Siddharth, J.:— Heard Sri Brij Raj Singh, learned counsel for the applicant and learned A.G.A. for the State.
2. The applicant, Mohammad Zaid, is a minor and has approached this Court through his natural guardian seeking anticipatory bail in Case Crime No. 146 of 2019, under Section 323, 324, 307, 506 I.P.C., Police Station-Wasirganj, District-Budaun.
3. Learned counsel for the applicant has submitted that the applicant is a minor and from the allegations made against him in the F.I.R., no case is made out. Hence, he deserves to be enlarged on anticipatory bail as per Section 438 Cr.P.C.
4. Learned A.G.A. has opposed the prayer made on behalf of the applicant and has submitted that an application for grant of anticipatory bail at the behest of a child in conflict with law is not maintainable after F.I.R. has been registered against him in view of the judgement of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 597 of 2020, Shahaab Ali (Minor) v. State of U.P. dated 20.01.2020. He has further submitted that this Court has held in the aforesaid judgement that provisions of The Juvenile Justice (Care and Protection of Children) Act, 2015, (hereinafter referred to as the “J.J. Act, 2015”), dealing with arrest and detention of a child in conflict with law, must prevail over any other law for the time being in force. The J.J. Act, 2015 is a self-contained code providing distinct procedure to be followed in the case of arrest or detention of a child in conflict with law. The extension of provisions of Section 438 Cr.P.C. will be an interference with the statutory process that is provided under the J.J. Act, 2015. Once the F.I.R. is registered against the child in conflict with law, the provisions of Section 438 Cr.P.C. stand impliedly excluded in view of Section 1(4) of the J.J. Act, 2015. The provisions of Sections 10 & 12 of the J.J. Act, 2015 should be permitted to operate unfettered by provisions of any other statute.
5. Learned counsel for the applicant has submitted that the judgement of this Court in the case of Shahaab Ali (Minor) (supra) has confined the application of Section 438 Cr.P.C. by opening a limited window for its application to a child in conflict with law to the stage prior to recording of first information report. He has submitted that this limited opening of window is causing great prejudice to the rights of child in conflict with law since only after the F.I.R. is registered before the police station and the police starts making efforts to apprehend the child in conflict with law, the information of implication of such an accused comes to the notice. In cases of false implication, the effort of the police to arrest the child in conflict with law comes like a bolt from the blue and if the protective umbrella of Section 438 Cr.P.C. is not opened on such an accused, he gets apprehended by the police which as per the judgement of this Court in Shahaab Ali (Minor) (supra) is akin to arrest. He has submitted that Articles 14 and 21 of the Constitution of India apply to the minor with same force as an adult accused and therefore, the discrimination in extending the full protection of Section 438 Cr.P.C. to the child in conflict with law is not in accordance with the fundamental law of the land. Provision for grant of anticipatory bail cannot be interpreted to the utter prejudice of a child in conflict with law by shutting the window of Section 438 Cr.P.C. for such an accused after post-recordal stage of F.I.R. till his apprehension by police. He has submitted that the J.J. Act, 2015 is absolutely silent as to the protection of the right to liberty of a child in conflict with law before his arrest and therefore, the non-obstante clause contained in Section 12 of the J.J. Act, 2015 cannot be extended to encompass the whole pre-arrest stage of the child in conflict with law. Code of Criminal Procedure (Cr.P.C.) provides that nothing contained therein shall be affected by any special act save what is excluded by a specific provision to the contrary. In the J.J. Act, 2015, there is no exclusion of the powers conferred on the Sessions Court/Children's Court and the High Court to grant anticipatory bail to a child in conflict with law regarding non-bailable offences.
6. Learned counsel for the applicant has further submitted that the personal liberty of a child in conflict with law is being severely affected on account of the limited opening of the window of Section 438 Cr.P.C. by this Court in the case of Shahaab Ali (Minor) (supra) and therefore, the applicant may be enlarged on anticipatory bail.
