Denying a child the right to prefer Anticipatory Bail through Section 438 of CrPC violative of Article 14: Bombay High Court

Last Updated on July 16, 2022 by

Written by Vidisha Mathur

In the case of Raman Mundhe s/o Prakash Mundhe and Another v State of Maharashtra before the Bombay High Court, the Bench constituted by Justice S.V. Kotwal and Justice B.P. Deshpande observed that the Juvenile Justice Act had no provisions regarding anticipatory bail and hence, a ‘child’ or ‘child in conflict with law’ can apply for Anticipatory bail under Section 438 of the Criminal Procedural Code.

It was reasoned that denying a child this right would be violative of Article 14 of the Constitution – as along with Sections 3(ii) and 3(x) of the Juvenile Justice Act gave children the right to be treated equally as others.

Applicant’s Counsel, Advocate Suvida Kulkarni, contended that ‘Person’ as defined in the Indian Penal Code, includes ‘Child’ as given in the Juvenile Justice Act. Since the language of section 438 states ‘any person’ – the children may apply through this section. The Court agreed.

Justice Vibha Kankanvadi disagreed with this view and denied anticipatory bail to two siblings aged, 14 and 16 years old. Senior Advocate Rajendra S. Deshmukh was appointed as amicus curiae and he too observed that such an application would not be maintainable as sections 10 and 12 of the Juvenile Justice Act are codes themselves and therefore, section 438 cannot be availed.

The Court though contended that such provisions referred to post and not pre-apprehension and could not conflict with section 438.

Assistant Public Prosecutor, A.V. Deshmukh argued exception from Article 14 as, under the Juvenile Justice Act – there exists a purposeful distinction for the safeguarding of children. He contended that the word ‘arrest’ does not occur in the Juvenile Justice Act either, ergo Anticipatory bail i.e., grant of bail to a person apprehending ‘arrest’ does not occur either.

The Court though held that the Code of Criminal Procedure uses ‘arrest’ and ‘apprehend’ interchangeably. It observed that Section 438 could only be disallowed if the Juvenile Justice Act provides an alternative law.

The right of a child to prefer anticipatory bail must be ensured as if the accusation against them is false or wrongly intended, then the child being kept away from their parents and home would be a travesty of justice.