Juvenile Accused Can Seek Anticipatory Bail U/S 438 CrPC: Calcutta High Court

The Calcutta High Court has held that an application for anticipatory bail under Section 438 CrPC is maintainable even when filed by a juvenile/child in conflict with law. The Court concluded that the Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ Act”) does not exclude the operation of pre-arrest bail provisions, and that denying such access would violate the child's fundamental right to personal liberty.This decision was delivered by a three-judge Larger Bench comprising Justice Jay Sengupta, Justice Tirthankar Ghosh, and Justice Bivas Pattanayak, to whom the matter was referred by the Chief Justice after a divergence in opinion of coordinate benches. The court said:“I am of the opinion that an application for pre-arrest bail filed by a juvenile or a child in conflict with law in terms of Section 438 of the Code of Criminal Procedure, 1973 is maintainable.""It would be rather preposterous to accept a proposition that a special legislation meant for the benefits of juveniles like the Act of 2015 can actually take away a valuable right of pre-arrest bail given to any citizen including juveniles or children in conflict with law in a general law like the Code of 1973,” the bench added.The reference arose from an anticipatory bail petition filed by four minors implicated in Raghunathganj P.S. Case No. 12/2021 under Sections 341, 325, 326, 307, 302, 34 IPC. The application (CRM 2739 of 2021) was earlier heard by a Division Bench (Justices Arijit Banerjee & Bivas Pattanayak), which dismissed the petition on the ground that juveniles cannot invoke Section 438 CrPC, but simultaneously noted a conflicting judgment in Miss Surabhi Jain (Minor), CRM 405/2021, which held that a juvenile can seek anticipatory bail. Proceedings before the Larger benchThe petitioners argued that the JJ Act regulates post-apprehension stages (Sections 10 & 12), but is silent on pre-apprehension protection. It was argued that Section 438 CrPC, flowing from Article 21, protects all persons—including juveniles—against arbitrary deprivation of liberty and that no provision in the JJ Act expressly excludes anticipatory bail, unlike statutes such as the SC/ST Act.It was stated that the "apprehension” of a juvenile is effectively equivalent to “arrest,” and therefore, anticipatory bail must remain available. Counsel for the state and Union seemingly concurred with the view of the petitioners and argued that Article 21 safeguards would apply uniformly to all regardless of age and that the JJ Act does not override Section 438 CrPC since no inconsistency exists between the statutes.It was stated that children cannot be left remedy-less, and that pre-arrest bail and JJ Act provisions operate in distinct spheres.Court's findingsNo conflict between JJ Act and Section 438 CrPCThe Bench held that the JJ Act governs procedures after a child is apprehended, while Section 438 CrPC applies before such apprehension. Therefore, there is no inconsistency that would trigger the JJ Act's overriding effect as a special law. “Such measures as are meant merely to avoid sending a child in conflict with law to regular custody cannot be a surrogate for pre-arrest bail, which ensures a complete relief from any such curtailment of liberty,” the court held.Relying on Supreme Court precedent, the Court held that “arrest” is to be understood broadly as any act of restraining liberty. Apprehending a child equally amounts to curtailment of liberty, attracting constitutional protections, including pre-arrest bail.JJ Act is a beneficial legislation, cannot curtail a fundamental rightThe Court emphasised that it would be “preposterous” to interpret a welfare statute as extinguishing a child's right to seek anticipatory bail—a right fully available to every adult. The Preamble to the JJ Act reinforces a child-friendly, rights-protective approach. It was stated that since anticipatory bail protects personal liberty, and no statute expressly bars juveniles from invoking Section 438 CrPC, the right must extend to children in conflict with law.Accordingly, the matter was directed to be placed before the appropriate Bench for a decision on merits.Case: Suhana Khatun and Others Vs. The State of West BengalCase No: CRM 2739 of 2021Click here to read order

Juvenile Accused Can Seek Anticipatory Bail U/S 438 CrPC: Calcutta High Court

Srinjoy Das

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