Child in Conflict with Law cannot be treated as under trial prisoner as contemplated under Section 436-A of CrPC: Madhya Pradesh High Court

Read Order: Vidhi ka Ulaghan Karne Wala Balak V. State of M.P. & Anr.

Pankaj Bajpai

Gwalior, March 8, 2022: Opining that the primary purpose of the Juvenile Justice Act, 2015 is to reform or a repatriate the child in to society and considering that no benefit can be given to a child in conflict with law as per Section 436-A of CrPC, the Madhya Pradesh High Court (Gwalior Bench) has declared that 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 CrPC.

The Single Judge Anand Pathak observed that Child in Conflict with Law cannot be treated as under trial prisoner as contemplated u/s 436-A of CrPC because arrest /confinement/ apprehension are not contemplated in Juvenile Justice (Care and Protection of Children) Act, 2015.

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, added the Single Judge. 

The observation came pursuant to 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. 

The background of the case was that the Child in Conflict with Law (CICL) is in correction/remand home since Feb 26, 2020 and is facing proceedings before Juvenile Justice Board for alleged offence u/s 376 of IPC and Section 5/6 of Protection of Children from Sexual Offences Act (POCSO). 

The counsel for petitioner therefore prays for release of CICL on the ground of period of retention in remand/correction home, and raised the legal question that as per provision of Section 436-A of CrPC, petitioner suffered more than two years of incarceration, therefore, he ought to be released on bail because maximum retention/detention for CICL in remand home can be three years and since the petitioner has completed more than half of the period of detention, therefore, his case be considered for bail. 

After considering the submissions, Justice Pathak found from a conjoint reading of Section 1(4) of Act of 2015 and Section 5 of CrPC and taking aid of the maxim “generalia specialibus non derogant” which means “special things derogate from general things”, that 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.

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 CrPC appear to be ousted prima facie, although at some places some minor overlapping of expressions exists, observed the Single Judge. 

Justice Pathak highlighted that 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. 

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, added the Single Judge. 

The High Court further observed 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.

“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”, added the Court.

Accordingly, the High Court held that child in conflict with law cannot be treated as under trial prisoner as contemplated u/s 436-A of CrPC 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 CrPC.