7. This Court in the case of Shahaab Ali (Minor) (supra) has held as follows:—
“The implied exclusion of Section 438 essentially flows from Section 1(4) of the 2015 Act that confers on the provisions made therein in respect of arrest and detention the character of preeminence. The section is a clear manifestation of the legislative intent that the provisions of the 2015 Act dealing with arrest and detention must necessarily prevail over any other law for the time being in force. The 2015 Act represents an all encompassing and self contained code laying in place a separate and distinct procedure liable to be followed in case of arrest or detention of a child in conflict with law. It places significant and special safeguards in respect of the apprehension of a child in conflict with law. It is in that sense not an incarceration or detention by the police as normally understood. The extension of the provisions of Section 438 of the Criminal Procedure Code would clearly interfere with and disrupt the statutory process that is otherwise liable to be followed upon apprehension of a child. It must consequently be held that once a first information is registered or information otherwise recorded by the SJPU or the CWPO with regard to a child in conflict with law, the provisions of Section 438 stand impliedly excluded. In such a situation it is the provisions made in Sections 10 and 12 of the 2015 Act which alone must be permitted to operate and recognised in law to be applicable.
The only limited window in which Section 438 can be held to apply is the pre recordal of information stage with regard to an offense allegedly committed by a child. As noticed above, Section 10 comes into play only once information in respect of an offense comes to be recorded. Prior to that a child apprehending detention or deprivation of liberty is accorded no protection or avenue of redress under the 2015 Act. It is within this narrow confine alone that his right to invoke the jurisdiction of the Court of Sessions or the High Court must be recognised to exist and preserved.”
8. After hearing the rival contentions, this Court finds that the denial of the right of seeking anticipatory bail to a child in conflict with law after post-recordal stage of the F.I.R. is regularly coming before this Court. The coordinate Bench of this Court has considered the scheme of the J.J. Act, 2015 regarding arrest and bail and the interpretation accorded thereto by different High Courts. It has clearly held that there is no absolute bar for entertaining an anticipatory bail application of a child in conflict with law by the High Court or the Court of Sessions but it has confined such a relief to the stage of pre-recordal stage of F.I.R. It has not considered the fact that normally before the F.I.R. is lodged, most of the accused never come to know about the lodging thereof. It is only after the police launches a hunt for arresting the accused, then the family members of a child in conflict with law and the child in conflict with law, come to know about child's implication. In some cases after lodging of F.I.R, the police keeps on assuring the parties that the matter would be settled and then suddenly the arrest is made at the behest of other party which is able to convince the police. The pre-arrest meeting with the parties at police stations, which is full of suspense, is a fact which is discernible and closing of eyes to the realities existing in society only because of the procedural niceties of post-arrest law of J.J. Act, 2015 is not the requirement of the time.
9. There are five different pre-trial stages after criminal law is set in motion which are relevant for present consideration:—
(i) Pre-recording stage of F.I.R. against a child in conflict with law;
(ii) Recording stage of F.I.R. against a child in conflict with law;
(iii) Pre-arrest stage of a child in conflict with law;
(iv) Arrest stage of a child in conflict with law; and
(v) Post-arrest stage of a child in conflict with law.
10. Before the F.I.R. is lodged, if an accused comes to know of it, he can avail the remedy of anticipatory bail as held by this Court in Shahaab Ali (Minor) (supra). But if he does not comes to know of the same, he cannot avail it. The threat of arrest/apprehension starts looming large over him when he is still oblivious of lodging of the F.I.R. If suddenly he comes to know of existence of F.I.R. against him in the second stage, he can avail the remedy of anticipatory bail before his arrest but this Court in the case of Shahaab Ali (Minor) (supra) bars the same. Therefore, in third stage of pre-arrest, he has to wait in fear of the police to come and arrest him and subject him to the beneficial provisions meant for him in the J.J. Act, 2015. Or, he may abscond from his house and expose the entire family to the coercive measures which normally follow. The fourth stage is the stage of arrest wherefrom the provisions of J.J. Act, 2015 comes in force and its application comes in full swing in the fifth stage of post-arrest. Prior to reaching the third stage, the child in conflict with law has to either wait after second stage of registration of F.I.R. or he has to abscond or surrender to avoid complications for not surrendering. There is void between the second stage and fourth stage where the right of anticipatory bail of child in conflict with law does not operates. This Court finds that in the judgement of Shahaab Ali (Minor) (supra), this Court has considered the first stage of pre-recording of F.I.R. and the fourth and fifth stages of arrest and post-arrest but the Court is silent regarding the second stage of recording of F.I.R. and the third stage of pre-arrest stage of child in conflict with law. The arrest and post-arrest stages of a child in conflict with law come only after F.I.R. is lodged and then he is arrested, in between, he goes through two traumatic stages of remedilessness which is cause of concern in most of the cases argued before this Court.
