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2025 DIGILAW 519 (PAT)

Prince Kumar v. State of Bihar

2025-05-12

S.B.PD.SINGH

body2025
S. B. Pd. Singh, J. – Heard the parties. 2. The petitioner is apprehending his arrest in a case registered for the offence punishable under Section 395 of the Indian Penal Code. 3. At the very outset, learned A.P.P appearing on behalf of the State has made objections about the maintainability of the anticipatory bail application with regard to the child in conflict with law (in short CICL) who is involved in this case which is heinous in nature. He has also argued that Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as J.J. Act) does not make any provision regarding applicability of Section 438 Cr.P.C and Sections 10 and 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 are complete code in themselves. He has also argued that child in conflict with law has no apprehension of arrest in this case because arrest of any child in conflict with law is not permissible under the Act, 2015. 4. Contrary to the above argument advanced on behalf of the A.P.P, learned counsel appearing on behalf of the petitioner has submitted that there is no such expressed bar in the J.J Act regarding applicability of this provision and by adopting the broader sense of the provision enshrined in the Juvenile Justice (Care and Protection of Children) Act, 2015, being the beneficial Act for the juvenile, the child in conflict with law is entitled to get the protection by invoking the provision of Anticipatory Bail under Section 438 of Cr.P.C. 5. In order to fortify his arguments, learned counsel has placed reliance on a judgment reported in SCC Online All 230, decided on 24.05.2025 in the case of Mohammad Zaid & Ors vs. State of U.P. 6. The Juvenile Justice (Care and Protection of Children) Act, 2015 is a social welfare legislation and it protects children from becoming criminals and provides provision for sending the children to the rehabilitation centers in their best interest. After going through this Act, it appears that legislature does not intent to exclude juvenile from justice delivery system. The goal should be always working towards the welfare of the child. 7. After going through this Act, it appears that legislature does not intent to exclude juvenile from justice delivery system. The goal should be always working towards the welfare of the child. 7. Before deciding the applicability of Section 438 Cr.P.C in the case of child in conflict with law pertaining to heinous offfence, it is essential to go through the very objectives of the Juvenile Justice (Care and Protection of Children) Act, 2015. The introduction of this Act reads as follows: – “The Juvenile Justice (Care & Protection of Children) Act, 2015 contains 112 sections in 10 chapters. It is an Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social rePatna 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, hereinunder and for matters connected therewith or incidental thereto.” 8. In Pratap Singh vs. State of Jharkhand, 2005(3) SCC 551 , the Larger Bench of the Hon’ble Apex Court, while dealing with J.J Act, 1996 has observed in para 10 of its judgments: – “10. Thus, the whole object of the Act is to provide for the care, protection, treatment, development and rehabilitation of neglected delinquent juveniles. It is a beneficial legislation aimed at to make available the benefit of the Act to the neglected or delinquent juveniles. It is settled law that the interpretation of the Statute of beneficial legislation must be to advance the cause of legislation to the benefit for whom it is made and not to frustrate the intendment of the legislation.” 9. From bare perusal of the entire J.J. Act, 2015, it clearly transpires that in Chapter-IV, the procedure in relation to children in conflict with law has been mentioned. In section 10, the procedure regarding apprehension of child alleged to be in conflict with law has been prescribed and Section 12 deals with bail to a person who is apparently a child alleged to be in conflict with law. 10. In section 10, the procedure regarding apprehension of child alleged to be in conflict with law has been prescribed and Section 12 deals with bail to a person who is apparently a child alleged to be in conflict with law. 10. In the Juvenile Justice (Care and Protection of Children) Act, 2015, there is no such provision for grant of anticipatory bail, but as per Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015, child in conflict with law (CICL) may be apprehended by the police if he has committed any heinous offence and as per Section 12, such CICL may be granted regular bail, if he fulfills the conditions mentioned in the proviso of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. It is therefore clear that police can apprehend any child in conflict with law. However, the regular bail may be granted or refused to such child in conflict with law on the basis of conditions mentioned therein. 