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2022 DIGILAW 426 (GAU)

Kara Taling v. State Of Arunachal Pradesh

2022-04-27

ROBIN PHUKAN

body2022
JUDGMENT : (Robin Phukan, J.) : - 1. Heard Mr. N. Ratan, learned counsel for the petitioner. Also heard Mr. U. Bori, learned Additional Public Prosecutor for the State respondent. 2. This application, under Sec. 438 of the Cr.P.C., is preferred by Shri Tadas Rab Kara, representative (maternal uncle) of Shri Nana Tania (actual name withheld) a minor (17 years), for granting him pre-arrest bail in connection with Itanagar Women P.S. Case No. 45/2022, under Ss. 341/376/354-C/323/506 of the Indian Penal Code. 3. The factual background leading to filing of the present petition is briefly stated as under:- "On 30/3/2022, one Smti Kara Pera of Chimpu Village under Itanagar Police Station, lodged one F.I.R. with the Officer-In-Charge, Women Police Station, Itanagar, to the effect that on 29/1/2022, at Sagalee, the petitioner committed rape upon her inside a rented room and thereafter on 5/2/2022, he again committed rape on her at her residence at Chimpu and thereafter on 25/3/2022, he restrained her wrongfully while started investigation. Then, on apprehension of arrest, the petitioner filed the present petition for granting him pre-arrest bail." 4. While the case was fixed for hearing on 6/4/2022, Mr. U. Bori, learned Additional Public Prosecutor, has raised objection about entertaining this petition as, admittedly, the person concerned is a juvenile. The factum of juvenility is not disputed by Mr. N. Ratan, learned counsel for the petitioner and, accordingly, the case was listed for hearing on 21/4/2022, on the question of maintainability. Accordingly, both the parties were heard on 21/4/2022. 5. Mr. U. Bori, learned Additional Public Prosecutor, relied upon several case laws -(i) (2016) 2 CalCriLR 561, (ii) Mominul Islam Vs. State of Assam (AB No. 1661/2019), (iii) Satendra Sharma Vs. State of M.P. [2014 0 Supreme(MP) 354], (iv) Shahaab Ali (Minor) and Anr. Vs. State of U.P. [2020 1 Crimes(HC) 276], and (v) Suhana Khatun and Ors. Vs. State of West Bengal [CRM No. 2739 of 2021], submits that the present petition is not maintainable as the 2015 Act is a Special Act meant especially for juvenile. Mr. U. Bori, learned Additional Public Prosecutor, further submits that there is no provision for arrest of juvenile in the Juvenile Justice Act. Vs. State of West Bengal [CRM No. 2739 of 2021], submits that the present petition is not maintainable as the 2015 Act is a Special Act meant especially for juvenile. Mr. U. Bori, learned Additional Public Prosecutor, further submits that there is no provision for arrest of juvenile in the Juvenile Justice Act. The word mentioned therein is only 'apprehended' and in such cases, he has to be dealt with as per the provision of the Juvenile Justice (Care and Protection of Children) Act, 2015, and there is implied exclusion of Sec. 438 Cr.P.C. Having carefully gone through the case laws referred by Mr. Bori, I find substance in the same and the law laid down in the cases referred by him also fortified his submissions. 6. On the other hand, Mr. N. Ratan, learned counsel for the applicant, submits that there are conflicting judgments about maintainability of the petition for granting anticipatory bail to a juvenile under Sec. 438 of the Cr.P.C. Mr. Ratan, learned counsel for the petitioner, has referred one case law of Madras High Court in K. Vignesh Vs. State represented by the Inspector of Police, Chennai [(2017) 0 Supreme (Mad) 892], wherein, a Division Bench of Madras High Court has held that a child in conflict in law cannot be arrested and thus there cannot be any apprehension of arrest, so an application at the instance of the child in conflict with law, either before the High Court or before the Court of Sessions, under Sec. 438 Cr.P.C. is not maintainable. Mr. Ratan also referred another case law in Piyush, minor through his natural mother Smt. Nirmla Devi wife of Sh. Narender Vs. State of Haryana [(2021) 3 Crimes (HC) 138], wherein, a Single Judge also held that petition under Sec. 438 Cr.P.C. preferred by a juvenile is not maintainable. Mr. Ratan also made a reference to a judgment of Gujarat High Court in the case of Kureshi Irfan Hasambhai Thro Kureshi Kalubhai Hasambhai Vs. State of Gujarat [Criminal Misc. Application No. 6978 of 2021], wherein, it has been held that the application is maintainable. Referring to another case law, in - Suhana Khatun and Ors. Vs. State of