11. The personal liberty is sacrosanct and a child in conflict with law living in his house with his parents and siblings cannot be permitted to remain under fear of arrest/detention and spend sleepless nights along with his family members waiting for his arrest/apprehension by police and for being given the benefit of beneficial provisions of J.J. Act, 2015. The fear of being apprehended any moment is worse than apprehension. The provisions of J.J. Act, 2015 have in practice not measured up to the expectations made from the Act. Most of the orders passed u/s 12 of the Act for a child in conflict with law are mechanical and not based on any reliable material gathered after objective consideration of the relevant factors mentioned in the J.J. Act, 2015. The bails are rejected relying upon only proviso to Rule 12(1) of the J.J. Act, 2015 and report of Probation Officers observing that the release of the child in conflict with law on bail is likely to bring him into association with known criminal or expose the said person to moral, physical or psychological danger or that the person's release would defeat the ends of justice. The reports of Probation Officers are mostly mechanical and not based on objective assessment of the condition of child in conflict with law as required by the Act.
12. A perusal of the proviso to Section 12(1) of the J.J. Act, 2015 shows that it grants power to the Juvenile Justice Board to deny bail to the child in conflict with law on any of the grounds mentioned therein. The phrase “person's arrest would defeat the ends of justice” is wide enough to deny bail to any person brought before the Board. The remedy of filing revision before this Court provided u/s 102 of the J.J. Act, 2015 after availing remedy of appeal u/s 101 of the J.J. Act, 2015 before the Children's Court are too time consuming. A revision cannot be heard by this Court without issuing notice to the informant and the notices are never served promptly on the informant so that the revision can be heard promptly. The revisions are mostly directed to be listed after service of notices on the informant and due to paucity of time and pressure of fresh cases, they are seldom taken up. The informant/opposite party in revision also avoids service of notice promptly. Either he is not found on given address or for other reasons, the notices are sent back unserved in number of cases, especially in the cases of false implication of child due to enmity.
13. Compared to this when an adult is implicated for any offence, he approaches this Court after rejection of his bail application by the Sessions Court and after giving two days notice of the bail application as per Chapter XVIII, Rule 18 of the High Court Rules to the Government Advocate, his bail application is heard and as per the merits of the case, the bail is granted or rejected. The fact remains that the major accused gets the hearing of his bail application in a much shorter time, if the Sessions Court rejects his bail application as compared to a child in conflict with law, whose bail application, if rejected by the Board or the Children's Court, takes a very long time, sometimes years in getting the bail application decided. Therefore, there is clear discrimination between the adult accused and a child in conflict with law in the time taken in consideration and grant of bail to a child in conflict with law as per the provisions of the J.J. Act, 2015, which is in violation of Articles 14 and 21 of the Constitution of India.
13. The second aspect of the matter is that the J.J. Act, 2015 is a beneficial provision but its application is more time consuming and complex. Therefore, where a child in conflict with law has been implicated for an offence which is prima facie not made out from the F.I.R. itself or from the other facts and circumstances, then the denial of pre-arrest bail to such an accused can be said to be against the object and purpose of the J.J. Act, 2015. The J.J. Act, 2015 has been enacted for the benefit of the child in conflict with law after he is arrested/apprehended and where a child in conflict with law is arrested then certainly the provisions of J.J. Act, 2015 will take care of him.
14. Under section 438 Cr.P.C., the protection of the rights of the child in conflict with law from pre-arrest bail is implicit, since Section 438 Cr.P.C. (U.P. Amendment) provides that where “any person” has reason to believe that he may be arrested on the accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction that in the event of a such arrest, he shall be released on bail (anticipatory). Therefore, Section 438 Cr.P.C. grants right to every person who has reason to believe that he may be arrested on the allegation of committing a non-bailable offence, he may apply for pre-arrest bail. There is no bar in the J.J. Act, 2015 for grant of anticipatory bail to a child in conflict with law. Section 1(4) of the J.J. Act, 2015 clearly provides that notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection in conflict with law, including (i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social integration of children in conflict with law. This Court in the case of Shahaab Ali (Minor) (supra) has taken the view that in view of Section 1(4) of J.J. Act, 2015, the provisions of Section 438 Cr.P.C. stand impliedly excluded. A bare perusal of Section 1(4) of the Act aforesaid shows that it is confined to the post-arrest stage of the child in conflict with law and not the pre-arrest stage. Therefore, Section 1(4) of the J.J. Act, 2015 does not excludes the application of Section 438 Cr.P.C. to the case of a child in conflict with law.
