1. The petitioner, a minor aged 14 years represented by his father, filed this petition for anticipatory bail in the event of his arrest in Crime 659/2000 of Thalassery Police Station. The above crime was registered against six persons including the petitioner alleging commission of offences under Ss. 143, 147, 148, 448 and 302 r/w. 149 IPC.
2. According to we prosecution six persons trespassed into the workshop where deceased Rajesh, Nandakumar (the first informant) and others were working, by about 10.30 am. on 26.10.2000. All the above six accused were armed with weapons like swords, chopper, chisel etc. and they attacked Rajesh inflicting several incised wounds. Further they attempted to attack others including Nandakumar and all of them ran off from the scene and hence could save their lives. As a result of the severity of the injuries inflicted on Rajesh, he died. It was further alleged that the deceased was an activist of the C.P.I.(M) whereas all the accused were B.J.P./R.S.S. activists and the murder was out of political rivalry. It was further alleged that the petitioner was the 4th accused in the crime and he attacked the deceased with a sword and inflicted injuries on him.
3. The main argument advanced by the learned counsel for the petitioner was that the petitioner, being a minor below the age of 16 years, is entitled to anticipatory bail in view of the first proviso to S. 437(1) Cr.P.C. The learned Public Prosecutor submitted that S. 437( 1) applies only when the accused is produced or when he appears before court and applies for bail and the above provision does not prohibit the arrest of an accused who is a minor. Reliance was placed on the different provisions in the Juvenile Justice Act regarding the grant of bail to a juvenile accused. S. 18 of the Juvenile Justice Act, 1986 deals with the bail and custody of juveniles. That above provisions would make it clear that there was no total prohibition of arresting an accused who was below the age of 16, but the prohibitions were only in respect of detaining such persons in prison. Where a person is alleged to have committed an offence of murder, anticipatory bail cannot be granted as a matter of course. The relevant considerations governing the grant of anticipatory bail under S. 438 Cr.P.C. are materially different from those when an application for bail is filed by an accused who is arrested and produced. In AIR 1985 SC 969 the Supreme Court held that when a person is accused of an offence of murder, the court has to be careful and circumspect in entertaining an application for anticipatory bail and there should be some compelling reasons for grant of the same. The Supreme Court in State Rep. by the C.B.I. v. Anil Sharma (1997 SCC (Crl.) 1039) considered the importance of custodial interrogation and held:
"Custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under S. 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has 10 presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."
The accused has to be questioned as to the weapon used by him. Other details are also to be elicited from him. The grant of anticipatory bail is on considering the nature of the allegations, gravity of the offences and various other circumstances. The petitioner is alleged to have been a member of the unlawful assembly and participated in the murder of a person who was working in the workshop, joining with five other non juvenile accused. Further, it is specifically alleged that the petitioner was holding a sword with him and he inflicted injuries on the deceased. When such allegations are there, anticipatory bail cannot be granted solely because the accused happened to be a minor below the age of 16.
4. An argument was advanced by the learned counsel for the petitioner that the accused had not participated in the above crime and his name had been falsely implicated. It was further argued that the name of the accused was not in the F.I. Statement and his name had been included subsequently. The C.D. was also perused. The C.D. would reveal that the name of one of the accused was there in the F.I. Statement and the subsequent investigation had revealed the role of the petitioner also in the above crime and he had inflicted injuries on the deceased by cutting with a sword. Hence I do not think that the above argument advanced by the learned counsel can be accepted. No reasons are there for foisting a case against a minor if in fact he had not participated in the above crime.
5. The learned counsel for the petitioner placed reliance on a decision of the Supreme Court in Sheela Barse v. Union of India (AIR 1986 SC 1773) wherein it was held that the children should not be kept in jail. It was further held that the State Government must set up necessary remand homes and observation homes where children accused of offences can be lodged pending investigation and trial and if the State Government has not got sufficient accommodation in its remand homes or observation homes, the children should be released on bail instead of being subjected to incarceration in jail. The above decision also do not prohibit the arrest of a minor accused alleged to have committed an offence. The prohibition is only with respect to the remand of the accused in jail where hardened criminals are detained. The object of remanding the minors to remand homes or observation homes where children accused of offences alone are remanded, is that they shall not mingle with hardened criminals who are there in the ordinary jail. Here is a case where the accused along with five other non juvenile accused committed the atrocious crime of murdering one Rajesh at 10.30 am while the deceased was working in the workshop. The grant of anticipatory bail and allowing the petitioner at large would in fact pave facilities for him to mingle with other accused who are not juveniles. Considering the nature and gravity of the offence and also the mode of executing the crime, I do not think that it is a fit case where anticipatory bail can be granted.
6. S. 18 of the Juvenile Justice Act deals with bail and custody of juveniles. Sub-s. (1) of S. 18 says that if a juvenile accused is arrested or detained or appears or is brought before the Juvenile Court, such person can be released on bail, but shall not be released on bail if there appear reasonable grounds for believing that the release is likely in bring him into association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice. Sub-s.(2) of S. 18 prescribes the procedure when a juvenile accused is arrested by the officer in charge of the police station. If the accused is arrested and is not released on bail, HE shall cause the accused to be kept in an observation home or a place of safety in the prescribed manner until he can be brought before the Juvenile Court. Sub-s. (3) of S. 18 says that the Juvenile Court shall, instead of committing such persons to the prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the enquiry regarding him as may be prescribed in the order. When a juvenile is arrested, the officer in charge of the police station has to inform the parent or guardian about the arrest and other details as per S. 19 of the above Act. The enquiry has to be conducted in accordance with S. 20 of the Act in the event of a charge is laid against the juvenile. Thus a consideration of the different provisions of the Juvenile Justice Act also would reveal that if a juvenile accused is arrested, he has to be produced before the Juvenile Court and I do not think that there is any prohibition from arresting a juvenile accused. The prohibition is only with respect to the remand of such juvenile accused to a prison where other hardened criminals are detained. Anticipatory bail can be granted on considering the gravity and the nature of the offence and all other relevant circumstances of the case and cannot be granted as a matter of course solely because the accused happened to be a juvenile. Considering the nature and gravity of the offences alleged to have been committed by the minor and the circumstances of the case, I do not think that it is a proper case where anticipatory bail can be granted though the petitioner is a juvenile.
In the result this petition is dismissed.