11. Rule 8(i) of the Juvenile Justice (Care and Protection of Children) Rules, 2016 speaks that no FIR is to be registered except where a heinous offences is alleged to have been committed by a child or when such offence is alleged to have been committed jointly with adults. Rule 8(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2016 reads as under: – “8. Pre-Production action of Police and other Agencies. – “(1) No First Information Report shall be registered except where a heinous offence is alleged to have been committed by the child, or when such offence is alleged to have been committed jointly with adults. In all other matters, the Special Juvenile Police Unit or the Child Welfare Police Officer shall record the information regarding the offence alleged to have been committed by the child in the general daily diary followed by a social background report of the child in Form 1 and circumstances under which the child was apprehended, wherever applicable, and forward it to the Board before the first hearing: Provided that the power to apprehend shall only be exercised with regard to heinous offences, unless it is in the best interest of the child. For all other cases involving petty and serious offences and cases where apprehending the child is not necessary in the interest of the child, the police or Special Juvenile Police Unit or Child Welfare Police Officer shall forward the information regarding the nature of offence alleged to be committed by the child along with his social background report in Form 1 to the Board and intimate the parents or guardian of the child as to when the child is to be produced for hearing before the Board.” 12. From the aforesaid provision, it appears that the police can apprehend such child in conflict with law in heinous offences in the best interest of the child whereas in cases of petty and serious offences, apprehension of such CICL is not necessary. The police officer shall forward the information regarding the nature of offence alleged to be committed by the child along with his social background report in Form 1 to the Board and intimate the parents or guardian of the child. 13. In the absence of any specific provision about the applicability of anticipatory bail under Section 438 Cr.P.C in Juvenile Justice (Care and Protection of Children) Act, 2015, the provisions need to be interpreted on the basis of certain principles laid down by the Hon’ble Apex Court and other High Courts. 14. In Shilpi Mittal vs. State of NCT of Delhi and Ors. reported in (2020) 2 SCC 787 , the Golden Rule of interpretation was discussed and it was held that though the Courts cannot add or subtract the words from the Statute but if the intention of the Legislature is clear, then the Court can get over the inartistic or clumsy wording of the Statute. The relevant paragraph reads thus: – “23. The relevant paragraph reads thus: – “23. The Golden Rule of Interpretation was laid down by the House of Lords in Grey vs. Pearson, (1857) 6 HLC 61, as follows: ...I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther..... 24. The Privy Council in Salmon vs. Duncombe and Ors. (1886) 11 AC 627 stated the principle in the following terms: "It is, however, a very serious matter to hold that when the main object of a statute is clear, it shall be reduced to a nullity by the draftsman's unskillfulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity or the absolute intractability of the language used.....” 15. On the anvil of the aforesaid principles, the intention of the legislature in framing the Juvenile Justice (Care and Protection of Children) Act, 2015 can be gathered from general principles to be followed in administration of the act, which is prescribed in Section 3 of Chapter-II of the Act. Although sixteen fundamental principles have been enumerated in the Act, 2015, amongest which principle nos. I, II, III, IV, VI, VIII, X and XVI are most essential for deciding the issue which reads as under: – “(i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years. (ii) Principle of dignity and worth: All human beings shall be treated with equal dignity and rights. (iii) Principle of participation: Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the childs views shall be taken into consideration with due regard to the age and maturity of the child. (iii) Principle of participation: Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the childs views shall be taken into consideration with due regard to the age and maturity of the child. (iv) Principle of best interest : All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential. (vi) Principle of safety: All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter. (viii) Principle of non-stigmatising semantics: Adversarial or accusatory words are not to be used in the processes pertaining to a child. (x) Principle of equality and nondiscrimination: There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child. (xvi) Principles of natural justice: Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.” 16. Amongst the above, first principle is principle of presumption of innocence. As per act, any child shall be presumed to be innocent of any mala fide or criminal intent up to the age of 18 years. Any CICL can be framed in any heinous offfence with mala fide intention and grudge by opposite party which can only be protected by the application of granting Anticipatory bail application. Secondly, the principle of dignity and worth is also significant with respect to CICL because if any CICL is apprehended for heinous offence with a mala fide intention and without reasonable cause, his dignity will come at stake. Principle of best interest will also apply with regard to CICL involved in heinous offence because application of anticipatory bail in such cases will protect the best interest of the CICL and will also help him to develop his full potential. In this way, principle of safety and non-stigmatic semantics will also apply as his apprehension is often considered as stigmated in the society. In this way, principle of safety and non-stigmatic semantics will also apply as his apprehension is often considered as stigmated in the society. Thus, by application of ABA in cases of CICL would resonate the spirits of this principle. 