HC: Child accused of an offence has right to seek pre-arrest bail

Prayagraj:The Allahabad high court has held that a child accused of an offence (child in conflict with the law) has an equal and efficacious right to seek the remedy of anticipatory bail (pre-arrest bail) under section 438 of the Criminal Procedure Code (CrPC) like any other citizen but with the restrictions imposed in it.
While answering a reference made by a single judge, a division bench comprising Chief Justice Pritinker Diwaker and Justice Samit Gopal further held that the Juvenile Justice Act does not exclude the application of anticipatory bail to a child in conflict with the law after the FIR is registered against him as there is no provision contrary in the Juvenile Justice Act 2015 to the CrPC to make it inapplicable.
“A juvenile or a child in conflict with law cannot be left remedy-less till the time of his arrest or apprehension of arrest. Hence, he can explore the remedy of anticipatory bail if a need arises,” the division bench in its judgement dated May 24 held.
“The Juvenile Justice Act does not, in any manner, bars the power of the court to grant anticipatory bail. The exclusion of access to anticipatory bail as a remedy impinges upon human liberty. A child enjoys equal rights with other persons. Therefore, it would be in violation of all the principles and provisions to deny an opportunity to exercise the right of preferring an application for anticipatory bail,” the court said.
Further, the court discarded the argument that since the Juvenile Justice Act 2015 does not make provision in the nature of anticipatory bail and that it is a complete code in itself, therefore, an anticipatory bail cannot be granted to a juvenile.
A reference was made before the present division bench as in the case of Shahaab Ali (minor) and another vs. state of UP, it was held by single judge that a petition for anticipatory bail at the behest of a child in conflict with the law would not be maintainable. It is so because the police cannot apprehend the applicant and there is a procedure prescribed by sections 10 and 12 of the Juvenile Justice Act that will have to be necessarily followed and as such, apprehension of arrest is misconceived. On the other hand, in the present case of Mohammad Zaid, a single judge bench observed that anticipatory bail can very well be granted to a juvenile and the same shall continue till an inquiry is conducted by the board regarding a child in conflict with the law as provided under section 14 and 15 of the Act of 2015.
Finally, the division bench decided the reference (Mohammad Zaid Vs state of UP) and other cases with the above mentioned opinion.