In the matter of Krishna Garai and Others

Apprehending arrest in connection with Bolpur Police Station Case No. 01 of 2016 dated 02.01.2016 under Sections 304/34 of the Indian Penal Code, this application for anticipatory bail has been filed under Section 438 of the Code of Criminal Procedure.

Defence counsel submits that there was a long standing dispute between the petitioners and the family of the victim, who are co-sharers. On the date of incident, an altercation took place between the petitioner no. 1 and the victim. Altercation was not such as to cause the death of the victim but the victim died and his brother filed the complaint involving the petitioners herein. The petitioner no. 1 is the principal accused, the petitioner no. 2 is his 13 year old daughter studying in Calss IX and the petitioner no. 3 is the wife of the petitioner no. 1. In no way they are involved in the alleged offence and have been falsely implicated due to land dispute. The application under Section 438 of Cr. P. C. is maintainable by the petitioner no. 2 and despite being a minor she need not approach the Juvenile Justice Board for grant of bail. In view of Sections 2(k) and 2(l) of the 2000 Act, Section 6(2) also empowers the High Court and the Court of Sessions with the powers conferred on the Juvenile Justice Board in proceedings before it in appeal, revision or otherwise. The term �otherwise� has been retained also in the 2015 Act and would mean an application filed under Section 438 Cr. P.C. Section 12 deals with grant of bail to juveniles. Section 437(1) deals with a situation similar to Section 12. Section 52 of the 2000 Act deals with appeals before the Court of Sessions. Section 438 Cr. P. C. stands on a different footing and the opening words of Section 438 Cr. P. C. is "where any person has reason to believe. ��Any person�� has not been defined under the 1973 Act but ��person" has been defined under Section 11 IPC to include any company or association or body of persons incorporated or not. Section 10 has defined man and woman a person of any age. Therefore any person would mean a man or woman of any age irrespective. Section 303 of the Code of Criminal Procedure gives all persons the right to defend himself through a pleader of his choice and the petitioner no.2 has exercised her choice by execution of Vakalatnama and appointing a pleader. Chapter 14 of the Appellate Side Rules of this High Court and in particular Rule 2 permits an advocate to appear for any person in any court provided a warrant of attorney (Vakalatnama) in writing has been executed with the signature of such person. In the instant case the petitioner no. 2 has signed such Vakalatnama. Rules 28 and 29 of the Appellate Side Rules be also considered. As the Code of Criminal Procedure does not impose a bar on the petitioner no. 2 to file an application under Section 438 Cr.P.C., orders be passed in respect of the petitioner no. 2 in this application.

Reliance is placed on 2010 SCC On Line MP 641, unreported decision of Karnataka High Court in Criminal Petition No. 1595 of 2014(Madhu G. L. v. The State of Karnataka), unreported decision of Madhya Pradesh High Court (Gwalior Bench) in Satendra Sharma v. The State of Madhya Pradesh, unreported decision of Madras High Court in Crl. O. P. No. 23992 of 2015 (Minor Y.Pathe Khan v. The State), and 2016 SCC OnLine Madras 151(M. Khannadasan v. State of T. N.) for the proposition that an application filed under Section 438 Cr. P.C. is not maintainable although from the said judgement it will appear the petitions were filed by the minors themselves. Reliance is placed on 2005 CRI.L.J. 3271, 2007 CRI. L.J. 3047 and 2013 CRI. L. J. 851 for the proposition that an application under Section 438 Cr. P. C. is maintainable. Therefore orders be passed as sought.

Counsel for the State produces the case diary and takes us to the statement recorded under Section 161 Cr. P. C. at pages 19 to 23, 27, 29, 30, 58 and 59. Post Mortem report at page 65 and injury report at page 33 be also looked into. It is also submitted that the application in respect of the petitioner no. 2 is not maintainable in view of Sections 10 and 12 of the 2000 Act.

Having considered the submission of the parties and on scrutiny of the Case Diary sufficient material exists to reject this application on behalf of the petitioner nos. 1 and 3. The petitioner no. 2 is aged 13 years and is a juvenile. The Juvenile Justice (Care and Protection of Children) Act 2000 has been promulgated to deal with juveniles, who are in need of care and protection and in conflict with law. The issue of grant of bail has also been provided for by insertion of Section 12 in the 2000 Act. The said Act dealing with juveniles was promulgated in the year 2000 when the 1973 Act was very much in existence and cannot be said that the legislature or its member did not consider the 1973 Act. In fact it was in the 1973 itself that the legislature had addressed itself to such a situation in Section 4(2) Cr. P. C. and Section 5 the saving clause.

Saving clause for convenience sake is as follows :

"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."

The 2000 Act is a special Act carved out from the 1973 Act and meant especially for juveniles. This Act therefore will prevail over the 1973 Act and having held that the 2000 Act will prevail over the 1973 Act this application on behalf of the petitioner no. 2 is not maintainable and is dismissed as not maintainable. The decisions cited for the proposition that an anticipatory bail application is maintainable will not apply as in 2005 CRI L.J. 3271 it was held that the juvenile would be entitled to file an application under Section 439 Cr. P. C. only after he had exhausted remedy available under Section 12. In fact an application had been filed in the reported decision under Section 12 of 2000 Act. The said case is therefore distinguishable on facts as in the instant case no application under Section 12 has been filed. 2007 CRI L.J. 3047 is distinguishable on facts as it was dealing with the Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 and the 2000 Act. The said 1989 Act is not in question in the said case. In 2013 CRI L.J 851 Section 4(2) Cr. P. C. and the saving clause being Section 5 Cr. P. C. were not considered.

In view of the aforesaid this application fails and is dismissed.

Liberty is given to the petitioners to approach the appropriate forum, if so advised.

Certified copy of this order, if applied for, be given to the parties on priority basis.