An Allahabad High Court Bench of Justice Jyotsna Sharma has held that a child in conflict with the law cannot seek anticipatory bail under Section 438 of the CrPC.

Counsel Rakesh Pathak appeared for the applicant, while AGA OP Mishra appeared for the State.

In this case, an application was filed on behalf of a minor through his father, seeking anticipatory bail in an FIR filed for offences under Sections 307, 504 and 506 of the IPC. It was contended on behalf of the applicant that a minor cannot be deprived of protection available under Section 438 of CrPC just because he is not an adult.

The Court observed that "While the powers under Section 438 Cr.P.C. are available to the High Court or to the Court of Sessions only. It does not stand to reason to assume that powers under Section 438 Cr.P.C. shall be exercisable by Children Court (or shall be exercisable by the Sessions Court) in relation to children in conflict with law just because the Section 438 Cr.P.C. mentions Sessions Court. If such an interpretation is done, it shall disturb the whole of the scheme of the ‘Courts’ in Juvenile Justice Act, 2015."

Subsequently, the Court also took the opinion that "In case, the provisions of Section 438 Cr.P.C. are allowed to hold field in the matters of juvenile, the aim and object of the Act shall be defeated. The interpretation of law cannot be devised in a way, so as to put a hurdle in the broader and solemn aim which is sought to be achieved by this enactment."

Affirming the view taken in Shahaab Ali and Anr. vs State of UP, the Court observed that "...the Juvenile Justice Act is a comprehensive legislation containing all provisions with regard to children in conflict with law and that the provisions of Section 438 Cr.P.C. have no application being extraneous and incompatible with the scheme as well as aim and objective sought to be achieved by the Act."

Resultantly, the anticipatory bail application was dismissed as not maintainable.

Cause Title: Minor 'X' Through His Guardian/Father, District Prayagraj v. State of UP & Anr.

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