It is good to learn that the Gwalior Bench of Madhya Pradesh High Court in a learned, laudable, landmark and latest judgment titled Vidhi ka Ulaghan Karne Wala Balak Vs State of M.P. & Anr. in Criminal Revision No. 2108/2021 delivered as recently as on March 3, 2022 has held explicitly that a child in conflict with law (CCL) cannot be treated as an undertrial prisoner as contemplated under Section 436-A CrPC, since arrest/confinement/apprehension are not contemplated in Juvenile Justice (Care and Protection of Children) Act, 2015. It must be mentioned here that Justice Anand Pathak was essentially pertaining with a criminal revision preferred by a CCL, challenging the order passed by the lower court, whereby his appeal was dismissed and the order passed by the Juvenile Justice Board was affirmed. At the outset, the Bench while elaborating on the law laid down in this learned judgment is stated thus:
“(i) Section 1(4), 3,12 of Juvenile Justice (Care and Protection of Children) Act, 2015 as well as Rule 8 of Juvenile Justice (Care and Protection of children) Model Rules, 2016 do not contemplate release of Juvenile / Child in Conflict with Law after completion of period extending half of the maximum period of imprisonment, as per Section 436-A of Cr.P.C.
(ii) Child in Conflict with Law cannot be treated as under trial prisoner as contemplated under Section 436-A of Cr.P.C. because arrest/confinement/apprehension are not contemplated in Juvenile Justice (Care and Protection of Children) Act, 2015.
(iii) It is settled cannon of interpretation that a particular provision which is to be constructed/interpreted shall not be done in isolation but entire scheme of the Act is to be seen.
(iv) Decision of Division Bench of this Court in the matter of Ankesh Gurjar @ Ankit Gurjar Vs. The State of M.P., 2021 (1) MPLJ (Cri) 403 is referred and relied.”
First and foremost, the single Judge Bench comprising of Justice Anand Pathak of Gwalior Bench of Madhya Pradesh High Court puts forth in para 1 that, “Present petition is a criminal revision under Section 102 of Juvenile Justice (Care and Protection of Children) Act,2015 (for brevity “the Act of 2015”) filed by the petitioner/Child in Conflict with Law, against the order dated 14.10.2020 passed by VIth Additional Sessions Judge (Special Judge), Bhind District Bhind in Criminal Appeal No. 76/2020, whereby appeal preferred by the petitioner has been dismissed and order passed by Juvenile Justice Board, Morena has been affirmed.”
Simply put, the Bench then opines in para 2 that, “In the case in hand, it appears from the pleadings and submissions that Child in Conflict with Law (CICL) is in correction/remand home since 26.02.2020 and is facing proceedings before Juvenile Justice Board for alleged offence under Section 376 of IPC and Section 5/6 of Protection of Children from Sexual Offences Act. (hereinafter shall be referred to as “POCSO Act”).”
Be it noted, the Bench then mentions in para 12 that, “After due research of law Commission of India, incorporation of such provision by way of under Section 436-A of Cr.P.C. was suggested and later on included, for which it came into force by way of Code of Criminal Procedure (amendment) Act, 2005, whereas, Juvenile Justice (Care and Protection of Children) Act, 2000 (Predecessor of Act of 2015) is prior in time. Therefore, non obstante clause of Section 1(4) of the Juvenile Justice Act, 2000 (predecessor of the Act of 2015) did not have any occasion to consider Section 436-A of Cr.P.C.”
As we see, the Bench then observes in para 13 that, “Since the very concept originates from different judgments of Apex Court and based on Article 21 of the Constitution of India, therefore, bar, if any, under Section 1(4) of Juvenile Justice Act, 2015 impliedly exists, even then it cannot hold good. This is fundamental right of petitioner enshrined in the Constitution. As per the provisions of Act of 2015, certain presumptions have been raised in favour of juvenile in which Presumption of Innocence of juvenile is one of the attributes and same is applicable here. Since remand home also confines and restrains the activities of a juvenile, therefore, in fact his confinement deserves to be addressed as per Section 436-A of Cr.P.C. By relying upon the book Principles of Statutory Interpretation by Justice G.P. Singh, it is hereby submitted that historical facts in which certain law is germinated and developed must be kept in mind while interpreting the provisions of law.” Quite clearly, the Bench after listening to all sides and perusing the documents then envisages in para 16 that, “The instant case is a revision preferred by a Child in Conflict with Law (CICL) seeking his release from remand home on the basis of completing more than half of period of retention which ultimately a child would receive when he would be found to be in conflict with law. Petitioner/CICL is facing allegations for offence under Section 376 of IPC. As per submissions of learned counsel for petitioner, CICL appears to be 14 years of age.”
