ANKESH GURJAR Vs. STATE OF MADHYA PRADESH
HIGH COURT OF MADHYA PRADESH
STATE OF MADHYA PRADESH
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Sheel Nagu,J. -
(1.) This bench has been constituted to resolve the controversy referred by Hon. the Chief Justice stemming from difference of opinions between two single benches of this court.
(2.) Noticing the cleavage of opinions between two single benches manifested by the order dated 22/10/2020 in Misc. Criminal Case 41359-2020 CCL (Child In Conflict with Law) Vs. State of M.P. and order dated 4/11/2020 in Criminal Revision 2112 of 2020 Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P. the following questions have been framed in both cases :-
Misc. Criminal Case 41359/2020 CCL (Child In Conflict with Law) Vs. STATE OF M.P. Order dated 22/12/2020
Accordingly, the Registry is directed to forward the case to the Principal Seat and for the sake of convenience, the following proposed questions are framed:
(i) Whether the benefit of anticipatory bail u/s 438 Cr.P.C is available for a juvenile to be availed while invoking Section 12 of Juvenile Justice Act ?
(ii) Whether denial of remedy of anticipatory bail u/s 438 to a juvenile would be abhorrent to the beneficial and rehabilitatory object behind the Juvenile Justice Act ?
(iii) Assuming that remedy of anticipatory bail is not available to a juvenile, can Article 226 of Constitution or Section 482 of Cr.P.C be invoked seeking anticipatory bail to prevent the juvenile from being remedy-less ?
(iv) Which among the two conflicting views of coordinate Benches (both SB) i.e. in Kamlesh Gurjar (Supra) and Miss A (Supra) lay down the correct law ?
Criminal Revision 2112/2020 Ankesh Gurjar @ Ankit Gurjar Vs. State of M.P. Order dated 4/11/2020
As the question of maintainability of application for anticipatory bail is already under reference in view of the difference of opinion, therefore, this Court is of the view that following additional questions also require adjudication :
1. When there is no concept of custody, as a child in conflict with law is neither arrested nor sent to jail, then whether an application for grant of anticipatory bail would be maintainable?
2. In absence of provision for grant of anticipatory bail, whether the Court can legislate by providing for anticipatory bail?
3. Whether the Legislature has intentionally omitted the provision of Section 438of Cr.P.C. in view of Section 12(3), and 24(1)of Act, 2015?
4. Whether a social verification report can be submitted by Probtation Officer, even in absence of detention/apprehension of a child in conflict with law?
5. Whether Section 12(1) of Act, 2015 would be a guiding factor for deciding the application for grant of anticipatory bail?
6. Whether the Juvenile Justice Board/Children's Court/High Court, can consider the nature of allegations to find out as to whether any prima facie case under Act, 1989 or any other statute like NDPS Actis made out or not?
(3.) From perusal of the controversy delineated in the aforesaid questions framed, this court would like to dwell upon the cardinal and seminal issue as detailed below since the same shall provide the necessary platform to answer the aforesaid questions :-
QUESTION FRAMED BY THIS COURT
Whether the legislature while promulgating Juvenile Justice (Care and Protection of Children) Act, 2015, in particular Sec. 12, consciously omitted to make available benefit of anticipatory bail to a juvenile or not ?.
3.1 For answering this question, it is necessary to track the history behind the promulgation of 2015 Act:-
3.2 The Framers of our Constitution were conscious of the basic human rights of children which is evident from bare reading of Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution, which are reproduced below for ready reference and convenience :-
"Art. 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-
(1) xxxx xxxx xxxx
(2) xxxx xxxx xxxx
(3) Nothing in this article shall prevent the State from making any special provision for women and children. Art.39. Certain principles of policy to be followed by the State:-
(a) xxxx xxxx xxxx
(b) xxxx xxxx xxxx
(c) xxxx xxxx xxxx
(d) xxxx xxxx xxxx
(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
Art. 45. Provision for free and compulsory education for children.-
The State shall endeavor to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
Art.47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.-
The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. "
3.3 The United Nations conscious of deprivation of basic need, care, protection, reformation and rehabilitation of children in conflict with law and children in need of care and protection, prescribed certain basic standards in the Convention on the rights of the child in shape of United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules).
3.4 Accepting the aforesaid Resolution of United Nation of 1985 the Parliament promulgated Juvenile Justice Act, 1986.
3.5 The aforesaid Resolution of the United Nations was ratified and accepted by the Govt. of India on 11/12/1992 which paved the away for promulgated of Juvenile Justice (Care And Protection Of Children) Act, 2000.
3.6 Thereafter, the Union Nations framed Rules of juveniles for protection and deprived of their liberty in 1990 which were followed by Rules regarding protection of Children and cooperation in respect of Inter-country Adoption in 1993 Hague Convention. There were other ancillary and incidental international instruments also brought into force by United Nations.
3.7 To plug the loopholes in 1986 Juvenile Justice Act and to make it more comprehensive and in line with the United Nations resolutions on the Rights of Child, the Parliament repealed 1986 Act and promulgated Juvenile Justice (Care And Protection Of Children) Act, 2000.
3.8 The Act, 2000 underwent amendment twice, in 2006 and in 2011.
3.9 Thereafter the Parliament to bring a more comprehensive law on the subject promulgated the Juvenile Justice (Care and Protection of Children) Act, 2015 keeping in mind the constitutional mandate and the principles of care, rehabilitation, reformation development etc. of children in conflict with law and in need of care and protection. ;
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