15. This Court in the case of Shahaab Ali (Minor) (supra) is clear about the law that once a child in conflict with law is arrested, he is required to be treated as per the provisions of J.J. Act, 2015. The scheme of the Act shows that whenever a child in conflict with law is apprehended, he is required to be produced before the Juvenile Justice Board within a period of 24 hours as per Section 10 of the J.J. Act, 2015. Under Section 12 of the J.J. Act, 2015, such a child has a right to apply for bail and under Section 13 of the aforesaid Act, information is send to the parent or guardian of the juvenile to be present before the Board.
16. Section 14 of the J.J. Act, 2015 provides that where a child alleged to be in conflict with law is produced before the Board, it shall hold an enquiry in accordance with the provisions of Act and may pass such orders in relation to such a child as it deems fit under Sections 17 and 18 of the J.J. Act, 2015. The inquiry under this section is to be completed within a period of four months from the date of production of the child before the Board and in case of heinous offence within three months from the date of production of child before the Board.
17. Section 15 of the J.J. Act, 2015 provides for preliminary assessment into heinous offences by Board regarding capacity of child in conflict with law to commit and understand the consequences of his act. Where the dispute regarding the age of such child arises, the matter has to be decided as per Section 94 of the J.J. Act, 2015, which is a time consuming process involving collection and production of evidence regarding the age of child in conflict with law.
18. Under Section 17 of the J.J. Act, 2015, order is passed by the Board after inquiry regarding the child not in conflict with law and order regarding child found to be in conflict with law is passed under Section 18 of the Act. Under section 15 of the Act, preliminary assessment of heinous offence is done by the Board and decision is taken as per Section 18(3) of the J.J. Act, 2015 to try the child as an adult by the Children's Court.
19. Above provisions show that they are akin to Chapter XII Cr.P.C. where the investigation is carried out by the Investigating Officer into the allegations made in the report of a cognizable offence and he collects evidence to arrive at a correct conclusion. Till the stage of inquiry u/s 14 of the J.J. Act, 2015, preliminary assessment into heinous offence u/s 15 of the Act and passing of order u/s 17/18 of the Act, presence of the accused is not warranted. Only after the order is passed u/s 18 of the Act directing the trial of the child in conflict with law for committing heinous offence by Children's Court, the presence of the child is necessary. Therefore, the child in conflict with law found involved in non-bailable offence, including heinous offence, can be granted right of seeking anticipatory bail u/s 438 Cr.P.C. till order is passed against him by the Juvenile Justice Board u/s 18(3) of the J.J. Act, 2015. After the order is passed against the child in conflict with law as per Section 18(3) of the J.J. Act, 2015 that there is need for trial of the child, hence, he is required to surrender and apply for bail u/s 12 of the J.J. Act, 2015. Regarding implication in other non-bailable offences also, such a right can be exercised by a child in conflict with law.
20. Power of arrest of accused before proceedings u/s 18(3) of the J.J. Act, 2015 and compulsion of being apprehended and subjected to Section 12 of the J.J. Act, 2015 for grant of bail cannot be justified since the scheme of Section 18(3) of the J.J. Act, 2015 provides for trial by Children's Court of only those children in conflict with law who are involved in heinous offence. Where such a child is found involved in non-bailable offence or serious offence as defined in the J.J. Act, 2015, he also cannot be denied the right to seek anticipatory bail till the inquiry u/s 14 of the J.J. Act, 2015 is completed by the Board. There can be no dispute with the ratio of this Court in the case of Shahaab Ali (Minor) (supra) which provides that after the post-recordal stage of the F.I.R, the scheme of J.J. Act, 2015 comes into force. However, in view of the fact that the aforesaid judgement, does not takes into account the fate of a child in conflict with law between the stages of recording of F.I.R and arrest/apprehension of the child in conflict with law, this Court is of the view that a child in conflict with law can apply for anticipatory bail before Children's Court or High Court as per Section 438 Cr.P.C. during pre-arrest stage and till enquiry against him u/s 14 and preliminary assessment into heinous offence u/s 15 of the J.J. Act, 2015 are completed and orders u/s 18(3) of the Act aforesaid are passed. Since Juvenile Justice Board is not the Court of Sessions, therefore, only the Children's Court can entertain application for anticipatory bail of a child in conflict with law.
21. For ready reference, Sections 14, 15, 17, 18 and 94 of the J.J. Act, 2015 are being quoted hereinbelow:—
Section 14 of the J.J. Act, 2015-Inquiry by Board regarding child in conflict with law-
(1) Where a child alleged to be in conflict with law is produced before Board, the Board shall hold an inquiry in accordance with the provisions of this Act and may pass such orders in relation to such child as it deems fit under sections 17 and 18 of this Act.
