Anticipatory Bail invalid under Sec.438 of CRPC for Juveniles

In the case of Mohammad Bin Ziyad v State of Telangana, the court held that Anticipatory Bail Application by juvenile under Section 438 of Criminal Procedure Code is not maintainable. A writ petition was filed in the Telangana High Court to declare the action of respondents for not releasing the petitioner on bail in the event of his arrest as illegal and contrary to Section 12 of the Juvenile Justice Act, 2015 (JJ Act, 2015).Referring to the said objections, Mr. M.A. Mujeeb, learned counsel for the petitioner submitted that writ petition is maintainable as the JJ Act, 2015 is silent with regard to anticipatory bail. He placed reliance on the principle laid down in KishanKumar v. State ofHaryana for his contention.The counsel for the respondent addressed this issue by stating that there is no provision in the JJ Act, 2015 to grant anticipatory bail to a juvenile. The provisions of JJ Act, 2015 are more liberal than CrPC with regards to granting bail and therefore the petitioner has to avail remedy under Section 12 of the JJ Act, 2015.Section 12 of the JJ Act, 2015 deals with bail to a juvenile. Sections 437 and 439 of Cr.P.C. and Sections 8, 10 and 12 of the JJ Act, 2015 would prima facie support the view that power in respect of grant of bail to a juvenile is more liberal in the nature of command under Section 12 (1) of the JJ Act, 2015.The objects and reasons of the JJ Act, 2015 are “…and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration”. The provisions of the Constitution confer powers and impose duties on the citizens under Articles – 15 (3), 39 (e), 45 and 47 on the State to ensure that all of the needs of children are met and that their basic human rights are fully protected.The Court stated that “Section 12 of the JJ Act, 2015 provides for overriding effect due to use of non-obstante clause, therefore, the post arrest bail of juvenile in conflict with law is required to be dealt with under the special provision contained in Section 12 of the Act of 2015 and would exclude operation of Section 437 or Section 439 of Cr.P.C.”The Court relied on the judgement in K. Vignesh v. State wherein it was held that an application seeking anticipatory bail under Section 438 of Cr.P.C. at the instance of a child in conflict with law is not maintainable. Similarly a direction to the Juvenile Justice Board to release the child in conflict with law cannot be issued by the High Court in exercise of its inherent power saved under Section 482 of Cr.P.C.”The writ petition was dismissed.

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