17. Lastly, principle of natural justice also demands the applicability of anticipatory bail application to the CICL. 18. So, after going through the above general principles of the Juvenile Justice (Care and Protection of Children) Act, 2015 enumerated in Section 3 of the Act, it appears that the applicability of anticipatory bail application is more convincing than to non-applicability of anticipatory bail application. 19. The main thrust of argument of the learned A.P.P in this case is that since CICL cannot be arrested, the provision of Section 438 Cr. PC will not be applicable in case of the petitioner. He has also argued that the provision of Section 438 Cr.P.C is only applicable to a person who is apprehending his arrest but since there is no provision for arrest of a child in conflict with law, he cannot explore the said remedy. He also submits that as soon as the person is apprehended and brought to the knowledge of the said authority that said person is a juvenile or it appears to the said authority that said person is juvenile, they would immediately proceed to forward to the said person to a Child Care Home and not arrest him or detain him at the Police Station. 20. Learned A.P.P has also drawn the attention of this Court towards Section 1(4) of the Juvenile Justice (Care and Protection of Children) Act, 2015 which starts with non obstante clause excluding the operation of any other law. 21. To buttress his arguments, learned A.P.P has cited the decision of learned Single Judge of the Allahabad High Court in the case of Shahaab Ali (Minor) vs. State of U.P. The aforesaid judgment of Shahaab Ali (Minor) was subsequently referred to the Larger Bench which was heard in the case of Mohammad Zaid vs. State of U.P and others and other analogous cases wherein the principles laid down by the learned Single Judge in the case of Shahaab Ali (Minor) was over-ruled. Para 11 and 12 of the judgment reads as under: – “11. Para 11 and 12 of the judgment reads as under: – “11. After having heard learned counsels for the parties and learned Amicus Curiae at length, the situation which arises is that a child in conflict with law cannot be left to be remedy-less till the time of his apprehension by the concerned authority or arrest whatever the case may be. Although Section 1(4) of the Act 2015 starts with a non-obstante clause excluding the operation of any act and specifically providing that the provisions of this Act shall apply to all matters concerning the child in need, care and protection and child in conflict with law, but does not, in any manner, bar the power of the Court to grant anticipatory bail under Section 438 Cr.P.C. Non-obstante clause although operates in the areas covered in sub-section (i) and (ii) of Section 1 of Act 2015, under sub-section (i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social integration of child in conflict with law is provided. In so far as in a stage prior to the apprehension or arrest by a child in conflict with law is concerned, the Act is silent The Parliament has not overridden the provision of Section 438 Cr.P.C. There is no provision in Section I and Section 4 or elsewhere in the Act 2015 making Section 438 Cr.P.C. inapplicable for offences punishable under the Act 2015. The liberty of a citizen has to be regulated by law. It has to be procedural, substantial, just and reasonable under Article 21 of the Constitution of India. There is no bar for grant of anticipatory bail to a child in conflict with law or a juvenile, although Section 1(4) of the Act 2015 begins with a non-obstante clause which operates in relation to Code of Criminal Procedure, but the same does not, in any manner, is inconsistent with regard to the provisions of anticipatory bail under Section 438 Cr.P.C. for a juvenile or a child in conflict with law although it is a discretion of the court concerned either to grant anticipatory bail or not, but the remedy of an anticipatory bail cannot be taken away for a juvenile or a child in conflict with law, if there is no specific bar to it. The Legislature has not expressly barred the application under Section 438 Cr. The Legislature has not expressly barred the application under Section 438 Cr. P.C. with regard to a juvenile or a child in conflict with law. If the Legislature had an intention to override the provision of Section 438 Cr.P.C. then the same should have been expressly stated that Section 438 Cr.P.C. shall not apply to a juvenile or a child in conflict with law. There is, however, no such provision in the Code. In these circumstances, therefore, the Legislature in its wisdom left it to the Court to bring about a harmonious construction of the two statutes, so that the two may work and stand together. This is also fully in consonance with the principles laid down in construing the non-obstante clause in the statute. It would be relevant to point out that there are certain statues which expressly excluded the provisions of Section 438 Cr.P.C. 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 right of preferring an application under Section 438 Cr.P.C. 12. If the legislature wanted not to extend the benefit of anticipatory bail to a child in conflict with law, the same would have been specifically barred to be in operation for such person. In Section 18 of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, an absolute bar on the application of Section 438 Cr.P.C. has been created. Section 18 of the said act reads as under: "18. Section 438 of the Code not to apply to persons committing an offence under the Act. – Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. 