The question of law remains in a dilemma, with courts delivering opposing rulings over the years.
The question of law remains in a dilemma, with courts delivering opposing rulings over the years.
The government has urged the Supreme Court to give an official ruling on whether a child or a juvenile accused of an offense can apply for anticipatory bail.
It said the question of law has been a dilemma for years with courts giving opposing verdicts. In fact, earlier this year, the Calcutta High Court referred the question to a larger bench after coordinating benches gave differing views.
Center wants Supreme Court to end a debate Which deals with the fundamental right to personal liberty of a minor.
Arguments in the High Courts in favor of anticipatory bail under Section 438 of the Code of Criminal Procedure for Juveniles are based on the principle that everyone has a right not to be victimized by the police. They note that the Juvenile Justice Act of 2015 is silent about anticipatory bail. However, this silence cannot be interpreted to conclude that the 2015 law was against anticipatory bail. A “beneficial law” such as the Juvenile Justice Act cannot be interpreted to exclude a component of Article 21 (right to life) of the Constitution. Further, they argue that if an adult can ask for anticipatory bail, the child should be able to do the same.
On the other hand, those opposing this stream of reasoning say that there is no question of law. Children are never “arrested” or put behind bars. The question of anticipatory bail does not arise as the law does not envisage or provide for keeping or keeping a child in jail or police lock-up. In fact, they say, the 2015 Act deliberately uses the word “arrested” instead of “arrested”.
“A child cannot be arrested and placed in charge of a Special Juvenile Police Unit (SJPU) or designated Child Welfare Police Officer (CWPO) to produce him before the Juvenile Justice Board within 24 hours… The court is not liable to be enforced under section 438 of the Code,” argued a decision of the Calcutta High Court.
The Juvenile Justice (Care and Protection of Children) Model Rules of 2016, argue lawyers in high courts, bar a child from being apprehended except in the case of a heinous crime or where it is otherwise in his best interest. In all other cases, the SJPU or CWPO sends the information about the offense alleged to have been committed by the child, along with his social background, to the Board, and informs the parent or guardian.
Further, he argues that granting anticipatory bail to children will do more harm than good. Denial of anticipatory bail by a court would mean arrest. This would be the exact opposite of a ban on lock-up or jailing of children.