A key component of the Juvenile Justice (JJ) Act of 2015's implementation is the Juvenile Justice Board (JJB). All JJ Act proceedings are subject to jurisdiction of the JJB, as per Section 8 of the Act. Only when a Section 19 order is necessary, or when an appeal or revision is being considered, may the Court of Sessions or the High Court intervene. Section 4 of the JJ Act laids down that a first-class judicial magistrate and two social workers, one of whom must be a woman, make up the JJB. The Act outlines the circumstances in which a person may not be eligible to serve on a board.

Furthermore, within 60 days of each member's appointment, the state government must guarantee that each member receives induction training. Section 12 of the JJ Act empowers the JJB to be in charge of deciding what to do when they find a young person who is in trouble with the law. Choosing whether to release the minor on bail or place them in a special home for rehabilitation is part of this process. Preliminary bail under Section 438 of the Act cannot be used to circumvent contact with the JJB, as multiple High Court rulings have consistently upheld.

The JJ Act's standard procedure is to grant bail, with or without sureties. Only the specific situations listed in Section 12 of the Act may result in the denial of bail. Additionally, the Act states that a child may not be imprisoned in any situation. Bailable and non-bailable offenses are not distinguished in Section 12. Bail must be granted with or without sureties; the denial of bail is not predicated on the strength of the case or the seriousness of the offense. The responsible police officer may place the child in an observation home if bail is refused. Additionally, the JJB might put the child in a safety or observation home. Within 24 hours of a child's apprehension, the JJB mandates that the child be produced.

The High court of Delhi on its own Motion v. State, Crl. Ref. 1 /2020 & W.P.(Crl.) 1560/2017 mandated that a child, even if they are not taken into custody, appear before the JJB within 24 hours of falling under the jurisdiction of the JJ Act. The JJB is given a lot of power and responsibility by the JJ Act and the Model Rules. If a case seems unfounded, the JJB may rule on it during the child's initial appearance in accordance with Rule 10(1)(i) of the Juvenile Justice (Care and Protection of Children) Model Rules 2016. The JJB has a crucial duty under Rule 10(2) to carry out a summary inquiry, which establishes the date of the subsequent hearing. In the event that the child is involved, the JJB is able to close the case.

The JJ Act does not expressly forbid the application of Section 439 of the Criminal Procedure Code (CrPC), although courts have interpreted this differently. While some courts maintain that the JJ Act should be interpreted in light of its goals as special legislation, others contend that the Act's advantages warrant juveniles' continued protection under general laws. According to a different viewpoint, the Act's goals would be compromised by permitting anticipatory bail.

Detention Nuances in the JJ Act: The Contrast Between "Arrest" and "Apprehension"
State representatives often argue that anticipatory bail is only meant for situations in which there has been a "apprehension of arrest" in opposition to applications submitted under Section 438 of the CrPC.[1] It would seem that Section 438's provisions are not applicable because the JJ Act, 2015 does not use the term "arrest" and clearly states in Section 12 that a juvenile may never be held in a lock-up or jail.

The line between "arrest" and "apprehension" has been maintained by multiple High Courts, but there have also been cases where this line has been ruled to be artificial and arbitrary. The Madras High Court, for example, found in the K Vignesh[2] case that the Legislature comprehensively understood Section 46 of Chapter V of the Code of Criminal Procedure, 1973, when it passed the JJ Act. As the Court pointed out, the word "arrest" would have been used rather than "apprehend" if the Legislature had meant for a police officer to have the power to detain a minor who was in violation of the law. Consequently, the purposeful use of "apprehend" is meant to restrict police tactics.

In Raman v. State of Maharashtra[3], the Court cited Sections 58 and 59 of the 1973 Code of Criminal Procedure, which refer to arrest in their text but use the word "apprehension" in their titles. According to the Court, both of these phrases are used interchangeably in the Code and both lead to a limitation of individual freedom. The conclusions of the Gurubaksh Singh Sibbia ruling should therefore also be applicable to minors.

In a similar vein, the Gujarat High Court determined that the line separating "arrest" from "apprehension" was artificial and arbitrary in Kureshi Irfan Hasambhai v. State of Gujarat[4]. The Court concluded that a combined reading of Sections 10 and 12 of the JJ Act indicates that the terms are meant to be synonymous after consulting the definitions of both terms found in dictionaries.