13. Like it, no bar in the Act 2015 has been created for the application of Section 438 Cr.P.C in it" 22. So far as the argument of learned A.P.P regarding the absence of provision of arrest is concerned, certainly it is not mentioned in the J.J Act, 2015. 13. Like it, no bar in the Act 2015 has been created for the application of Section 438 Cr.P.C in it" 22. So far as the argument of learned A.P.P regarding the absence of provision of arrest is concerned, certainly it is not mentioned in the J.J Act, 2015. The word “arrest” has also not been defined in the J.J Act, 2015 nor in the Cr.P.C but how arrest is to be made is provided in the Cr.P.C. The word “apprehension” and “detention” find place in Section 12 of the J.J Act, 2015 itself which pertains to bail of a person who is apparently a child in conflict with law and is alleged to have committed a bailable or nonbailable offence. The meaning and import of the word “apprehension” “detention” “custody” and “arrest” have been fully described by a Division Bench of Punjab & Haryana High Court in case No. CRM-M-17856-2020 and other analogous cases reported in Neutral Citation No:= 2024:PHC:076452-DB. The relevant paragraphs of the said judgment reads as under: – “What is Apprehension; Detention; Custody and Arrest: 27. In principle, the question which is to be kept in mind with which we are dealing at this stage is the word "apprehension" at the point of time before the CICL has to be produced before the Board. The word 'apprehend' as such is a feel of fear that something bad may happen. Apprehend also means to catch somebody though the strict terminology of arrest may not be used. The usage of same is finally to apprehend the person which would be an aim to catch someone who took the law in his hands or who does something wrong. Normal term of apprehension is pertaining to arrest someone or detain someone who could be a suspect near the scene of the crime. The apprehension may be for a second or minute or hours, whereas the detention can be for a longer period which can be specified. In contradiction with the criminal law, if someone is to be taken into custody, it could be by way of arrest with legal warrant or authority. As per the Cambridge dictionary, 'apprehend' means to catch and arrest someone who has not obeyed the law. 28. In contradiction with the criminal law, if someone is to be taken into custody, it could be by way of arrest with legal warrant or authority. As per the Cambridge dictionary, 'apprehend' means to catch and arrest someone who has not obeyed the law. 28. The word "apprehension", as per the Blacks Law Dictionary, is: – (i) seizure in the name of law; arrest, apprehension of a criminal; (ii) Perception; comprehension, belief: the tort of assault requires apprehension by the plaintiff of imminent contact. (iii) Fear and anxiety about the future especially about dealing with an unpleasant person or as difficult situation." 29. As per Collins Dictionary, the word "apprehension" is also defined as the act of capturing or arresting whereas as per the Cambridge Dictionary, it would mean to catch or arrest someone who has evaded the law. Apprehension is, thus, an action that describes seizing, capturing or arresting a person and is to be seen in the context of police intervention and a situation where an alleged criminal is captured and taken away by Law Enforcement Agencies. The term "detention", as per Black's Law Dictionary reads thus: – "A person held in custody, confined or delayed by an authority, such as a law enforcement or government; a person held indefinitely without trial, especially for political reasons. 30. Thus, it is an act of holding in custody, or confinement for a short period and amounts to captivity or incarceration. 31. The term arrest has not been defined in Cr.P.C. or in IPC though how arrest is to be made is referred to in Section 41. However, it is derived from a french word 'arrater' which means to stop or stay and signifies a restraint of a person. The niceties of the word 'custody' and 'arrest' and that they are not synonymous words was also examined by the Apex Court in State of Haryana and others vs. Dinesh Kumar, (2008) 3 SCC 222 . It was held that it is true that in every arrest there is a custody not not vice-versa and custody as such materializes into an arrest. Resultantly, it was held that mere surrender as such in Court for grant of bail may not be arrest as such but would be judicial custody. It was held that it is true that in every arrest there is a custody not not vice-versa and custody as such materializes into an arrest. Resultantly, it was held that mere surrender as such in Court for grant of bail may not be arrest as such but would be judicial custody. In Directorate of Enforcement vs. Deepak Mahajan, (1994) 3 SCC 440 , it was held that if the two terms are interpreted as synonymous, it would be an ultra legalistic interpretation and if accepted and adopted would lead to startling anomaly and resulting in serious consequences. Thus, if noticed from this aspect, it would be apparent that if a person is to be apprehended and to be produced before Court, he but has to be in custody of an officer since apprehend means seizing or taking hold of a man. This power is only associated along with the power to investigate as laid down in Bhavesh Jayanti Lakhani vs. State of Maharashtra and others, (2009) 9 SCC 551 . It is not disputed that the moment a juvenile is apprehended, he/she would necessarily has to be produced before the Juvenile Justice Board and, thus, detained. Therefore, the custody of the person being with the police officials would amount to a detention or almost akin to arrest but though not formally provided under the Act with a definite purpose. 