(2) The inquiry under this section shall be completed within a period of four months from the date of first production of the child before the Board, unless the period is extended, for a maximum period of two more months by the Board, having regard to the circumstances of the case and after recording the reasons in writing for such extension.
(3) A preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board.
(4) If inquiry by the Board under sub-section (2) for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated:
Provided that for serious or heinous offences, in case the Board requires further extension of time for completion of inquiry, the same shall be granted by the Chief Judicial Magistrate or, as the case may be, the Chief Metropolitan Magistrate, for reasons to be recorded in writing.
(5) The Board shall take the following steps to ensure fair and speedy inquiry, namely:—
(a) at the time of initiating the inquiry, the Board shall satisfy itself that the child in conflict with law has not been subjected to any ill-treatment by the police or by any other person, including a lawyer or probation officer and take corrective steps in case of such ill-treatment;
(b) in all cases under the Act, the proceedings shall be conducted in simple manner as possible and care shall be taken to ensure that the child, against whom the proceedings have been instituted, is given child-friendly atmosphere during the proceedings;
(c) every child brought before the Board shall be given the opportunity of being heard and participate in the inquiry;
(d) cases of petty offences, shall be disposed of by the Board through summary proceedings, as per the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
(e) inquiry of serious offences shall be disposed of by the Board, by following the procedure, for trial in summons cases under the Code of Criminal Procedure, 1973 (2 of 1974);
(f) inquiry of heinous offences,-
(i) for child below the age of sixteen years as on the date of commission of an offence shall be disposed of by the Board under clause (e);
(ii) for child above the age of sixteen years as on the date of commission of an offence shall be dealt with in the manner prescribed under section 15.
Section 15 of the J.J. Act, 2015-Preliminary assessment into heinous offences by Board-
(1) In case of a heinous offence alleged to haev been committed by a child, who has completed or is above th age of sixtgeen year, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of Section 18:
Provided that for such an assessment, the Board may take the assistance of experience psychologists or psycho-social workers or other experts.
Explanation-For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that the order of the Board to dispose of the matter shall be [appealable] under sub-section (2) of section 101.
Provided further that the assessment under this section shall be completed within the period specified in section 14.
Section 17 of the J.J. Act, 2015-Orders regarding a child not found to be in conflict with law-
(1) Where a Board is satisfied on inquiry that the child brought before it has not committed any offence, then notwithstanding anything contrary contained in any other law for the time being in force, the Board shall apass order to that effect.
(2) In case it appears to the Board that the child referred to in sub-section (1) is in need of care and protection, it may refer the child to the Committee with appropriate directions.
Section 18 of the J.J. Act, 2015-Orders regarding child found to be in conflict with law-
(1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,-- (a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian; (b) direct the child to participate in group counselling and similar activities; (c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board; (d) order the child or parents or the guardian of the child to pay fine: Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated; (e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and childs well-being for any period not exceeding three years; (f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and childs well-being for any period not exceeding three years; (g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home: Provided that if the conduct and behaviour of the child has been such that, it would not be in the childs interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.
(2) If an order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders to-- (i) attend school; or (ii) attend a vocational training centre; or (iii) attend a therapeutic centre; or (iv) prohibit the child from visiting, frequenting or appearing at a specified place; or (v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences.
Section 94 of the J.J. Act, 2015-Presumption and determination of age-
(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-- (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
22. This Court is of the view that the question whether a child in conflict with law, accused of a heinous offence or other non-bailable offences, is entitled to be granted the benefit of pre-arrest bail/anticipatory bail or not, after lodging F.I.R., deserves to be referred to a larger Bench consisting of more than one Judge to re-consider the ratio of the judgement of this Court in the case of Shahaab Ali (Minor) (supra) on the limited question whether the opening of limited window to the child in conflict with law for consideration of his anticipatory bail before the stage of lodging of F.I.R. deserves re-consideration and further opening of the window to include the stages of lodging of F.I.R, pre-arrest and inquiry u/s 14 of the Act and preliminary assessment into heinous offence u/s 15 of the J.J. Act, 2015 and order u/s 17/18 of the Act aforesaid, while entertaining the anticipatory bail application of such an accused. However, the anticipatory bail cannot be granted to child in conflict with law till the conclusion of trial since it would negate the very purpose of J.J. Act, 2015. It shall continue till the inquiry is conducted by Board regarding child in conflict with law is concluded as per Section 14 of the J.J. Act, 2015 and where required preliminary assessment into heinous offence u/s 15 of the J.J. Act, 2015 and orders under Section 17/18 of the Act aforesaid is passed deciding whether the child is in conflict with law or not. If the child is found in conflict with law, he will surrender and apply for bail as per Section 12 of the J.J. Act, 2015 regarding implication in heinous and other non-bailable offences.
