JUDGMENT : 1. The present application has been filed seeking bail under the provisions of Section 438 of the Code of Criminal Procedure, 1973 (for short “the Code”) in connection with the FIR being C.R. No.11205031210736 of 2021 registered with Mandvi Police Station, District Kachchh for the offence punishable under Sections 306, 498A, 323 and 114 of the Indian Penal Code, 1860 (for short “the IPC”). 2. The case of the prosecution in brief is that the present applicant, who is a minor, is responsible for instigating and abating the suicide committed by the daughter of the deceased, since the applicant was having love affair with the husband of the deceased. 3. Learned advocate Mr.J.M.Nayak appearing for the applicant has submitted that the applicant is a student and 17 years of age and being a juvenile, her case is governed by the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short “the Act”). It is submitted that in fact looking to the role of the applicant, the offence under Section 306 of the IPC is not established as she being a minor is not responsible for instigating or abating the deceased to commit suicide. It is submitted that the F.I.R is registered after two days of committing suicide. 4. Learned APP at the outset has questioned the maintainability of the present application. She has submitted that the application seeking anticipatory bail under Section 438 of the Code is not maintainable since there is no provision in the law to arrest a juvenile or a minor. In support of her submissions, she has placed reliance on the recent decision dated 21.06.2021 passed in Writ Petition No.12411 of 2021 of the Telangana High Court in case of Mr.Mohammed Bin Ziyad vs. The State of Telangana. She has submitted that the Telangana High Court has considered the judgment of this Court rendered in the case of Kureshi Irfan Hasambhai vs. State of Gujarat, dated 09.06.2021 passed in Criminal Misc. Application No.6978 of 2021, where this Hon’ble Court has held that an application under section 438 of the Code filed by a minor is maintainable. She has submitted that a conflicting view has been taken by the Talangana High Court. Application No.6978 of 2021, where this Hon’ble Court has held that an application under section 438 of the Code filed by a minor is maintainable. She has submitted that a conflicting view has been taken by the Talangana High Court. She has also referred to the judgment of the Division Bench of Madras High Court dated 27.04.2017, in the case of K. Vignesh vs. State, (2017) SCC online Madras 28442. It is submitted by her that since the legislature has consciously decided not to arrest a child in conflict with law, the present application seeking bail under the provisions of Section 438 of the Code is not maintainable. Learned APP has also placed reliance on the decision of the Punjab and Haryana High Court, dated 05.07.2021 passed in CRM-M-21406-2021 in the case of Piyush minor through his natural mother Smt. Nirmala Devi w/o Sh. Narender vs. State of Haryana. Thus, she has submitted that the decisions of both the High Courts are subsequent to the decision of this Court, holding that an application under the provisions of Section 438 of the Code is not maintainable. She has submitted that the Act does not provide any provision with regard to granting of anticipatory bail and hence, the present application may be rejected. 5. In response to the aforesaid submissions, learned advocate Mr.Nayak for the applicant has submitted that this Court, while examining various provisions of the Act this Court in the case of Kureshi Irfan Hasambhai (supra) has held that the application seeking anticipatory bail under the provisions of Section 438 of the Code is maintainable. 6. I have considered the rival submissions advanced by the learned advocates appearing for the respective parties. The judgements cited at the bar are also perused 7. As noticed hereinabove, there are conflicting decisions rendered by the Coordinate Bench of this Court in the case of Kureshi Irfan Hasambhai (supra) and in case of Mr.Mohammed Bin Ziyad (supra). The Telangana High Court, after considering the decision of this Court has opined that the bail under the provisions of Section 438 of the Code is not maintainable. The Telangana High Court, after considering the provisions of Sections 8, 10 and 12 of the Act, has disagreed with the principle laid down by this Court by placing reliance on judgement of the Division Bench of Madras High Court in the case of K. Vignesh (supra). 8. The Telangana High Court, after considering the provisions of Sections 8, 10 and 12 of the Act, has disagreed with the principle laid down by this Court by placing reliance on judgement of the Division Bench of Madras High Court in the case of K. Vignesh (supra). 8. Subsequently, the Punjab and Haryana High Court in the case of Piyush minor through his natural mother Smt. Nirmala Devi w/o Sh. Narender (supra) has placed reliance on the judgment of the Telangana High Court as well as the Division Bench of the Madras High Court and held that the application seeking bail under the provisions of Section 438 of the Code in case of juvenile is not maintainable. 