Juvenile Suspects And Pre-Arrest Bail
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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By Sunil Garodia
First publised on 2024-01-21 08:59:38
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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
View all posts by this Author
The judiciary is confused whether a juvenile suspect can be granted pre-arrest bail. The law in unclear and can be interpreted differently by different benches. This is what has raised concerns with several judgments coming out either in favour or against the grant of bail to juveniles. A few Calcutta HC benches have referred the matter to the Chief Justice of the court with a plea that the matter be decided by a larger, Constitutional bench.
At the heart of the matter is the Juvenile Justice Act (JJ Act) which prohibits arresting a juvenile suspect in the normal sense of the word. This means that the juvenile suspect cannot be picked up by investigating authorities and put behind bars, either in a jail or in a police lock-up. They have to be hand the child to the Special Juvenile Police Unit (SJPU) or Designated Child Welfare Police Officer (CWPO) and he or she has to be sent to an observation home for production before a Juvenile Justice Board within 24 hours.
In such a case, is the child entitled to even apply for anticipatory bail under Section 438 of the CrPC? But the problem arises because Section 438 does not differentiate between an adult and a child and Section 10 of the JJ Act says the child can be apprehended. Legal experts says 'apprehended' while not similar to 'arrested', does put restrictions on the child's freedom and in that sense, he or she can apply for anticipatory bail to prevent apprehension.
Other legal experts say that bail or anticipatory bail, in strict legal terms, is something to prevent someone from being taken into the custody of the investigating agency for questioning regarding the crime and later, after production before a magistrate, put in police lock-up or jail as ordered by the magistrate. They argue that since a child can neither be questioned by investigating agencies nor put in police lock-up or jail, the question of applying for, or grant of, anticipatory bail under Section 438 of CrPC does not arise.
The arguments on both sides are strong. The Supreme Court is also seized of the matter and has sought the Centre's view in the matter. There has to be clarity in this regard as the JJ Act exists to protect the interests of juveniles. If they can apply for anticipatory bail to prevent apprehension, it has to be under the JJ Act and before the Juvenile Justice Board. Section 438 of CrPC must be suitably amended to allow application and grant (or refusal to grant) of anticipatory bail only to adults.
