‘Child in conflict with law cannot be arrested, only apprehended’

The clarification is based on a reference made by the then Chief Justice of Madras High Court, Sanjay Kishan Kaul, to the Division Bench comprising Justice S Nagamuthu and Justice Anita Sumanth to answer the question of law as to whether an application seeking anticipatory bail under section 438 of the CrPC at the instance of a juvenile in conflict with law as per Juvenile Justice (Care and Protection of Children) Act, 2000 is maintainable before the High Court or before the Sessions Court.

Justice Nagamuthu, who penned the judgement, held that “A deep reading of the provisions of Juvenile Justice (Care and Protection of Children) Act, would make it crystal clear that no police officer has been empowered to arrest a child in conflict with law and instead he has been empowered only to apprehend a child in conflict with law. One can understand without any doubt whatsoever that a child in conflict with law cannot be arrested and thus there cannot be apprehension of arrest and so an application of anticipatory bail at the instance of child in conflict with law either before the High Court or before the Court of Sessions is not maintainable.” 

The judge further held that “Had it been the intention of the Legislature, that a police officer should be empowered to arrest a child in conflict with law the legislature would have very well used the expression ‘arrest’ instead of using the expression ‘apprehend’ in the Juvenile Justice act. Legislature in our considered view thus did not want to empower the police to arrest a child in conflict with law and consciously omitted to use expression ‘arrest’.” 

However, the judge on stating that the child in conflict with law cannot be left free in the interest of child as well as society in his order said, “The Legislature has empowered the police to simply apprehend the child in conflict with law and immediately without any delay cause his production before the Juvenile Justice Board. The Board has also not been empowered to pass any order of remand of the child either with the police or jail.”