By Shantanu Pachauri
A constitutional bench of the Supreme Court in Gurubakash Singh Sibbia v. State of Panjab (1980) while distinguishing normal bail from anticipatory bail held that while the former is granted after an arrest, releasing a person from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. The Court laid down certain guidelines in light of the conditions under Section 438 of the Code of Criminal Procedure, 1973 (‘the Code’).
Although the position of law with regard to anticipatory bail, in general, is a settled one, the position regarding its applicability in case of juveniles or children in conflict with law is in a state of flux. Due to the absence of an authoritative pronouncement by the Supreme Court on the issue, different benches of various High Courts have taken conflicting views and supported them with their own reasoning. As a result, there is an inconsistency in the interpretation of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘the Act’ or ‘the JJ Act’ alternatively) vis-à-vis section 438 of the Code. The issue has not drawn much attention and even the Law Commission of India has failed to mention it in its comprehensive report on anticipatory bail. This blog-post attempts to examine the position taken by different benches of various High Courts regarding the maintainability of a petition for an anticipatory bail in case of juveniles in light of the principles of statutory interpretation.
Literal Approach
The foremost argument against the maintainability of an anticipatory bail petition in case of juveniles is that as Section 12 of the JJ Act provides for a non-obstante clause which excludes the application of the provisions of the Code, Section 438 would not be applicable in case of juveniles. This argument was accepted by the division bench of the Calcutta High Court in In Re: Krishna Garai (2016). The court, while rejecting the application for anticipatory bail, held that the Juvenile Justice (Care and Protection of Children) Act, 2000 (‘the 2000 Act’) (now repealed) is a special Act which would prevail over the Code. While dealing with the applicability of sections 437 and 439 of the Code in case of a juvenile, a division bench of the Chhattisgarh High Court in Tejram Nagrachi v. State of Chhattisgarh (2019) held that the grant of bail to a juvenile is required to be dealt with under section 12 of the JJ Act and not under sections 437 or 439 of the Code. It was held that the jurisdiction under Section 439 of the Code is excluded by the use of the non- obstante clause in Section 12(1) of the JJ Act. The Court opined that under the statutory scheme of the JJ Act, a comprehensive provision has been made as to how a child in conflict with the law has to be dealt with when he is apprehended and not released on bail.
With regard to the jurisdiction of the Juvenile Justice Board (‘the JJ Board’), a single judge bench of the Madhya Pradesh High Court in the case of Kapil Durgawani v. State of Madhya Pradesh (2010), held that as Section 12 of the 2000 Act does not provide power to the JJ Board which is equivalent to Section 438 of the Code, the Board has no jurisdiction to entertain the application of anticipatory bail filed by a juvenile. The position was reiterated by another single judge bench of the Court in Sandeep Singh Tomar v. State of M.P. (2019). In Preetam Pathak v. State of Chhattisgarh (2014) a single-judge bench of the Chhattisgarh High Court had also taken a similar approach. It has also been argued that even the High Courts and Court of Sessions do not have jurisdiction to entertain such applications. In Satendra Sharma v. State of Madhya Pradesh (2014), a single-judge bench of the Madhya Pradesh High Court while rejecting the application held that the powers conferred on the JJ Board can only be used by a High Court or Court of Sessions when the proceedings have come before them in appeal, revision or otherwise except under sections 438 and 439 of the Code.
It has been argued that without an enabling provision, the relief of anticipatory bail should not be granted. In Kamlesh Gurjar v. The State of Madhya Pradesh (2019), a single-judge bench of the Madhya Pradesh High Court held that there is no provision either in the JJ Act or in the Code which enables the juvenile to move an application for anticipatory bail either before the Court of Sessions or High Court or even before the JJ Board. It was held that in the absence of any specific provisions in the JJ Act, a juvenile is not entitled to move an application under Section 438 of the Code. In Preetam Pathak, the Chhattisgarh High Court bench while rejecting anticipatory bail under Section 438 of the Code held that a juvenile is not entitled to maintain an application for grant of such bail and should rather move an appropriate application under Section 12 of the 2000 Act.
Another argument against the application of anticipatory bail is that the provisions of the JJ Act do not envisage arrest of the children in conflict with the law. The Parliament has deliberately used the term apprehend instead of arrest. As the prerequisite of apprehension of ‘arrest’ under Section 438 does not exist, the power under the provision cannot be exercised by a High Court or a Court of Session in granting anticipatory bail to a juvenile. Justice Nagamuthu of the Madras High Court in K. Vignesh v. State (2017) argued in a similar way and noted that the intention of the Parliament was not to empower a police officer to arrest a child in conflict with the law rather only to apprehend them under the JJ Act. The Court held that there cannot be any fear of arrest in the case of a child in conflict with the law and this legal position obviates the need for them to seek anticipatory bail.