32. In contrast, the condition which would give the cause of action to invoke the provisions under Section 438 Cr.P.C. would be where a person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence. 33. Counsel also laid stress upon the fact that the word "apprehension", if translated as such in vernacular, amounts to "girftaar", which would pari materia to bring it at par with the word "arrest" as provided for in Section 438 Cr.P.C. and if Hindi translation of the Act is to be seen, the word "apprehension" has also been translated as "girftaar". Counsel also laid stress upon the fact that the word "apprehension", if translated as such in vernacular, amounts to "girftaar", which would pari materia to bring it at par with the word "arrest" as provided for in Section 438 Cr.P.C. and if Hindi translation of the Act is to be seen, the word "apprehension" has also been translated as "girftaar". Thus, for all practical purposes, there is an overlap as such and the benefit has to flow to the juvenile keeping in view of the fact that it is a beneficial piece of legislation which has time and again been upheld by the Apex Court while dealing with various provisions of the Act and also the earlier enactments which were holding the field at that point of time. 34. In fact, the word 'apprehend' as such has a larger meaning than arrest which can be at the initial stage before a formal stage of arrest is made. It is in such circumstances, the Act provides protection to a juvenile from such restraint being put upon him in the form of any preventive detention or from any joint proceedings of a child to be in conflict with law.” 23. After going through the above findings/observations of the Division Bench, it becomes clear that the arguments made by the learned A.P.P is not sustainable and on this score, the CICL cannot be debarred from the opportunity of filing anticipatory bail application under Section 438 of the Cr.P.C. 24. The next argument advanced by the learned A.P.P against the applicability of Section 438 Cr.P.C with respect to CICL is on the basis of provision mentioned in Sections 10 and 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. So far as this argument is concerned, it appears to be not acceptable because Section 10 and 12 of the J.J. Act, 2015 operate after CICL is apprehended. So, it clearly means that above Sections referred to post-apprehension stage and it does not refer to pre-apprehension stage while Section 438 Cr.P.C applies in pre-apprehension stage. Therefore, they cannot be in conflict with or contrary to the provisions of Section 438 Cr.P.C. 25. In this context, some relevant paragraphs are required to be quoted as decided by the Division Bench in the case of Mohammad Zaid vs. State of U.P and others. “20. Therefore, they cannot be in conflict with or contrary to the provisions of Section 438 Cr.P.C. 25. In this context, some relevant paragraphs are required to be quoted as decided by the Division Bench in the case of Mohammad Zaid vs. State of U.P and others. “20. The argument that the Act 2015 does not make provision in the nature of Section 438 Cr.P.C. and that Sections 10 and 12 of the Act 2015 are complete Code in themselves; is also not acceptable. Sections 10 and 12 of the Act 2015 operate "after" a child alleged to be in conflict with law is apprehended. Thus, they refer to "post" apprehension stage. They do not refer to "pre" apprehension stage. Therefore, they cannot be in conflict with the provisions of Section 438 Cr.P.C. The non-obstante clause used in Section 12 operates only when there is a conflict between the provisions of the Cr.P.C. and the provisions of Section 12 of the Act 2015. Since there is no conflict between the provisions of Section 438 of the Cr.P.C. and Section 10 or 12 of the Act 2015, therefore, availability of right under Section 438 Cr.P.C. is not taken away to the detriment of a child. It in no manner creates an ouster for the application of Section 438 Cr.PC. 21. A non-obstante clause is added to a provision in order to uphold its enforceability over another provision that is contradictory to it. It is well settled that the non-obstante clause has overriding effect only in case of inconsistency. (Reference: Ajoy Kumar Banerjee vs. Union of India: (1984) 3 SCC 127 , Chief Information Commissioner vs. High Court of Gujarat, (2020) 4 SCC 702 ). 22. The non-obstante clause is in Sub-Section (4) of Section 1 and in Section 12 of the Act 2015. The same would come into play only if there is inconsistency in the provisions. That would only mean that in case of inconsistency alone, this provision under the Act 2015 would prevail. The Act 2015, as mentioned earlier, is enacted as a beneficial legislation and, therefore, if a child under the Act 2015 has any right under the general law, it cannot be taken away to the child's detriment by relying on these non-obstante clauses; particularly when there is no inconsistency between the Act 2015 and the provisions of Section 438 Cr.P.C. 23. In Section 5 Cr.P.C., it is stated that the Cr.P.C. shall not affect any special form of procedure prescribed by any other law for the time being in force. 