9. The Division Bench of Madras High Court as well as the Telangana High Court, after considering the aforenoted provisions of the Act, has held that since the legislature would have very well used the expression ‘arrest’ instead of using the expression ‘apprehend’ in Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015, there would not be any question of filing bail application under Section 438 of the Code. It is further observed that the provisions of Section 10 of the Act makes it very clear that in no case a child alleged to be in conflict with law shall be placed in a police lock-up or lodged in a jail. The Board has been obligated to send the child either to an observation home or a place of safety. It is also observed that there are lot of other safeguards in the Act as well as in the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 to ensure that the child, so apprehended by a police or any other authority, shall not in any manner be disturbed emotionally, psychological or physically. It is further observed that even if a child is apprehended or detained, the child would be entitled for a bail, irrespective of whether the offence said to have been committed by him is bailable or non-bailable under the provisions of Section 12 of the Act. It is further observed that even if a child is apprehended or detained, the child would be entitled for a bail, irrespective of whether the offence said to have been committed by him is bailable or non-bailable under the provisions of Section 12 of the Act. The Telangana High Court, while following the decision of the Madras High Court and after referring to the statutory scheme of the Act, comprehensively in light of the various orders, which are placed reliance, has held that an application seeking bail under the provisions of Section 438 of the Code at the instance of child is not maintainable and the High Court in exercise of its inherent powers cannot grant anticipatory bail. 10. Section 10 of the Act, is reproduced hereinbelow:- “10. Apprehension of juvenile in conflict with law.—1 [(1) As soon as a juvenile in conflict with law is apprehended by police, he shall be placed under the charge of the special juvenile police unit or the designated police officer, who shall produce the juvenile before the Board without any loss of time but within a period of twenty-four hours of his apprehension excluding the time necessary for the journey, from the place where the juvenile was apprehended, to the Board: Provided that in no case, a juvenile in conflict with law shall be placed in a police lockup or lodged in a jail.] (2) The State Government may make rules consistent with this Act,— (i) to provide for persons through whom (including registered voluntary organisations) any juvenile in conflict with law may be produced before the Board; (ii) to provide the manner in which such juvenile may be sent to an observation home.” 11. The Coordinate Bench, while referring to the dictionary meaning of “apprehend”, has observed thus:- “[10] The word “apprehend” with reference to an offence is defined as under:- “Apprehend: To seize under process of law: to take into custody; make prisoner; arrest by legal warrant or authority. “ The word “apprehension” in Concise Law Dictionary, 1997 Edition reads as under:- “Apprehension (of a person) The seizing or taking hold of a man; the act of arresting or seizing under process of law; arrest; (as) the apprehension of criminals. “Apprehension”, may include detention.” However, for the purpose of this case, the word “Apprehend” is to mean “seize” or “Arrest”. “Apprehension”, may include detention.” However, for the purpose of this case, the word “Apprehend” is to mean “seize” or “Arrest”. [11] The word “arrest” though not defined in Criminal Procedure Code, purport could be gathered from Chapter-5 of CRPC. The word ‘arrest” in common parlance and as defined in various dictionaries would mean to deprive a person of his personal liberty to go anywhere he pleases. The word “arrest” in legal sense refers to a procedure connected with an offence to take into custody of another person under an authority of law for the purpose of holding or detaining him to answer a criminal charge or preventing commission of offence. The manner and method of arrest is also provided for under Chapter-5 of CRPC. Section 438 of the Code opens with the phrase “when any person has reason to believe that he may be arrested on accusation of having committed non-bailable offence….” 12. The Coordinate Bench of this Court has also considered the judgment of the Division Bench of the Madras High Court in the case of K. Vignesh (supra) and after considering the same, it is held that an application seeking anticipatory bail under the provisions of Section 438 of the Code is maintainable as the juvenile can be said to have been “arrested” by the police officer albeit the provisions stipulate of apprehending the juvenile. 13. Thus, there are two views expressed with regard to apprehension of a child under the provisions of Section 10 of the Act. The Division Bench of Madras High Court has opined that since the legislature has not used, the expression ‘arrest’ and has used expression “apprehension” in Sections 10 and 12 of the Act, the provisions of Section 438 of the Code cannot be invoked as the child is not “arrested” but “apprehended”. Heavy reliance is also placed on the powers of the Board and the safeguards provided in the Act for taking care of the juvenile when the child is apprehended. 14. In addition to the aforementioned observations made by the Coordinate Bench of this Court, I may hasten to add my observations with regard to the issue. I may not reiterate the observations expressed in the above mentioned decisions with regard to the benevolent intention of the legislature in promulgation of the Act, since the same is comprehensively recorded. 15. 