DATE OF THE ORDER:
9th June 2021
Mr Justice A.Y. Kogje
Kureshi Irfan Hasambhai Thro Kureshiv Kalubhaiv Hasambhai (Petitioner)
State of Gujarat (Respondent)
The issue raised before the court was whether an application for anticipatory bail under Section 438 CrPC can be maintained by a child in conflict with law more particularly considering the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.
- An application was filed for an anticipatory bail in connection with FIR registered for the offence under Sections 143, 147, 148, 149, 152, 153, 224, 225, 186, 332, 353, 395, 397, 427 and 504 of the IPC, under Section 135 of the GP Act and Section 12 of the Gambling Act.
- The application is made on behalf of the alleged accused's 17-year-old brother, who believes he may be wrongfully involved.
- The applicant, who is not named as an accused in the FIR, is concerned that during an investigation the accused No.1 will falsely implicate him in the crime because the applicant has a previous conflict with accused No.1 named in the FIR over a pet dog, and the said accused No.1 will try to get the applicant charged.
- It was stated that the applicant provided video footage of the entire incident to the Investigating Officer as well as the Sessions Court, in which no role of the applicant was revealed.
- The counsel for petitioner giving reference to Birbal Munda and others v/s. The state of Jharkhand submitted that the Jharkhand High Court had taken into consideration all the aspects including relevant definitions and provisions of the Juvenile Justice Act and concluded that the application for anticipatory bail is maintainable.
- In response, the learned Additional Public Prosecutor had objected to the issuance of the application, claiming that the provisions of the Act, do not provide for the implementation of an arrest, and thus, the requirement of an arrest for invoking Section 438 CrPC does not apply.
- Section 438 CrPC- Direction for grant of bail to person apprehending arrest.
- Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015- Bail of juvenile.
ANALYSIS OF THE ORDER
- The court taking the reference of Suriya v/s. The state of Tamilnadu observed that rejection of any bail application by the juvenile by High Court would render the juvenile remediless.
- The court stated that a necessary procedure to be adopted as provided under section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015so that 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.
- The court addressed the issue raised stating that there is no expressed bar of application of Section 438 CrPC to the children in conflict with law covered by the Juvenile Justice (Care and Protection of Children) Act, 2015. The parameters of application cannot be used to infer a bar on the application of a provision.
- The Court also took into account the fact that the other accused identified in the FIR had previously been released on normal bail. The applicant, who is not mentioned in the FIR, has no records, deserves to be released on anticipatory bail.
- The application was granted, the applicant was released on bail under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
- The court ordered the following direction before granting anticipatory bail:
i. The applicant shall be present at the concerned Board between 11 a.m. and 2 p.m. on June 14, 2021
ii. He shall not, directly or indirectly, make any inducement, threat, or promise to any person familiar with the facts of the case in order to prevent that person from disclosing those facts to the court or any police officer
iii. He shall not obstruct or hamper the police investigation, and shall not cause problems with the evidence collected or yet to be collected by the police
iv. Be subject to the conditions imposed by the Board in accordance with the legislation;
- The court also stated that the prima facie observations made by this Court before releasing the applicant on bail shall not influence the Trial Court throughout the trial.
The court by giving purposive interpretation recognized the importance of personal liberty and freedom in a free and democratic country, which was the objective of Section 438. They recognised the legislative aim as well as the age-old concept that a person is deemed innocent until proven guilty by a court. Because the Juvenile Justice (Care and Protection of Children) Act, 2015 is both beneficial and remedial, a rights-based approach is in the best interests of children who are in dispute with the law. The court emphasized that it is the court's responsibility to guarantee that juveniles' rights are not violated.
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