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  • Writer's pictureTrivedi and Parashar (Advocates and Solicitors)

Judicial Updates-

ORISSA HIGH COURT

CHILD IN CONFLICT WITH LAW CAN REQUEST ANTICIPATORY BAIL UNDER SECTION 438 OF THE CRIMINAL PROCEDURE CODE, 1973.


In the case of Subham Jena & another v. State of Odisha [Crl. Rev. No. 551 of 2022], the Informant allegedly caught the Petitioners while they were stealing keys from the railway tracks and had fled the scene after being caught. Thereafter, the Informant had informed the Police, after which, an FIR was registered against the Petitioners under Sections 379 and 34 of the Indian Penal Code, 1860. After the investigation, it was found that the Petitioners were Child in Conflict with Law (CCLs). Furthermore, the Petitioners filed an anticipatory bail application under Section 438 of the Criminal Procedure Code, 1973(“CrPC”) before the Session Court.


While deciding the anticipatory bail application of the Petitioners, the Sessions Court came to the conclusion that since a minor cannot be arrested, the provision under Section 438 of the CrPC would not apply to them because there cannot be an apprehension of their arrest in this situation, despite the differing opinions of many High Courts. As a result, the bail application was Rejected.


Aggrieved by the decision of the Sessions Court, the Petitioners filed an anticipatory bail application under Section 438 of the Criminal Procedure Code, 1973(“CrPC”) before the Orissa High Court.


The High Court observed that the term "person", as used in Section 438 of the CrPC, is a general phrase that is inclusive in character. Because giving the phrase a narrower definition would be against the legislative intent, it must be held to include every person who are apprehending arrest for a crime for which there is no possibility of bail.

Furthermore, the Ld. Judge referred to the judgement of Shri Gurbaksh Singh Sibbia and others v. State of Punjab, [(1980) 2 SCC 565] wherein, it was held that a beneficent construction has to be imparted to the provisions relating to personal liberty. Therefore, it would be an extremely unreasonable proposition that a person would be entitled to the benefit under Section 438 of CrPC only after he completes the age of 18 years and not before.


The High Court discovered that there is no claim in the FIR that the Petitioners actually stole the items from the railway, and there is also no evidence in the FIR to demonstrate how the informant could have determined their identities by using their given names in the FIR.


Thereafter, it was observed that “Coming to the provisions of the JJ Act, it may be noted at the outset that the word ‘arrest’ has not been used anywhere in the statute. Section 10 refers to the apprehension of a child alleged to be in conflict with the law. Obviously, the word ‘apprehension’ here would refer to the former meaning, i.e., the act of capturing or arresting (Oxford Advanced Learner’s Dictionary) and seizure in the name of law (Black’s Law Dictionary). There can be no manner of doubt that both the words are intended to convey the same meaning, i.e., confinement of the person by the authority of law.


This Court noted that an application under Section 438 of the CrPC submitted by a child in dispute with the law for the granting of anticipatory bail is maintainable in the eyes of the law based on a conspectus of the analysis and discussion made hereinbefore.

Therefore, Petition was allowed.

 
 

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