- (1.) Apprehending arrest in connection with Bolpur Police Station Case No. 01 of 2016 dated 02.01.2016 under Sections 304/34 of the Indian Penal Code, this application for anticipatory bail has been filed under Section 438 of the Code of Criminal Procedure.
(2.) Defence counsel submits that there was a long standing dispute between the petitioners and the family of the victim, who are co -sharers. On the date of incident, an altercation took place between the petitioner no. 1and the victim. Altercation was not such as to cause the death of the victim but the victim died and his brother filed the complaint involving the petitioners herein. The petitioner no. 1 is the principal accused, the petitioner no. 2 is his 13 year old daughter studying in Calss IX and the petitioner no. 3 is the wife of the petitioner no. 1. In no way they are involved in the alleged offence and have been falsely implicated due to land dispute. The application under Section 438 of Cr. P. C. is maintainable by the petitioner no. 2 and despite being a minor she need not approach the Juvenile Justice Board for grant of bail. In view of Sections 2(k) and 2(l) of the 2000 Act, Section 6(2) also empowers the High Court and the Court of Sessions with the powers conferred on the Juvenile Justice Board in proceedings before it in appeal, revision or otherwise. The term 'otherwise' has been retained also in the 2015 Act and would mean an application filed under Section 438 Cr. P.C. Section 12 deals with grant of bail to juveniles. Section 437(1) deals with a situation similar to Section 12. Section 52 of the 2000 Act deals with appeals before the Court of Sessions. Section 438 Cr. P. C. stands on a different footing and the opening words of Section 438 Cr. P. C. is "where any person has reason to believe. ''Any person'' has not been defined under the 1973 Act but ''person" has been defined under Section 11 IPC to include any company or association or body of persons incorporated or not. Section 10 has defined man and woman a person of any age. Therefore any person would mean a man or woman of any age irrespective. Section 303 of the Code of Criminal Procedure gives all persons the right to defend himself through a pleader of his choice and the petitioner no.2 has exercised her choice by execution of Vakalatnama and appointing a pleader. Chapter 14 of the Appellate Side Rules of this High Court and in particular Rule 2 permits an advocate to appear for any person in any court provided a warrant of attorney (Vakalatnama) in writing has been executed with the signature of such person. In the instant case the petitioner no. 2 has signed such Vakalatnama. Rules 28 and 29 of the Appellate Side Rules be also considered. As the Code of Criminal Procedure does not impose a bar on the petitioner no. 2 to file an application under Section 438 Cr.P.C., orders be passed in respect of the petitioner no. 2 in this application.
(3.) Reliance is placed on 2010 SCC On Line MP 641, unreported decision of Karnataka High Court in Criminal Petition No. 1595 of 2014(Madhu G. L. Versus The State of Karnataka), unreported decision of Madhya Pradesh High Court (Gwalior Bench) in Satendra Sharma Vs. The State of Madhya Pradesh, unreported decision of Madras High Court in Crl. O. P. No. 23992 of 2015 (Minor Y.Pathe Khan Vs. The State), and 2016 SCC OnLine Madras 151(M. Khannadasan Vs. State of T. N.) for the proposition that an application filed under Section 438 Cr. P.C. is not maintainable although from the said judgement it will appear the petitions were filed by the minors themselves. Reliance is placed on 2005 CRI.L.J. 3271, 2007 CRI. L.J. 3047 and 2013 CRI. L. J. 851 for the proposition that an application under Section 438 Cr. P. C. is maintainable. Therefore orders be passed as sought.;