23. Let this case be placed before the Hon'ble The Chief Justice for consideration of the following questions by a larger Bench consisting of more than one Judge:—
(i) Whether limited window opened by the judgement of this Court in the case of Shahaab Ali (Minor) (supra) for child in conflict with law confining his right to seek anticipatory bail before F.I.R is lodged against him deserves to be further opened to the stages where inquiry against such a child u/s 14 of the J.J. Act, 2015 and preliminary assessment into heinous offence u/s 15 of the J.J. Act, 2015, where needed, is concluded and he is found involved in heinous offence and his trial is transferred to Children's Court as per Section 18(3) of the J.J. Act, 2015?
(ii) Whether Section 1(4) of the J.J. Act, 2015 excludes the application of Section 438 Cr.P.C. to a child in conflict with law after the F.I.R. is registered against him as held by this Court in the case of Shahaab Ali (Minor) (supra)?
(iii) Whether the arrest/apprehension/bail of a child in conflict with law is necessary during the inquiry by the Board about the nature of offences alleged against him u/s 14 of the J.J. Act, 2015; during preliminary assessment into heinous offence by Board u/s 15 of the J.J. Act, 2015 read with exercise of power u/s 94 of the J.J. Act, 2015 for determination of age of child in conflict with law, where required and before passing of order u/s 17 of the J.J. Act, 2015 that child has not been found in conflict with law or u/s 18(3) of the J.J. Act, 2015 that the child in conflict with law has been found involved in commission of heinous offence?
(iv) Whether only after a child in conflict with law is found involved in heinous offence and other non-bailable offence and found to be juvenile by the Board, he should be directed to surrender and obtain bail as per Section 12 of the J.J. Act, 2015 and not all the children allegedly in conflict with law, arrested/apprehended be compelled to seek bail u/s 12 of the J.J. Act, 2015 before inquiry u/s 14 of the J.J. Act, 2015 and preliminary assessment into heinous offence u/s 15 of the J.J. Act, 2015 is concluded and order u/s 17/18 of the J.J. Act, 2015 is passed, wherein a child may not be found to be a child in conflict with law or juvenile at all?
(v) Whether there is presumption in the J.J. Act, 2015 that by lodging of mere F.I.R against a juvenile, he becomes a child in conflict with law who has committed an offence, without any enquiry, preliminary assessment into a heinous offence and determination of his age and his declaration of being involved in an offence and he is only required to obtain bail as per Section 12 of the Act aforesaid and cannot be granted anticipatory bail?
(vi) Whether the production of child in conflict with law before the Board for enquiry u/s 14 and preliminary assessment into heinous offence u/s 15 of the J.J. Act, 2015 where required, cannot be done while he is on anticipatory bail and his arrest/apprehension is compulsory?
24. Till the reference is decided by the larger Bench, the applicant, Mohammad Zaid, in the event of his apprehension/arrest by the police, in Case Crime No. 146 of 2019, under Section 323, 324, 307, 506 I.P.C., Police Station-Wasirganj, District-Budaun, shall be enlarged on interim anticipatory bail on the following conditions:—
(i) the applicant shall be released on interim anticipatory bail on execution of personal bond of Rs. 25,000/- by his parent/guardian and two sureties of like amount, one of whom shall be his parent or other close relative, till the inquiry is conducted and concluded against him u/s 14 of the J.J. Act, 2015, preliminary assessment into heinous offence u/s 15 of the J.J. Act, 2015 and order u/s 17/18 of the aforesaid Act is passed.
(ii) the parent/guardian of the applicant shall file undertaking to produce the applicant before the Juvenile Justice Board concerned as and when called upon to do so and if he is found involved in a non-bailable offence, including heinous offence, he will be produced before the Board concerned by his parent/guardian within a period of two weeks of such order u/s 18(3) of the J.J. Act, 2015 and he will apply for regular bail u/s 12 of the J.J. Act, 2015.
(iii) in case the parent/guardian of the applicant does not produces the applicant before Board concerned as per the condition no. (ii) aforesaid, the police would be at liberty to arrest the applicant forthwith and produce him before the Juvenile Justice Board concerned as per Section 10 of the J.J. Act, 2015.