Section 438 CrPC, a Child in Conflict With Law Can Seek Anticipatory Bail- Orissa High Court

The Orissa High Court, “children in dispute with the law” are eligible for anticipatory bail as described in Section 438 of the Code of Criminal Procedure, 1973.

The Juvenile Justice Act does not include “arrest,” hence anticipatory bail cannot be given because “anticipation of arrest” is a requirement for bail grant, according to the Single Judge Bench of Justice Sashikanta Mishra. The petitioners were allegedly captured snatching keys from the railway tracks in Dhamra port and fled the scene after being detected, according to a police report submitted by a security guard at the location. A case was filed under Sections 379/34 of the IPC based on this FIR, and it was subsequently investigated.

The petitioners asked for anticipatory bail at the Sessions Judge’s Court in Bhadrak under Section 438 of the Cr.P.C. since they were minors who had broken the law. The Court, however, questioned the plausibility of the application.

The Sessions Judge pointed out that many High Courts had conflicting and divergent opinions on this matter. He concluded that the provision under Section 438 of the Cr.P.C. does not apply to him because there is no fear of arrest in his situation because a minor cannot be detained. Therefore, the request for bail was turned down.

Because they were unhappy with the order, the children who were in disagreement with the law filed the current revision petition. Given the significance of the legal issue posed, the High Court designated Senior Advocate Dharanidhar Nayak as an amicus curiae to support the Court in this cause.

The Court stated right away that the word “person” as employed in Section 438 of the Criminal Procedure Code is a broad, all-encompassing phrase. As a result, it must be held to include all those who are anticipating arrest for a crime for which there is no possibility of a bond, as giving the word a more restricted definition would go against the legislative aim.

The Court below refused the petitioners anticipatory bail, according to Justice Mishra, partly because the JJ Act does not mention “arrest,” preferring to use the term “apprehension.” It was also pointed out that neither “arrest” nor “apprehension” are defined anywhere in the Criminal Procedure Code, the IPC, or the Judicial Act.

After taking everything into account, the court came to the conclusion that an application for anticipatory bail made under Section 438 of the Criminal Procedure Code by a minor who had run afoul of the law was legitimate in the eyes of the law.

Regarding the facts of the case, the court found that there is no claim in the FIR that the petitioners actually stole the items from the railroad, and there is also nothing in the FIR to demonstrate how the informant could determine their identities so they could be identified by their respective names in the FIR. Therefore, it approved their requests for anticipatory bail.

Subham Jena and others

vs

State of Odisha