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The question whether a child in conflict with law apply for anticipatory bail? And is an application for anticipatory bail at the instance of a child in conflict with law maintainable before the high court or the Court of Session? The answer to this was provided by Justice R Narayana Pisharadi of Kerala High Court, as he held that a child in conflict with law can very well apply for anticipatory bail as there is nothing in the Juvenile Justice (JJ) Act which bars him/her from doing so. The court further held that an application for anticipatory bail under Section 438 of the Criminal Procedure Code at the instance of a child in conflict with law is maintainable before the high court or the Court of Session.
The minor who was accused of being involved in an attack on a person by some 50 people with deadly weapons on March 31, 2018 and of wrongfully restraining the complainant while the other accused assaulted him with an intention to kill. The minor represented by advocates T Madhu and CR Saradamani moved the court for anticipatory bail. The State of Kerala was represented by Public Prosecutor O Chandrasenan.
While considering his plea, Justice Pisharadi also considered the Madras High court decision in K Vignesh vs State wherein the court has given importance to the fact that Section 10 of the JJ Act provides for apprehending a child in conflict with law by the police and not for arresting him and in the absence of any arrest, no question of invoking the provision contained in Section 438 of the Code arises. “That court (Madras HC) is of the view that since a child in conflict with law cannot be arrested, he/she need not apply for anticipatory bail. However Justice Pisharadi was of a different opinion. He said, “I am in respectful agreement with the aforesaid view. At this juncture, it is to be noticed that in Gopakumar v. State of Kerala, while considering the provisions contained in the Act of 2000, this Court has held that a juvenile in conflict with law apprehending arrest in a non-bailable offence, no doubt, will be entitled to seek the discretionary relief of pre-arrest bail envisaged under Section 438 of the Code because that Section takes within its ambit ‘any person’ to seek such relief when he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence.” He concluded by saying that “The upshot of the discussion above is that an application for anticipatory bail under Section 438 of the Code at the instance of a child in conflict with law is maintainable before the High Court or the Court of Session,”.
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