24. This Court, thus, comes to the conclusion that a "child" or a "child in conflict with law" as per the Act 2015 can file an application for anticipatory bail under Section 438 of the Criminal Procedure Code, 1973 and the same would be maintainable. Since there is no bar under Section 438 Cr.P.C. restricting its application in so far a child in conflict with law is concerned, the same would be fully applicable. Further, since there is no bar for its applicability therein, the same would thus be applicable for a child in conflict with law as he cannot be left remedy-less till the time of his apprehension by the concerned authority or arrest whatever the case may be The Legislature has not barred the application of Section 438 Cr. P.C while legislating the Act 2015. Even the fundamental right of a child in conflict with law would get infringed if he is not given equal treatment in so far as the right for anticipatory bail is concerned. The same would apply to him subject to inbuilt restrictions in Section 438 Cr. P.C.” 26. In this context, the Division Bench of High Court of Chhattisgarh at Bilaspur in the case of Sudhir Sharma vs. State of Chhattisgarh, reported in 2017 SCC Online Chh 15564 : (2017) 3 CGLJ 405 (DB) has observed thus: – “38. Applying the aforesaid principles applicable in the matter of interpretation of non obstante clause, if the scheme of Act of 2015 in general and the provisions relating to grant of post arrest ball as contained in Section 12 of the Act of 2015 in particular, having non obstante clause to override the provisions of the Code of Criminal Procedure, 1973, generally with the provisions of general applications of Section 4 of the Code of Criminal Procedure, 1973, the legislative Intention does not appear to altogether exclude provisions of the Code of Criminal Procedure, 1973 in relation to provisions contained in Chapter XXXIII relating to bails and bonds. Provisions relating to bails and bonds contained in the Code of Criminal Procedure, 1973 would be rendered inapplicable only to the extent that they are inconsistent with the provisions of grant of bail contained in the Act of 2015. There is no warrant for conclusion that non obstante clause contained in Section 12 of the Act of 2015 completely excludes the availability of remedy of applying for grant of anticipatory bail by a CICL, who is apprehending his arrest on the accusation of commission of any offence. The only provision for grant of ball as contained under Section 12 of the Act of 2015, which deals with application for grant of ball by a CICL applies, when he is apprehended or detained by the police or appears or brought before the Board on the allegation of having committed a bailable or non-bailable offences. The statutory scheme of Section 12 mandates grant of ball to a CICL by use of word "shall" unless there appears reasonable grounds for believing that the release is likely to bring the CICL in association with known criminal or to expose such person to mental, physical or psychological danger or his release would defeat the ends of justice. The provision, in fact, deals with a case of child differently from any other person who is not a child. Unless the aforesaid three exceptional grounds are made out for rejection of application for grant of bail, CICL has to be granted bail irrespective of nature and gravity of allegations against him. We fail to see how the beneficial provision for grant of bail to CICL could be interpreted to the utter prejudice of a CICL to say that he would not be entitled to say that important statutory scheme of seeking anticipatory bail provided under Section 438 of the Code of Criminal Procedure, 1973 is not available to him. On rational construction of the non obstante clause in Section 12, it only seeks to put a CICL in a better position as compared to any other person who is not a CICL by providing that ordinarily a CICL has to be granted bail and it could be rejected upon existence of three specified grounds exhaustively enumerated in the provision Itself. There is no justification for giving non obstante of such a wide amplitude as to exclude the statutory remedy of applying for anticipatory bail by a CICL. There is no justification for giving non obstante of such a wide amplitude as to exclude the statutory remedy of applying for anticipatory bail by a CICL. The Act of 2015 is completely silent with regard to anticipatory bail. Therefore, in view of the provision contained in Section 4 of the Code of Criminal Procedure, 1973, the provision relating to grant of anticipatory bail contained in Section 438 of the Code of Criminal Procedure, 1973 will continue to have application and will be available to CICL, who is apprehending arrest.” 27. As per Rule-8 of J.J Act, 2015, the F.I.R can be registered only when the CICL alleged to have committed a heinous offence or when such offence is alleged to have committed jointly with adults. So, in this circumstance, when the co-accused being adult in a similar case may file anticipatory bail application with respect to same offence, how it is justified to debar the CICL from filing anticipatory bail application simply because he is below the age of 18 years for few days, weeks, months or a year. If CICL is not given an opportunity to invoke the provision under Section 438 Cr.P.C it amounts to infringement of his fundamental rights of equality before law and protection of life and personal liberty granted under Articles 14 and 21 of the Constitution of India. Hence, on this score also, the CICL is entitled to have a liberty to file the anticipatory bail application. 28. Further, there is no such provision in J.J Act, 2015 with respect to anticipatory bail to a CICL in heinous offence which can be construed contrary to the provisions of Section 5 of the Cr.P.C. So, on this score also, the CICL cannot be debarred to invoke the provision under Section 438 Cr.P.C in heinous offence. 