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Thursday 12th of December 2019

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Anticipatory Bail And Juveniles: An Ambiguous Tale

Tuesday 25th of June 2019 | Asia, India
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Law pertaining to grant of anticipatory bail to juveniles is in a state of flux in India and the absence of the Supreme Court ruling has only added to the ambiguity. Various High Courts have delivered conflicting opinions on the grant of anticipatory bail to the juveniles. Recently, Madhya Pradesh High Court has opined that a juvenile is not entitled to move an application under Section 438 of Criminal Procedure Code (hereinafter Cr.P.C.) for anticipatory bail.

The idea of releasing a person on bail even before his arrest, was for the first time floated by the 41st Law Commission of India after it was realized that the influential individuals have been able to successfully implicate their political and business adversaries in false cases. To avoid disgrace and detention in jail of the persons falsely implicated, it was conceived that the bail could be granted before the arrest is made. Also, once it could be reasonably ensured that the person would not tamper with the evidence and would be present for the trial as and when required by the court, arrest in such a case would be unjust, unfair and deprive the accused of the right to liberty.

Denial of the anticipatory bail to the juveniles could have far-reaching consequences for the child including sending them to poorly maintained observation home, where life could take a turn for the worse. The authors are of the opinion that the grant of anticipatory bail to a juvenile is not only in accordance to the spirit of Juvenile Justice Act, 2015 (hereinafter, JJ Act) but it would be in the best interest of the child and carving an exception in would hamper the justice delivery system.

THE DECISION OF THE MADHYA PRADESH HIGH COURT

The honourable High Court in March this year has opined that the juvenile is not entitled to move an application under Section 438 of Cr.P.C. for anticipatory bail and only the Juvenile Justice Board (hereinafter, JJB) is solely authorized to exercise the powers pertaining to the juveniles under the scheme of Cr.P.C. thereby, excluding the jurisdiction of the High Court or the Sessions Court over such matters. The bench had denied anticipatory bail to juvenile accused of commiting an offence under Section 307 read with Section 34 of the Indian Penal Code, on the basis of 3 broad arguments. 

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  • International Juvenile Justice Observatory (IJJO). Belgian Public Utility Foundation

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  • Head Office: Rue Mercelis, nº 50. 1050. Brussels. Belgium

    Phone: 00 32 262 988 90. Fax: 00 32 262 988 99. oijj@oijj.org

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