SURABHI JAIN Vs. STATE OF WEST BENGAL
HIGH COURT OF CALCUTTA
STATE OF WEST BENGAL
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HARISH TANDON, J. -
(1.)A piquant situation arose on the maintainability of an application under Sec. 438 of the Code of Criminal Procedure at the behest of three petitioners two of whom are admittedly minors apprehending arrest in connection with Bagdogra Police Station Case no. 51 of 2021 registered under Sec. 341/325/354/506/34 of the Indian Penal Code read with Sec. 12 of Prevention of Children from Sexual Offences Act, 2012.
(2.)The Counsels appearing for the petitioners and the prosecution are not ad-idem on the proposition of law pertaining to extension of benefit of pre-arrest so far as it relates to the first two petitioners who are admittedly minors, because of the divergent stands having taken by the respective Counsels and the reliance made on a several decisions of the different High Courts touching upon the rights of the minor to avail the benefit under Sec. 438 of Cr.P.C.
(3.)We appointed Mr. Sekhar Basu, Learned Senior Counsel as amicus curiae to assist and advice the Court to arrive at the correct decision. The aforesaid exercise was further augmented because of the Co-ordinate Bench decision of this Court delivered in case of Krishna Garai and Ors. Vs. State reported in 2016 5CHN 157. The Co-ordinate Bench held that the Juvenile Justice (Care and Protection of Children) Act, 2015 is a complete code by itself providing the rights, procedure and the manner of sentencing of the juvenile including restoration, rehabilitation and reintegration of the children in conflict with law and, therefore, in view of Sec. 5 of the Code of Criminal Procedure which saves the applicability of the special Act, the provision relating to the Juvenile Act and its applicability thereof cannot be whittled down nor can be superseded by any provision of the Code of Criminal Procedure including Sec. 438 thereof.
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