29. At this juncture, it is germane to quote the supportive view of Bombay High Court(DB) expressed in the case of Raman and Another vs. State of Maharashtra reported in (2022) 2 AIR Bom R (Cri) 914. The relevant paragraphs of the judgment reads as under: – “39. Section 5 of the Cr. P.C. is also relevant in this context, which reads thus: "5. Saving. The relevant paragraphs of the judgment reads as under: – “39. Section 5 of the Cr. P.C. is also relevant in this context, which reads thus: "5. Saving. – Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." 40. his section makes it very clear that the Cr. P.C. shall not affect any special form of procedure prescribed by any other law for the time being in force. If the JJ Act was to provide for procedure in the nature of Section 438 of the Cr. P.C., that procedure would have overridden the Cr. P.C. But if no special form of procedure is prescribed in the nature of Section 438 of the Cr. P.C., then the provisions of the Cr. P.C. shall operate. Only when there is a special procedure, which is departure from the procedure laid down in the Cr. P.C. for a particular remedy, then only the special procedure would operate to the exclusion of the Cr. P.C. But in the JJ Act there is no special provision, which could operate in the field of Section 438 of the Cr. P.C. and therefore, the provisions of Section 438 of the Cr. P.C. can operate in case of child in conflict with law. As is provided under Section 8 (2) of the 33 Act, the High Court and the Children's Court can exercise the same powers, which can be exercised by the Board. These powers can be exercised in appeal, revision or otherwise. The proceedings under Section 438 of the Cr. P.C. are covered under these powers. Because these powers are also available besides proceedings of appeal or revision. Therefore, when deciding the anticipatory bail application, the High Court or the Sessions Court will have to give due importance to the considerations mentioned in the proviso to sub-section (1) of Section 12 of the 3) Act. However, that proviso does not make the Section 438 of the Cr. P.C. Inconsistent with Sections 10 and 12 of the JJ Act. The inconsistency between Cr. P.C. and these two provisions is in respect of Sections 167 and 437 of the Cr. However, that proviso does not make the Section 438 of the Cr. P.C. Inconsistent with Sections 10 and 12 of the JJ Act. The inconsistency between Cr. P.C. and these two provisions is in respect of Sections 167 and 437 of the Cr. P.C. mainly because the child will have to be produced before the Board and not before any other Court. In those cases, the special procedure provided under Sections 10 and 12 of the JJ Act will have to be followed. But Section 438 of the Cr. P.C. is enacted for a different purpose as discussed earlier and there is no inconsistency. 41. As is provided under Section 8 (2) of the JJ Act, the High Court and the Children's Court can exercise the same powers, which can be exercised by the Board. These powers can be exercised in appeal, revision or otherwise. The proceedings under Section 438 of the Cr. P.C. are covered under these powers. Because these powers are also available besides proceedings of appeal or revision. Therefore, when deciding the anticipatory bail application, the High Court or the Sessions Court will have to give due importance to the considerations mentioned in the proviso to sub-Section (1) of Section 12 of the JJ Act. However, that proviso does not make the Section 438 of the Cr. P.C. inconsistent with Sections 10 and 12 of the JJ Act. The inconsistency between Cr. P.C. and these two provisions is in respect of Sections 167 and 437 of the Cr. P.C. mainly because the child will have to be produced before the Board and not before any other Court. In those cases, the special procedure provided under Sections 10 and 12 of the JJ Act will have to be followed. But Section 438 of the Cr. P.C. is enacted for a different purpose as discussed earlier and there is no inconsistency. 42. As mentioned earlier, if accusations are made against a child with all intention to cause humiliation and harassment, then the right to prefer application under Section 438 of the Cr. P.C. should be available to a child. Section 12 of the JJ Act provides for steps to be taken for production before the Juvenile Justice Board after apprehension. There is a possibility that the child can be detained for some period. P.C. should be available to a child. Section 12 of the JJ Act provides for steps to be taken for production before the Juvenile Justice Board after apprehension. There is a possibility that the child can be detained for some period. However, in cases where accusations are false or are made with oblique motive, then it would be travesty of justice to keep the child away from the protection of his parents and from his usual environment and shelter. There is no reason why he should be deprived of such protection even for a single minute. At that stage application under Section 438 of the Cr. P.C. is the effective remedy available to such child. 43. Based on this discussion, we answer the reference as under: "A 'child' and a "child in conflict with law" as defined under the Juvenile Justice (Care and Protection of Children) Act, 2015 can file an application under Section 438 of the Criminal Procedure Code, 1973." 30. Learned A.P.P also argued that now a days, particularly in the State of Bihar, the CICL, mostly from the age group of 15-18 are becoming the prey of the veteran gangs of criminals and they after giving allurement of some money, engaged them in crimes. At the behest of the veteran criminals, they are frequently committing crimes. So, if the anticipatory bail is allowed to such CICL, they will become veteran criminal in future after coming in association with other criminals. 