Juveniles Entitled to Anticipatory Bail: Cal HC Majority Bench

MP, KOLKATA, NOV 15, 2025 : A three-judge Bench of the Calcutta High Court held by a 2:1 majority that a juvenile or “child in conflict with law” is legally entitled to apply for anticipatory bail under Section 438 of the CrPC. With the majority view prevailing, juveniles may now approach the High Court or Court of Session for anticipatory bail where there is a genuine apprehension of arrest.

According to legal experts, the ruling settles a long-debated question on whether the Juvenile Justice (Care and Protection of Children) Act, 2015 implicitly bars minors from seeking pre-arrest protection. The matter arose out of a plea filed by four minors apprehending arrest in connection with offences registered at Raghunathganj Police Station. Faced with differing judicial views on whether the Juvenile Justice Act overrides the remedy of anticipatory bail, a single-judge Bench had referred the issue to a larger Bench for authoritative determination.

Delivering the majority opinion, Justice Jay Sengupta, with Justice Tirthankar Ghosh concurring, held that nothing in the 2015 Act expressly or by necessary implication excludes the operation of Section 438. The court reasoned that the statutory framework governing juveniles becomes operative after a child is apprehended and produced before the Board, while anticipatory bail functions at the pre-apprehension stage to safeguard personal liberty.

Reading an exclusion into the statute, the Bench said, would mean taking away a liberty-protecting remedy from children when it is available to adults, a result contrary to the welfare-oriented spirit of the juvenile law.

The judgment emphasised that the legislature had not intended to curtail the constitutional guarantee of personal liberty and that a beneficial statute such as the Juvenile Justice Act must not be construed to restrict access to another beneficial provision unless the text clearly mandates it. The court added that if anticipatory bail is granted, the order may be moulded with child-sensitive conditions so that it does not interfere with the statutory functions of the Juvenile Justice Board, whose jurisdiction activates only after physical apprehension.

However, the dissenting judge, Justice Bivas Pattanayak, held that permitting juveniles to seek anticipatory bail risks weakening the protective architecture designed by the Act, which envisages apprehension followed by a specialised, welfare-driven inquiry before the Board. According to his dissent, pre-arrest protection may bypass the very mechanism meant to safeguard the child.