therefore, even where the application under Section 438 of the Code is decided in any which way, the protection of Section 12 of the Act, 2015 will always be available.”
Furthermore, the court observed that “apprehension used in Section 10 of the Act, 2015 at par with and synonyms to arrest used in Section 438 of the Code. Therefore, though methods different Acts are provided for to deal with juvenile/child in conflict with the law, still the methodology provided for apprehending the child in conflict with law curtails the liberty of such child and is subjected to various stages as provided particularly in Sections 10 and 12 of the Act, 2015. The Court of is the opinion that the languages of the relevant Sections of the Act, 2015 do not carve out a complete bar or the right of an individual under Section 438 of the Code and by implication takes out the child in conflict with the law from the purview of Section 438 of the Code.”