14. In addition to the aforementioned observations made by the Coordinate Bench of this Court, I may hasten to add my observations with regard to the issue. I may not reiterate the observations expressed in the above mentioned decisions with regard to the benevolent intention of the legislature in promulgation of the Act, since the same is comprehensively recorded. 15. Since there is conflict on the view of maintainability of application under section 438 of the Code seeking anticipatory bail, I may with profit, at this stage, refer to the decision of Apex Court in the case of Km.Hema Mishra Versus State Of Uttar Pradesh, 2014 (4) SCC 453 . The Supreme Court while dealing with the issue of grant of relief against pre-arrest of a person in case the provision of section 438 of the Cr.P.C. is excluded has held thus: “27. It is for this reason, we are of the opinion that in appropriate cases the High Court is empowered to entertain the petition under Article 226 of the Constitution of India where the main relief itself is against arrest. Obviously, when provisions of Section 438 CrPC are not available to the accused persons in the State of Uttar Pradesh, under the normal circumstances such accused persons would not be entitled to claim such a relief under Article 226 of the Constitution. It cannot be converted into a second window for the relief which is consciously denied statutorily making it a case of casus omissus. At the same time, as rightly observed in para 21 extracted above, the High Court cannot be completely denuded of its powers under Article 226 of the Constitution, to grant such a relief in appropriate and deserving cases; albeit this power is to be exercised with extreme caution and sparingly in those cases where arrest of a person would lead to total miscarriage of justice. There may be cases where pre-arrest may be entirely unwarranted and lead to disastrous consequences. Whenever the High Court is convinced of such a situation, it would be appropriate to grant the relief against pre-arrest in such cases. What would be those cases will have to be left to the wisdom of the High Court. What is emphasised is that the High Court is not bereft of its powers to grant this relief under Article 226 of the Constitution. 34. What would be those cases will have to be left to the wisdom of the High Court. What is emphasised is that the High Court is not bereft of its powers to grant this relief under Article 226 of the Constitution. 34. It would be pertinent to mention here that in light of the abovementioned statements and cases, the High Court would not be incorrect or acting out of jurisdiction if it exercises its power under Article 226 to issue an appropriate writ or direction or order in exceptional cases at the behest of a person accused of an offence triable under the Act or offence jointly triable with the offences under the Act. 35. It is pertinent to mention that though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well-established principles, so much so that while entertaining writ petitions for granting interim protection from arrest, the Court would not go on to the extent of including the provision of anticipatory bail as a blanket provision. 36. Thus, such a power has to be exercised very cautiously keeping in view, at the same time, that the provisions of Article 226 are a device to advance justice and not to frustrate it. The powers are, therefore, to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons. In entertaining such a petition under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 CrPC proceedings, keeping in mind that when this provision is specifically omitted in the State of Uttar Pradesh, it cannot be resorted to as back door entry via Article 226. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 CrPC proceedings, keeping in mind that when this provision is specifically omitted in the State of Uttar Pradesh, it cannot be resorted to as back door entry via Article 226. On the other hand, wherever the High Court finds that in a given case if the protection against prearrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its power under Article 226 of the Constitution. It is again clarified that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified. 16. Thus, the Supreme Court has held that in case if the provision of Section 438 of the Code is not available to the accused, as was in the State of Uttar Pradesh, the High Court cannot be completely denuded of its powers under Article 226 of the Constitution, to grant such a relief in appropriate and deserving cases; albeit this power is to be exercised with extreme caution and sparingly in those cases where arrest of a person would lead to total miscarriage of justice. The Supreme Court has held that though it cannot be converted into a second window for the relief, which is consciously denied statutorily making it a case of casus omissus, but on the other hand, wherever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its power under Article 226 of the Constitution. Thus, a remedy under Article 226 of the constitution of India is available for an accused to seek relief against his prearrest. Thus, even if the Act does not provide any provision for anticipatory bail, it is always open for a juvenile to seek relief against his arrest by approaching the High Court directly without approaching the Trial Court. Thus, a remedy under Article 226 of the constitution of India is available for an accused to seek relief against his prearrest. Thus, even if the Act does not provide any provision for anticipatory bail, it is always open for a juvenile to seek relief against his arrest by approaching the High Court directly without approaching the Trial Court. In my opinion, it is also open for the High Court to convert the application filed under provision of section 438 of the Code to that under Article 226, if the circumstances so demand and if it is found that the liberty of a child is at stake. 