It is worth mentioning that the Bench then envisages in para 17 that, “Section 1 (4) of Act of 2015 appears to have been incorporated to bring all pervasive nature of application of Act of 2015 in respect of all matters concerning children in need of care and protection and children in conflict with law those matters include all aspects; right from Apprehension and Detention to Social Reintegration. Said section is reiterated for ready reference:-“1. Short title, extent, commencement and application.- (1) xxx xxx xxx
(2) xxx xxx xxx
(4) 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 and children in conflict with law, including-
(i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social reintegration of children in conflict with law;
(ii) procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection.””
Of course, the Bench then states in para 18 that, “Similarly, Section 5 of Cr.P.C. was referred by the Amicus curiae which is reproduced as under:-“5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.””
Needless to say, the Bench then stipulates in para 19 that, “A conjoint reading of Section 1(4) of Act of 2015 as referred above and Section 5 of Code of Criminal Procedure and while going through the various provisions of Act of 2015 and taking aid of the maxim “generalia specialibus non derogant” which means “special things derogate from general things”, it appears that if a special provision is made on a certain matter, the matter is excluded from the general provisions, then picture emerges regarding prevalence of Section 1(4) over any other provisions of law.”
Broadly speaking, the Bench then states in para 20 that, “Not only this, it is the settled canon of interpretation that a particular provision which is to be constructed/interpreted shall not be done in isolation, rather it is the entire scheme of the Act which is to be taken into consideration as a whole, which is unequivocally enunciated in the case of Indore Development Authority Vs. Shaildra (dead) through Lrs. And Ors., (2018) 3 SCC 412 and in the case of Godawat Pan Masala I.P. Ltd. & Anr. Vs. Union of India & Ors., ( (2004) 7 SCC 68; wherein, the Apex Court observed as under:-“It is an accepted cannon of Constructions of Statutes that a statute must be read as a whole and one provisions of the Act should be construed with reference to other provisions of the same act so as to make a consistent, harmonious enactment of the whole statute. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed, but to the scheme of the entire statute. The attempt must be to eliminate conflict and to harmonise the different parts of the statute for it cannot be assumed that Parliament had given by one hand what it took away by the other. (See in this connection Commissioner of Income Tax Vs. Hindustan Bulk Carriers, AIR 2002 SC 3491 and CIT Central, Calcutta Vs. National Taj Traders, 1980 AIR 5485.
This Court in O.P. Singla and Anr. Vs. Union of India and Ors., 1984 AIR 1595 (para 17) said:
“However, it is well recognised that, when a rule of a section is a part of an integral scheme, it should not be considered or construed in isolation. One must have regard to the scheme of the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or more of them. As isolated consideration of a provision leads to the risk of some other inter-related provision becoming otiose or devoid of meaning.””
Most significantly, the Bench then explicitly holds in para 22 that, “Conjoint reading of Section 3 (xii) and (xiii) with Section 12 as well as Rule 8 of the Juvenile Justice (Care and Protection of children) Model Rules, 2016 reveals that apprehension/detention of the child is an exception and in fact except where heinous offence is alleged to have been committed by the child or committed jointly with adults, no FIR shall be registered and in that condition logical inference is that registration of FIR, investigation, filing of charge-sheet and trial as contemplated in Cr.P.C. appear to be ousted prima facie, although at some places some minor overlapping of expressions exists. One exception appears to be carved out in Section 15 in cases of heinous offence committed by child between 16 to 18 years of age but in that case also, Children’s Court shall try CICL. As explained earlier, primary purpose of Act of 2015 is to reform or a repatriate the child in to society and not of deterrence or retributive qua child.”
As a corollary, the Bench then also adds in para 23 that, “For this reason even when the child is assessed to be tried as an adult is not jointly tried with the adult co-accused (Section 23 of the Act of 2015) nor is tried by the regular Courts of law but by Children Courts as per Sections 15 and 19, so that child friendly atmosphere may prevail in that Children’s Court.”