Purposive Approach
With regard to the interpretation of the provisions of the JJ Act generally and Section 12 of the Act particularly, it is an established principle in law that in case of conflict or inconsistency between general legislation and special legislation, the provisions of special law prevail to the extent of that inconsistency.[i][Emphasis supplied] However, where there is no inconsistency and the general legislation provides something which is not prescribed by the special legislation, the provisions of general legislation would prevail. This argument was accepted by Justice Yashwant Varma of the High Court of Allahabad in a recent judgment in Shahaab Ali and Ors. v. State of U.P. (2020) where it was observed that the provisions of the Code may apply and operate in areas where the JJ Act is either silent or constructs no special or distinct measure. It was held that the non-obstante clause in Section 12 is only indicative of the JJ Board being conferred the power to grant bail notwithstanding any restraint or fetter that may be found in that regard in the Code. A special fast track court at Tis Hazari, Delhi also followed this approach in the case of X (Minor) through his mother v. The State (2020). The Court held that there is no exclusion of granting the benefit of anticipatory bail to a child in conflict with the law as the said benefit under section 438 of the Code is available to “any person”. The same reasoning was given by a single-judge bench of the Kerala High Court in Gopakumar v. State of Kerala (2012). The Court while appreciating the objectives and the purpose of the JJ Act emphasised that a court has a duty to see that the rights of a child in conflict with law are not in any way impaired. It was held that a juvenile apprehending arrest will be entitled to seek the discretionary relief of pre-arrest bail envisaged under section 438 of the Code as the provision takes within its ambit “any person” to seek such relief. Also, while interpreting the scope of Section 12 of the JJ Act, two benches of the Chhattisgarh High Court in Mohan (In Jail) v. State of Chhattisgarh (2005) and in Subhash Kumar @ Sonu v. State of Chhattisgarh (2014)[ii] held that despite the provisions contained in Section 12 of the Act, the bail application under Section 439 of the Code is maintainable before the Sessions Court and the High Court.
The Allahabad High Court in Shahaab Ali also clarified that the words “arrest” and “apprehend” can possibly be used as substitutes of each other and convey an identical meaning. It was held that Section 438 of the Code will apply at the stage before the registration of First Information Report (‘FIR’) and it is within this narrow confine that the right to invoke the jurisdiction of the Court of Sessions or the High Court to grant anticipatory bail to juvenile must be recognised to exist and preserved. After the registration of an FIR, Section 438 stands impliedly excluded and only Section 10 (which provides for the apprehension of juvenile) and Section 12 of the JJ Act would operate.
Suggestions and Conclusion
In the first approach, different benches of High Courts of Chhattisgarh and Madhya Pradesh while arguing against the grant of anticipatory bail to the juveniles relied on the strict and literal interpretation of the provisions of the JJ Act. They have erroneously held that since the JJ Act is special legislation, none of the provisions of the Code would be applicable. On this point, the ruling of the Allahabad High Court in Shahaab Ali which prescribes the application of provisions of the Code on the issues on which the JJ Act is either silent or provides no special measure is in consonance with the principles of statutory interpretation.
The benches adopting the second approach resorted to the purposive interpretation of the provisions of the JJ Act and of Section 438 of the Code. They appreciated the purpose of Section 438 which was to recognize the importance of personal liberty and freedom in a free and democratic country. They acknowledged the legislative intent and the age-old principle that an individual is presumed to be innocent till he is found guilty by the court. As the JJ Act is a beneficial and remedial legislation, such a rights-based approach is in the welfare of the children in conflict with the law. The courts emphasised the duty of a court to ensure that the rights of juveniles do not get violated. Excluding a complete category of persons from the ambit of such a relief when the provision expressly allows “all persons”, has far-reaching consequences. It would violate the spirit of the JJ Act and would defeat the purpose for which provision of anticipatory bail was enacted. The Supreme Court should intervene and conclusively settle the position of law as it greatly impacts the liberty and well- being of such children. The beneficent JJ Act would not be able to achieve its full potential if children do not get the relief of anticipatory bail due to technicalities in the procedural law.
[The author is an LL.M. Candidate (Constitutional law and Criminal law) at National Law University, Delhi and a Research Intern at Committee for Reforms in Criminal Law.]
[i] G.P. Singh, Principles of Statutory Interpretation(14th ed. 2015).
[ii] Subhash Kumar @ Sonu v. State of Chhattisgarh, MCrC No. 5651/2014, order dated 28.11.2014.
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