31. Though there is substance in the aforesaid arguments and this Court is not oblivious of the rampant involvement of CICL in heinous offences, but only due to this reason, a CICL cannot be prevented to invoke the provision of Section 438 Cr. P.C, as the chances of mala fide implication of a CICL cannot be ruled out completely. Therefore, in exceptional circumstances the CICL requires the protection from apprehension under Section 438 Cr.P.C, specially when he is not involved in any crime since before. 32. Apart from that, this Court is of the view that proviso of Section 12 of the Act of 2015 must be applied in its strict sense while considering the anticipatory bail application of CICL. In this regard, it is essential to quote Section 12(i) of Juvenile Justice (Care and Protection of Children) Act, 2015. “12. Bail to a person who is apparently a child alleged to be in conflict with law. In this regard, it is essential to quote Section 12(i) of Juvenile Justice (Care and Protection of Children) Act, 2015. “12. Bail to a person who is apparently a child alleged to be in conflict with law. – (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 the 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 person: Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision.” 33. So, if the CICL is found that he is in association with any known criminal which would expose the CICL to moral, physical or psychological danger and if the release of CICL would defeat the ends of justice, the anticipatory bail cannot be allowed in favour of CICL as enshrined under proviso 12(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 for consideration of regular bail. All these facts can be well ascertained on the basis of S.B.R(Form-I), SIR (Form-VI) and report of psychologist after granting interim order under Section 438(1) of Cr.P.C. 34. After going through the forgoing discussions and the careful perusal of the various judgments of Hon’ble Apex Court as well as Hon’ble Hihg Courts, it appears that Juvenile Justice (Care and Protection of Children) Act, 2015 is special and beneficial legislation. 35. Therefore, in the light of discussions made in preceding paragraphs and interpretation attached thereto, it cannot be accepted that mere silence in J.J Act about the applicability of provisions of Section 438 of Cr.P.C will operate to preclude the CICL from the benefit of anticipatory bail. 36. 35. Therefore, in the light of discussions made in preceding paragraphs and interpretation attached thereto, it cannot be accepted that mere silence in J.J Act about the applicability of provisions of Section 438 of Cr.P.C will operate to preclude the CICL from the benefit of anticipatory bail. 36. Keeping in view the aforesaid facts, I am of the considered opinion that the broader view has been laid down by the Division Bench of Hon’ble Allahabad High Court in deciding the case of Mohammad Zaid and others vs. State of UP, Division Bench of Hon’ble Punjab & Haryana High Court in deciding CRM-M-17856-2020, Division Bench of Hon’ble Chhattisgarh High Court in deciding the case of Sudhir Sharma vs. State of Chhattisgarh and Division Bench of Hon’ble Bombay High Court in deciding the case of Raman and Another vs. State of Maharashtra, it would be the right way to follow such view for proper and just decision on the point of applicability of Section 438 Cr.P.C with respect to CICL in heinous offence. Hence, this Court finds that provision of Section 438 Cr.P.C is applicable to the cases with respect to CICL concerning heinous offence. 37. Now I propose to examine the merit of this case. 38. From perusal of the impugned order dated 03.07.2024 passed by the Additional Sessions Judge-VIII, Bhojpur at Ara, it appears that the Court has not decided the anticipatory bail application of petitioner Prince Kumar (CICL) on the basis of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Perhaps he has decided the case like an adult accused on the basis of merits of the case which is not in consonance with the provision of the Juvenile Justice (Care and Protection of Children) Act, 2015 39. Resultently, the matter is remanded to the concerned District & Additional Sessions Judge/Children Court, who after obtaining Social Background Report [Rules8(1),8(5)] (Form-I) and Social Investigation Report prescribed in Form-VI of J.J Rules, 2016 along with the report of the psychologist and after conclusion of the preliminary assessment of the Board under Section 15 of the J.J Act, 2015, will decide the anticipatory bail of the petitioner afresh at the earliest. 40. Till decision on anticipatory bail of the petitioner (CICL) by the concerned District & Additional Sessions Judge/Children Court, interim protection from the apprehension of arrest shall be granted to the petitioner(CICL). 41. 40. Till decision on anticipatory bail of the petitioner (CICL) by the concerned District & Additional Sessions Judge/Children Court, interim protection from the apprehension of arrest shall be granted to the petitioner(CICL). 41. The District & Additional Sessions Judge/Children Court will not be prejudiced in any manner with the order of this Court and decide the anticipatory bail of the petitioner(CICL) on the basis of aforesaid reports, keeping in view of the relevant provisions of law. 42. The petitioner shall cooperate in the aforesaid enquiry of the Court/Board or authority. It is also made clear that if the petitioner (CICL) fails to cooperate in appearing before the Court/Board or authority, the interim protection granted to the petitioner shall discontinue. 43. Accordingly, the petition stands disposed of.