Most forthrightly, the Bench then holds in para 24 that, “Perusal of Section 1 (4) although gives an impression that apprehension, detention or imprisonment etc. are contemplated by the legislature while enactment, but when it is tested on the anvil of Section 12 of the Act of 2015 vis-a-vis provisions of Cr.P.C., then Division Bench of this Court ironed out the creases in the case of Ankesh Gurjar (supra) and held that concept of arrest/apprehension in a police lock-up/jail as contemplated in Chapter V of Cr.P.C. is not recognized in the Scheme of Act of 2015. Therefore, juvenile is not lodged in any police lock-up and jail, therefore, benefit of anticipatory bail is not available to him in Act of 2015. Very concept of “Apprehension or Arrest” has been negatived by the Division Bench of this Court and therefore, as per the legal mandate, Juvenile is never under confinement by way of arrest (pre or post trial) and when he is not arrested under the Act of 2015,then Section 436-A of Cr.P.C. does not come in to play. Words Investigation, Inquiry or Trial as contemplated in Cr.P.C. are not borrowed in letter and spirit in Act of 2015.”
Adding more to it, the Bench then specifies in para 28 that, “On close scrutiny, it appears that Act of 2015 nowhere, contemplates imprisonment for such period which is being posed in the present case. It is an Act for the welfare of children and laid stress over Principles as enumerated in Section 3 of Act of 2015. It is being guided by the said spirit and objects. Said Act nowhere, contemplates imprisonment as a way of punishment or as a way of retribution to the crime allegedly committed by a CICL.”
It is worth noting that the Bench then hastens to add in para 29 that, “When relevant Law itself desist from imprisonment or arrest then the theory of suffering more than half of the maximum period of imprisonment gets frustrated. In short, Section 436-A of Cr.P.C. itself does not support the arguments advanced by petitioner.”
Most remarkably, the Bench then clearly holds in para 30 that, “If the controversy is seen from the vantage point of judgment delivered by Division Bench of this Court in the case of Ankesh Gurjar (supra) then also it is legally established that CICL can never be arrested or apprehended and therefore, valuable right of anticipatory bail is not even contemplated in the Act of 2015. Thus, provisions of Section 436-A of Cr.P.C. is not applicable in the present set of facts.”
More precisely, the Bench then holds in para 31 that, “In cumulative analysis, this Court is of the considered opinion that when the promulgation of the special Act meant to treat children in specific manner, then bringing analogy from other statutes would overlap the remedies and may hamper the very object and spirit of Act of 2015.”
For clarity, the Bench then states in para 32 that, “Shri Sanjay Kumar Sharma raised his arguments on the basis of judgment of Apex Court in the case of Hussain Ara Khatoon (supra) and submitted that this judgment would apply in the present set of facts. He tried to pick up the thread from the principles as enumerated in Section 3, specially Principle of Presumption of Innocence but that principle is universal principle in criminal jurisprudence and on the basis of said presumption only, provisions of Cr.P.C. would not be attracted automatically.”
In addition, the Bench then also points out in para 33 that, “According to him, remand home also confines the activities of juvenile, therefore, it is to be considered as confinement as per Section 436-A of Cr.P.C. but that analogy would lead to anomalous condition because when the other provisions of Cr.P.C. are specifically ousted and when principles of Deinstitutionalization and Repatriation are General Principles to be followed in the Act of 2015 and when Community Service/Creative Pursuits are contemplated as reformatory measures, then the confinement of child in remand home cannot be construed just like confinement of under trial in jails/prisons. Therefore, those arguments, although look attractive but lacks merit. Therefore, no benefit can be given to a child in conflict with law as per Section 436-A of Cr.P.C.”
While clearing the air, the Bench then notes in para 34 that, “However, non application of provision of Section 436-A does not mean that Juvenile cannot be repatriated to his family and community at all, but said order can always be made even before such completion of period on individual facts of the case.”
In context of this case, the Bench holds in the next para that, “Coming to the present case, from the case diary, it appears that petition is aged 14 years and is facing allegations of commission of offence of rape of a girl aged 3 years. His arrest memo indicates his age as 14 years and medical report supports allegations of prosecution in specific terms, therefore, case of the petitioner lacks merits at this stage. He may renew his prayer later on.”
Very clearly, the Bench then holds in para 35 that, “In view of the discussion made about, questions as formulated above deserve to be answered in negative and child in conflict with law can not be treated as under trial prisoner as contemplated under Section 436-A of Cr.P.C. and cannot be released after completing half of total period of detention of three years in special home to avail the benefit of Section 436-A of Cr.P.C.”
Finally, the Bench then holds in para 37 that, “Resultantly, revision petition sans merits and is hereby dismissed. Petitioner may take keen interest in positive and creative pursuits during rehabilitation.”
In a nutshell, the single Judge Bench of Justice Anand Pathak of Gwalior Bench of Madhya Pradesh High Court has made the whole picture totally clear. From the aforesaid discussion, it is as clear as broad daylight that a child in conflict with law can’t be treated as under-trial prisoner under Section 436-A CrPC.Sanjeev Sirohi