XXXX vs State Of Kerala

A. Badharudeen, J

This is a petition filed under Section 438 of the Code of Criminal Procedure, by the petitioner, who is the 2nd accused in Crime No.1031/2022, who is a juvanile, where he alleged to have committed offences punishable under Sections 141, 144, 148, 323, 324, 307 and 506 of Indian Penal Code, and the petitioner seeks pre-arrest bail.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

The learned counsel for the petitioner would submit that on Christmas day, i.e., on 25.12.2022 at about 7:35 p.m., while the 1st accused along with his friends, inclusive of the 2nd accused/the petitioner herein, were talking together in the late evening, after celebrating the Christmas, the defacto complainant and his relative one Babu questioned the 1st accused and his friends and the same resulted into push and pull between the two groups. Soon, Babu, ran away and in consequence thereof, he fell down and sustained injuries.

The learned counsel for the petitioner, submitted that the petitioner is a juvanile, aged 16 years and, therefore, as per Section 12 of the Juvanile Justice (Care and Protection of Children) Act, 2015, (hereinafter referred as 'JJ Act', for short), he is liable to be released on bail, by the Juvanile Justice Board.

However, the petitioner apprehends that if he moves for bail before the Juvanile Justice Board, the Juvanile Justice Board may exercise the powers provided under the proviso to Section 12 of JJ Act. Accordingly, the learned counsel for the petitioner pressed for grant of Anticipatory Bail.

The learned Public Prosecutor opposed the bail and filed report of the Investigating Officer stating that there is specific allegation against the petitioner that he had used a wooden stick to attack the defacto complainant and, therefore, his arrest, custodial interrogation, recovery of weapon are essential to have a meaningful investigation and successful prosecution.

The learned counsel for the petitioner placed a decision of this Court reported in [2018 (3) KLJ 319] X v. State of Kerala, where this Court held that there is no provision in the Act which either expressly or by necessary implication excludes the applicability of Section 438 of the Code, which provides for granting anticipatory bail. The Act does not contain any special provision dealing with granting of anticipatory bail to a child in conflict with law. Where no special provision is made under the Act with regard to any particular matter, the provision contained in the Code in that regard shall be applicable. The Act does not contain any provision which excludes the general application of the provisions of the Code as such. Wherever the legislature intended to give overriding effect to the statutory scheme of the Act over the provisions of general application contained in the Code, it has been specifically provided so.

On going through the facts of this case, dealt by this Court in the above decision, the overt act at the instance of the juvanile is confined to that of wrongfully restrained the victim and, there was no allegation that he had used any weapon to attack the victim. Therefore, the facts of the present case is totally different from the facts dealt by this Court in the above decision.

Therefore, I am inclined to dispose of this Anticipatory Bail application with direction to Juvanile Justice Board to consider the bail plea at the instance of juvanile, within the mandate of Section 12 of JJ Act and in accordance with law, if he surrenders and move for bail, within a period of seven days from today.

It is specifically ordered that this Court in no way interfered with the statutory discretion of the Juvanile Justice Board in exercising the power as per the proviso to Section 12 of the Juvanile Justice Act.