Centre urges SC to decide if children can apply for anticipatory bail

The question of law has been a dilemma with courts giving opposing judgments over the years

The government has urged the Supreme Court to give an authoritative decision on whether a child or juvenile accused of a crime can apply for anticipatory bail.

It said the question of law has been a dilemma with courts giving opposing judgments over the years. In fact, just earlier this year, the Calcutta High Court referred the question to a larger Bench after coordinate Benches gave differing opinions.

The Centre wants the Supreme Court to end a debate that concerns the fundamental right to personal liberty of a minor.

Arguments in High Courts favouring anticipatory bail under Section 438 of the Criminal Procedure Code for juveniles are based on the principle that every person has a right not to be hounded by the police. They note that the Juvenile Justice Act of 2015 is silent about anticipatory bail. However, this silence cannot be interpreted to conclude that the 2015 law was averse to anticipatory bail. A “beneficial legislation” like the juvenile justice law cannot be interpreted to exclude a component of Article 21 (right to life) of the Constitution. Besides, they argue that if an adult can seek anticipatory bail, a child should also be able to do the same.

On the other hand, those countering this stream of argument say the question of law is non-existent. Children are never “arrested” or put behind bars. The question of anticipatory bail does not arise because the law does not entail or envisage the detention or placement of a child in a jail or police lock-up. In fact, they say, the 2015 Act consciously uses the term “apprehended” instead of “arrest”.

“A child cannot be arrested and he can at best be apprehended and placed in charge of Special Juvenile Police Unit (SJPU) or Designated Child Welfare Police Officer (CWPO) for production before the Juvenile Justice Board within 24 hours… therefore the jurisdiction of the court under Section 438 of the Code is not liable to be invoked,” a Calcutta High Court decision reasoned.

The Juvenile Justice (Care and Protection of Children) Model Rules of 2016, lawyers in High Courts argue, bars a child from being apprehended except in case of commission of heinous offence or where it is otherwise in his or her best interest. In all other cases, the SJPU or CWPO passes on the information about the offence allegedly committed by the child, along with his or her social background, to the Board, and intimate the parents or the guardian.