The Jaipur bench of the Rajasthan High Court has held that an anticipatory bail application under Section 438 of CrPC may be moved by a juvenile apprehending arrest.
The Applicant, a minor, had moved before the high court, aggrieved by the order of the subordinate court which dismissed his application for pre-arrest bail on the grounds of maintainability, stating that the Applicant was a minor and consequently, the question of his arrest did not arise.
He asserted that an anticipatory bail under Section 438 of CrPC at the instance of a child in conflict with the law was maintainable before the high court or the Court of Session. Reliance in this behalf was placed on Mr. X v. State of Kerala, LL.R. 2018 (3) Kerala 161.
Justice Mahendra Maheshwari held that as correctly pointed out by the Applicant, the law on maintainability of an anticipatory bail application moved by a child was settled in the aforementioned precedent. It was held therein that “merely for the reason that Section 10 of the Act provides for apprehending a child in conflict with law and not for arresting him, it cannot be held that an application under Section 438 of the Code by him/her is not maintainable”.
The court thus granted liberty to file a fresh application before the subordinate court and directed the subordinate court to consider the application on merits. The court also directed the police to not arrest the Applicant until the order of the subordinate court.