West Bengal [CRM No. 2739 of 2021], Mr. State of Gujarat [Criminal Misc. Application No. 6978 of 2021], wherein, it has been held that the application is maintainable. Referring to another case law, in - Suhana Khatun and Ors. Vs. State of West Bengal [CRM No. 2739 of 2021], Mr. Ratan pointed out that a Division Bench of Calcutta High Court has referred the matter to a larger Bench to decide as to whether or not an application for anticipatory bail under Sec. 438 Cr.P.C, at the instance of the minor (juvenile), is maintainable in view of the decision of co-ordinate Bench of that Court, wherein it has been held that petition is not maintainable. But, the line of discussion made by the Division Bench, which referred the matter to a larger bench, in the said case, accordingly to Mr. Ratan, it can be inferred that the petition is maintainable. Accordingly, Mr. Ratan contended to allow the petition. 7. Having heard the submissions of learned Advocates of both side, I have carefully gone through the petition and the documents placed on record and also perused the case laws referred by them. Admittedly, there is no decided case law of Hon'ble Supreme Court on this point. Also perused the relevant provision of the Juvenile Justice (Care and Protection of Children) Act, 2015. 8. It appears that Juvenile Justice (Care and Protection of Children) Act 2015, is a Special Act. It was enacted with the objective of consolidating and amending the law relating to children who are found to be in conflict with law and the children who needs care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, herein under and for matters connected therewith or incidental thereto. 9. Sec. 12 of the Act deals with bail of juvenile. 9. Sec. 12 of the Act deals with bail of juvenile. It provides that:- (1) When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a Probation Officer or under the care of any fit. Provided that such person shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice and the Board shall record the reasons for denying the bail and circumstances that lead to such a decision. (2) When such person having been arrested is not released on bail under sub-sec. (1) by the officer in-charge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board. (3) When such person is not released on bail under sub-sec. (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order. (4) When a child in conflict with law is unable to fulfil the condition of bail order within seven days of bail order, such child shall be produced before the Board for modification of the conditions of bail. 10. A cursory perusal of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, reveals that the Act itself is a complete code to deal with any eventualities relating to a child in conflict with law. The aforesaid Act was enacted to protect the interest of the juvenile and as such, the word 'arrest' is not there, instead the word 'apprehended' is there. Mr. Bori, the learned Addl. P.P. has rightly pointed this out during hearing. The aforesaid Act was enacted to protect the interest of the juvenile and as such, the word 'arrest' is not there, instead the word 'apprehended' is there. Mr. Bori, the learned Addl. P.P. has rightly pointed this out during hearing. The 2 (two) terms, i.e. 'arrest' and 'apprehended' the first one being mentioned in Sec. 438 Cr.P.C. and the later being mentioned in the Juvenile Justice (Care and Protection of Children) Act, 2015, are not synonymous. One of the condition precedents for invoking the jurisdiction under Sec. 438 Cr.P.C. is that there is apprehension of arrest. But, admittedly, there is no such provision of arrest in the Juvenile Justice (Care and Protection of Children) Act, 2015. When a provision is not there in the Act itself, it cannot be read therein. 11. Thus, having examined the present question, in the light of the object and reason sought to be achieved by the Special Act, i.e. Juvenile Justice (Care and Protection of Children) Act 2015, and also drawing premises from the illuminating discourse, made herein above, this Court is unable to record concurrence with the submission of Mr. N. Ratan, learned counsel for the applicant, and to hold that the petition under Sec. 438 of the Cr.P.C., by a minor/juvenile, is maintainable. In view of above, the Anticipatory Bail Application stands dismissed. However, it is being clarified that in the event of apprehension of the alleged child, here in this case, he shall be dealt with under the relevant provision of the said Act.