Can A Juvenile Seek Anticipatory Bail U/S Section 438 CrPC? Calcutta High Court Refers Question To Larger Bench

The Calcutta High Court on Thursday referred to a larger bench the legal issue as to whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC) at the behest of a juvenile is maintainable. 

A Bench comprising Justice Arijit Banerjee and Justice Bivas Pattanayak was adjudicating upon an application for anticipatory bail sought by four minors accused of offences under the Indian Penal Code pertaining to wrongful restraint, causing grievous hurt, attempt to murder, and murder.

The Bench ruled that sufficient safeguards have been provided to a child in conflict with the law should they be apprehended by the police under the Juvenile Justice Act of 2015 and thus an application for anticipatory bail is not maintainable. 

"Taking into consideration the safeguards provided under the 2015 Act and in the light of the legal position that a child in conflict with law cannot be arrested, the question of granting bail in anticipation of arrest of a child in conflict with law does not arise at all. In the 2015 enactment the legislature did not, consciously, empower the police to arrest a child in conflict with law. Accordingly, we are of the considered view that an application for anticipatory bail under section 438 of the Criminal Procedure Code at the instance of a child in conflict with law is not maintainable," the Bench ruled. 

However, pursuant to an examination of precedents by coordinate benches of the Calcutta High Court as well as other High Courts, the Bench concluded that there existed a difference of opinion on this issue. 

The Bench noted that in the case of Saud (minor) represented by his father Morful Sk], the High Court had granted anticipatory bail to a minor petitioner. However, no issue regarding the maintainability of an application for anticipatory bail at the instance of a minor was considered. 

Furthermore, the Bench opined that in cases such as In Re Jiban Mondal, Krishna Garai & Ors v. The State of West Bengal and Taimina Bibi coordinate benches of the Court had held that an application for anticipatory bail at the instance of a child in conflict with the law was not maintainable.

The Bench further clarified that it concurs with the finding in the case of Krishna Garai v. The State of West Bengal wherein a coordinate bench of the Court had held that such an application is not maintainable. The Bench further recorded that it disagrees with the conclusion reached by the coordinate Bench in the case of Miss Surabhi Jain (Minor) & Ors which held that an application for anticipatory bail at the instance of a minor/juvenile is maintainable. 

Accordingly, the Bench referred the issue to the Chief Justice to constitute a larger Bench for consideration and accordingly observed, 

'We also request the Hon'ble Chief Justice to constitute a larger Bench to decide as to whether or not an application for anticipatory bail under section 438 of the Cr.P.C at the instance of a minor/juvenile is maintainable, in view of the fact that there is divergence of opinion between coordinate benches of this Court in that regard."

Accordingly, the plea was disposed of.

Arguments 

The petitioners contended that the Juvenile Justice Act of 2015 is a beneficial legislation and thus could not be construed to exclude another beneficial provision that was a component of Article 21 of the Constitution. It was further submitted that when two diverging views were possible, the one that would favour the child in conflict with law should be adopted.

It was also argued that since no express exclusion of Section 438 of CrPC has been prescribed in the Juvenile Justice Act of 2015, it can be safely concluded that the structure of the legislation does not exclude the provisions of anticipatory bail/pre-arrest bail under Section 438 of CrPC and the same could not be implanted by way of judicial interpretation.

On the other hand, the State argued that such an application was not maintainable since the apprehension of arrest was misplaced and the provisions of pre-arrest bail would disrupt the mandatory statutory procedure prescribed under the Justice Act of 2015 and other Model Rules. 

Advocates Ayan Bhattacharyya and B. Banerjee appeared for the petitioners. The State was represented by advocates Swapan Banerjee and Suman De.

Case Title: Suhana Khatun v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 11. 

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