The Act's intention to distinguish itself from the term "arrest" as used in other statutes is highlighted by the use of the softer term "apprehension," despite certain similarities between the terms arrest and apprehension. To say that "apprehension" was only used to make the Act kid-friendly is a narrow interpretation. In summary, there are no typical repercussions for a "arrest"; instead, juvenile custody serves as a protective rather than punitive measure.

The criteria for a child care institution's (CCI) registration are spelled out in detail in the model rules. The regulations mandate that every CCI have both a management committee and a children's committee. According to these regulations, a CCI is required to offer separate housing for children belonging to different age groups, taking into consideration various factors like age, nature of the offense, degree of care required, physical and mental well-being, and duration of stay. A CCI must not resemble a lock-up or jail, according to Rule 29(2), which also describes the physical infrastructure that must be in place. According to Rule 32, all daycare centers must have a children's daily schedule that is created in conjunction with the committees representing the children and clearly posted.

In all institutions, each child must receive individual therapy as well as milieu-based interventions. A milieu-based intervention is a kind of recovery that establishes a supportive culture and atmosphere to help identify each child's potential and give them the freedom to make decisions about their lives. Children can grow and overcome their bad experiences thanks to this intervention's powerful emotional effects. Therefore, unlike a lock-up or jail, a CCI has a reformative and rehabilitative nature. According to the Madhya Pradesh High Court, facilities covered by Chapter VI of the 2016 Rules are similar to dorms for students, offering them education, recreation, medical attention, clothing, hygienic living conditions, and mental support.

Rationale for Permitting Anticipatory Bail Applications Under Section 438 CrPC:

• Procedural Challenges: Although conditions can be placed to guarantee the juvenile's appearance before the JJB, granting anticipatory bail does not always avoid the juvenile's interaction with the JJB.^[5]
• No Express Exclusion: It appears that the legislature did not intend to eliminate this remedy for juveniles because Section 438 does not contain an express bar.^[6]
• Detention versus Apprehension: Prioritizing "apprehension" over "arrest" leads to technical difficulties; therefore, legislation that is beneficial should be interpreted to safeguard individual liberties.^[7]
• Beneficial Legislation: The JJ Act seeks to enhance juvenile remedies rather than eliminate current ones.
• Laxity of JJBs: Predictive bail is a necessary relief because malfunctioning JJBs can cause psychological harm.

Arguments Against Enabling Anticipatory Bail Under Section 438 CrPC:

• Non-Obstante Clause: The JJ Act's Sections 1(4) and 12 provide extensive coverage of juvenile matters, restricting the applicability of the CrPC.
• Required bail versus. Non-Bailable Distinction: Since these offenses are not differentiated under the JJ Act, Section 438 is superfluous.
• Potential Harm: In violation of the JJ Act, anticipatory bail rejection may result in juvenile arrest.
• Important JJB Interaction: By granting anticipatory bail, the JJB's protective function is circumvented.
• Protective Character of Detention: Section 438 is unnecessary because the JJ Act's detention provisions are non-punitive.
• Differentiated Justice Systems: The JJ Act's unique justice approach is compromised by integrating CrPC remedies with it.

In conclusion, there is ongoing debate over whether Section 438 CrPC applies to cases involving minors. Although its application is supported by the artificial distinction between apprehension and arrest as well as the absence of an express exclusion, there are substantial obstacles due to the JJ Act's non-obstante provision and its all-encompassing approach to juvenile offenses. In order to achieve a harmonious understanding of the JJ Act and the CrPC, the interpretation must strike a balance between the needs of society, the state, and the juvenile.

End Notes:

1. Gurubaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565.
2. K. Vignesh v. State 2017 SCC OnLine Mad 28442.
3. Raman v. State of Maharashtra, ABA 277 OF 2022.odt.
4. R/Crl.Misc.App.No.6978 of 2021, decided on 09.06.2021.
5. Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.
6. Union of India v. Ashok Kumar Sharma, (2021) 12 SCC 674.
7. A.K. Gopalan v. The State of Madras AIR 1950 SC 27.