17. In the case of child/juvenile as it is commonly understood that he or she is always under the care/company/ supervision of his parents or guardians, natural or legal. By the exercise of powers under section 10 of the Act, a juvenile is being “apprehended” by the police and would be separated from the company or guardianship of his elders, who are taking care of him or her. Such apprehension will have a physical as well as emotional impact on the child. The provisions of Section 10 of the Act refer to the police officers, who are designated under the Act, to apprehend such a juvenile, in case he or she is found to be involved in any offence. The very instant when a child is taken away or separated from his family or parents or a guardian, and is in supervision of the police officer, his or her movement or freedom gets restricted. Unquestionably, such an action can be termed as “detention” or “arrest”, though temporarily by the police officers, while exercising the powers under Section 10 of the Act. By such an exercise of powers, in fact, a child or a juvenile loses his freedom and he or she has to wait till he or she is produced before the concerned Board seeking regular bail. The Division Bench of Madras High Court and the Telangana High Court have heavily placed reliance on the provisions of section 12 of the Act which empowers the Board to release such juvenile on bail or to refer him to an observation homes. Thus, after a juvenile is apprehended by police and until he or she is produced before the Board, he or she loses his liberty and free will. Thus, after a juvenile is apprehended by police and until he or she is produced before the Board, he or she loses his liberty and free will. There is no provision under the Act which affords a relief to a juvenile from such temporary custody/ detention/ arrest/ apprehension. Since, there is no remedy stipulated under the Act for a juvenile to retain his freedom or free will, the options available to him or her will be to seek protection under the umbrella of Section 438 of the Code or by filing a writ application under Article 226 of the Constitution of India, when he or she is contemplating his or her “apprehension” under section 10 of the Act. In case it is found that the juvenile is roped in on the basis of an absolute false case or the offence which is registered against the juvenile is not established under the provisions of law, it is the bounden duty of the Courts to see that the juvenile is not apprehended by any police officer or any authority under the Act even for the sake of production before the Board seeking release on regular bail. Thus, in the considered opinion of this Court, the liberty of a juvenile is the supreme factor, and he or she cannot be deprived of the liberty merely because there is no remedy seeking protection against his or her pre-arrest available under the Act. As held hereinabove, a Juvenile can approach directly before the High Court seeking relief against their apprehension under the Act. 18. In my opinion the raison d'être of the Act will get diluted if a child is allowed to lose his or her freedom and liberty; even momentarily. Though, the safeguards of the Act and the Rules, 2016 ensure that the child, so apprehended by a police or any authority, shall not in any manner be disturbed emotionally, psychological or physically, such safeguards cannot replace the warmth, care and affection of parents. Such care and affection of parents infuse or permeate a legal right in the child of seeking protection against his or her being apprehended by the police or any authority. 19. In the present case, it is noticed that a juvenile is allegedly involved in an offence of Section 306 of the IPC. Such care and affection of parents infuse or permeate a legal right in the child of seeking protection against his or her being apprehended by the police or any authority. 19. In the present case, it is noticed that a juvenile is allegedly involved in an offence of Section 306 of the IPC. It is alleged against her that she is responsible for the suicide of the deceased as she was having an affair with the husband of the deceased. The Trial Court has also rejected her application seeking anticipatory bail observing her prima facie involvement in the offence. Without expressing anything on merits or with regard to any instigation or abatement by the applicant, as stipulated under Section 107 of the IPC, I am inclined to pass order against her prearrest. 20. In the result, the present application is allowed by directing that in the event of arrest/apprehension of the applicant in connection with FIR registered at the FIR being C.R. No.11205031210736 of 2021 registered with Mandvi Police Station, District Kachchh, the applicant shall be released on bail in conformity with Section 12 of the Act,2015: (a) shall remain present at the concerned Board on 31.07.2021 between 11.00 AM and 02.00 PM; (b) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the court or to any police officer; (c) shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police; (d) shall be subjected to the conditions prescribed by the Board as per the provisions of law; 21. In the result, the present application is allowed. Rule is made absolute.