Naseef v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939** **Bail Appl..No. 385 of 2018** **-------------------CRIME NO. 1422/2017 OF TALIPARAMBA POLICE STATION, KANNUR DISTRICT.** **....** ## **PETITIONER/ACCUSED** **------------------** **NASEEF, AGED 16 YEARS (MINOR), S/O.ZEENATH, MANNIKUNNEL HOUSE, MANNA, TALIPARAMBA P.O., TALIPARAMBA AMSOM, KANNUR DISTRICT.** **BY ADVS.SRI.V.A.SATHEESH, SRI.V.T.MADHAVANUNNI.** **RESPONDENT/COMPLAINANT:** **----------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, THROUGH S.H.O., TALIPARAMBA POLICE STATION, KANNUR DISTRICT.** **BY PUBLIC PROSECUTOR SRI.B. JAYASURYA.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **“C.R.”** ## **RAJA VIJAYARAGHAVAN V, J. -------------------------------------B.A.No.385 of 2018** ## **--------------------------------** Dated this the 1[st] day of February, 2018 ## **ORDER** - 1.This petition is filed by a juvenile in conflict with law. He claims that he is 16 years old. Apprehending arrest and detention in Crime No.1422 of 2017 of Taliparamba Police Station, he seeks for an order of pre-arrest bail. - 2.Heard the learned Counsel appearing for the petitioner as well as the learned Public Prosecutor. - 3.When the question of maintainability was raised, the learned counsel appearing for the petitioner refers to the decision of this Court in **Gopakumar A.V. v. State of Kerala** (2012 (4) KLT 755) and contends that a juvenile in conflict with law would also come within the meaning of “person” covered by section 438 of the Code of Criminal Procedure and he can well maintain a petition seeking anticipatory bail. - 4.The learned Public Prosecutor opposed the prayer and submitted that a Division Bench of the High Court of Judicature at Madras in Crl.O.P.No.22361 of 2015 dated - 27.4.2017, after exhaustively considering all the precedents, B.A.No.385 of 2018 2 had held that an application seeking anticipatory bail under section 438 of the Code of Criminal Procedure at the instance of a child in conflict with law is not maintainable. - 5.I have considered the submissions advanced and have gone through the materials on record. - 6.The legislature had enacted the Juvenile Justice (Care and Protection of Children) Act, 2000 (Act 56 of 2000) to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation. 7. In the year, 2015, it was decided to re-enact Act 56 of 2000 to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), B.A.No.385 of 2018 3 the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), and other related international instruments. It is in the aforesaid circumstances that the 2000 Act was re-enacted and the Juvenile Justice (Care and Protection of Children) Act, 2015 ('Act 2 of 2016' for short) was brought into force. - 8.As per the provisions of the Act, a Juvenile Justice Board has been constituted in every District for exercising the powers and for discharging functions relating to juveniles in conflict with law under the Act. - 9.Section 8 of the Act provides that the Board constituted for any District shall have the power to deal exclusively with all the proceedings relating to juveniles in conflict with law, in the area of jurisdiction of such Board notwithstanding anything contained in any other law for the time being in force. 10.Section 9 of the Act provides that when a juvenile in conflict with law is produced before a Magistrate, who is not empowered to exercise the powers of the Board under the B.A.No.385 of 2018 4 Act and if he is of the opinion that the person brought before him is a child, he is to record such opinion and forward the child immediately along with a record of such proceedings to the Board having jurisdiction. - 11.Section 10 provides for the procedure to be followed in relation to a child in conflict with law. By the said provision, as soon as a child alleged to be in conflict with law is apprehended by the police, such a child shall be placed under the charge of the Special Juvenile Police unit or the designated Child Welfare Police Officer, who shall produce the child before the Board without any loss of time but within a period of 24 hours of apprehending the child excluding the time necessary for the journey from the place where such child was apprehended. It also provides 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. - 12.Section 11 provides that any person, in whose charge a child in conflict with law is placed shall while the order is in force have responsibility of the said child as if the said person was the child's parent and responsible for the child's maintenance. B.A.No.385 of 2018 5 13.Section 12 provides that 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 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. He shall not be so released, if it appears that there are 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. 14.A conjoint reading of the above provisions would make it clear that in respect of a juvenile in conflict with law, a Juvenile Board is the appropriate authority. The said Board has been constituted exclusively for this purpose and no other Court has jurisdiction to entertain any matter B.A.No.385 of 2018 6 concerning the same. The provisions also provide that if the juvenile who has committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall 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 unless there are exceptional circumstances. However, by virtue of section 101 of the Act, any person aggrieved by an order made by the Committee or by the Board under the Act may within 30 days from the date of such order prefer an appeal to the Children's Court and by sub-clause (5) of Section 101 of the Act, any person aggrieved by an order of the Children's Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973. 15.Further more, Section 12 of the Act which deals with bail of juvenile takes care of situations in which the juvenile is arrested or detained or appears or is brought before a Board. In other words, the juvenile can, on his own, appear before the Board consequent to his involvement in a bailable or non-bailable offence. No provision has been inserted in B.A.No.385 of 2018 7 the Act for issuance of an order of anticipatory bail for the reason that the Statute does not contemplate arrest and detention of the juvenile. 16.The object of Section 438 of the Code of Criminal Procedure is to prevent undue harassment of the accused person by pre-trial arrest and detention. When there is an apprehension of arrest on the accusation of having committed a non-bailable offence, such person may apply to the High Court or the Court of Session seeking a direction as dealt with in the said provision. In cases involving adults, if there is an accusation of having committed a non-bailable offence, the threat of arrest is imminent and he has no other go, but to approach the court as provided under the Section. However, in the case of a juvenile, when there can be no apprehension that he would be arrested and detained or that he would be denied bail on his appearance before the Board. The Juvenile Justice Board is also not empowered to pass any order of remand of the child in conflict with law either with the police or in jail. The proviso to 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 B.A.No.385 of 2018 8 lodged in a jail. The Board is required statutorily to send the child either to an Observation Home or a place of safety. Section 11 even provides that any person, in whose charge a child in conflict with law is placed shall while the order is in force have responsibility of the said child as if the said person was the child's parent and responsible for the child's maintenance. In other words, there are innumerable safeguards in the Act as well as in the Rules to ensure that the child is provided with the best care and protection and that he is not subjected to any harassment. None of the provisions empower the police to arrest a child in conflict with the law. But, on the other hand, he can only be apprehended so as to be produced before the Board. - 17.In that view of the matter, the apprehension of the petitioner that he would be arrested and detained for having committed a non-bailable offence is without basis. In that view of the matter, I am of the considered view that this petition seeking anticipatory bail is not maintainable. This petition is dismissed. - 18.However, it is made clear that the petitioner will at liberty to appear before the competent authority and if he proves B.A.No.385 of 2018 9 himself to be a juvenile, his application for bail shall be considered and appropriate orders shall be passed in accordance with law. **RAJA VIJAYARAGHAVAN V., JUDGE** IAP //True Copy\\ P.A to Judge