Anticipatory Bail Is Maintainable for Juveniles: Calcutta High Court (Larger Bench) Harmonizes JJ Act, 2015 with Section 438 CrPC

Introduction

In Suhana Khatun and Others v. State of West Bengal (CRM 2739 of 2021), a Larger Bench of the Calcutta High Court comprising Hon’ble Justice Jay Sengupta, Hon’ble Justice Tirthankar Ghosh, and Hon’ble Justice Bivas Pattanayak resolved a significant intra-court conflict on a pure question of law: whether a juvenile (a “child in conflict with law”) can invoke Section 438 of the Code of Criminal Procedure, 1973 (CrPC) for anticipatory bail.

The reference reached the Larger Bench after divergent Division Bench views within the High Court—most notably, the earlier decision in Krishna Garai v. State of West Bengal, 2016 (5) CHN (Cal) 157, which denied maintainability, and Miss Surabhi Jain (Minor) & Ors. v. State of West Bengal (23.08.2021), which affirmed it. The Chief Justice referred the issue for authoritative determination. The present case arose out of Raghunathganj Police Station Case No. 12/2021 dated 07.01.2021, alleging serious offences under Sections 341, 325, 326, 307, 302 and 34 of the IPC against four minors.

The central issue was narrow but foundational: does the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015) oust or implicitly exclude the remedy of anticipatory bail for children in conflict with law? The case thus sat at the intersection of child-centric criminal process, constitutional liberty (Article 21), and the doctrinal relationship between a special statute and the general criminal procedure.

Summary of the Judgment

Holding (Majority): By a 2–1 majority, the Court held that an application for anticipatory bail under Section 438 CrPC filed by a juvenile/child in conflict with law is maintainable.
Jay Sengupta, J. (for the majority):
- No express or implied bar in the JJ Act, 2015 excludes Section 438 CrPC.
- The JJ Act primarily governs the post-apprehension stage (Sections 10 and 12), whereas anticipatory bail is a pre-apprehension remedy; both operate in different fields.
- Even sending a child to an observation home curtails liberty; anticipatory bail preserves liberty more fully and is consistent with Article 21.
- “Apprehension” (JJ Act) and “arrest” (CrPC) are not mutually exclusive as to effect; both entail restraint on liberty. The constitutional and purposive approach warrants reading them functionally, not formally.
Tirthankar Ghosh, J. (concurring):
- Reinforced that “arrest” has acquired an expansive meaning in jurisprudence and that the JJ Act’s silence on anticipatory bail does not amount to exclusion.
- Noted that since the JJ Board may refuse bail under Section 12, the child’s liberty can be curtailed; therefore, the pre-arrest remedy cannot be denied to a juvenile when available to adults.
Bivas Pattanayak, J. (dissenting):
- The JJ Act deliberately replaces “arrested” (Act of 2000) with “apprehended” (Act of 2015), reflecting legislative intent to avoid arrest/jail for children and to create a self-contained, child-friendly process.
- Section 1(4) of the JJ Act (non obstante clause) mandates that for matters of apprehension/detention, JJ Act overrides; since a child cannot be “arrested,” the threshold for Section 438 (“reason to believe that he may be arrested”) is not met.
- Allowing anticipatory bail risks undermining the JJ Board’s statutory discretion under Section 12 regarding release and protective placement.
Answer to Reference: An application for anticipatory bail by a juvenile/child in conflict with law is maintainable under Section 438 CrPC.

Analysis

Precedents and Authorities Considered

Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565
Constitution Bench underscored the pro-liberty purpose of anticipatory bail; courts should avoid importing restrictions absent in the statute. This decision formed the doctrinal bedrock for reading Section 438 as a fair-procedure safeguard under Article 21.
Directorate Of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440
Clarified that “arrest” is not statutorily defined and should be understood as restraint on personal liberty; all arrest is custody, though all custody may not be arrest. The majority used this functional lens to analogize “apprehension” (JJ Act) to “arrest” (CrPC) in terms of liberty impact.
Mahdoom Bava v. CBI, 2023 SCC Online SC 299
Recognized apprehension of custody at the behest of courts (e.g., remand upon appearance on summons), not merely by police, as justiciable through anticipatory bail. The majority cited this to show that the protective ambit of Section 438 is not confined to conventional arrest mechanics.
DHANRAJ ASWANI v. AMAR S. MULCHANDANI, (2024) 10 SCC 336
Reiterated that “arrest” lacks a definition in CrPC; supports a non-formalistic approach to what constitutes deprivation of liberty.
Sushila Aggarwal v. State (Nct Of Delhi), (2020) 5 SCC 1
Clarified the nature and conditions of anticipatory bail; treated anticipatory and post-arrest bail as conceptually similar remedies at different stages.
Vijay Madanlal Choudhary v. Union Of India, 2022 SCC OnLine SC 929
Although on PMLA, the Court discussed how special statutes may overlay general bail principles and how non obstante clauses function. The Larger Bench used this to emphasize that unless expressly excluded, Section 438 stands, subject to statutory constraints where applicable.
Chief Information Commissioner v. High Court Of Gujarat, (2020) 4 SCC 702
Non obstante clauses override only in case of inconsistency; special law does not impliedly repeal general law absent clear conflict. This principle underpinned the majority’s harmonization of JJ Act and Section 438.
Intra- and Inter-High Court Authorities
The Court noted divergent Calcutta DB views: Krishna Garai (2016) (no maintainability) and Surabhi Jain (2021) (maintainability; reference). Other High Courts have permitted such applications: Gujarat (Kureshi Irfan Hasambhai), Bombay (Raman & Ors.), Allahabad, Punjab & Haryana, Madhya Pradesh, Kerala, Gauhati, Jharkhand, Odisha, and Delhi, signalling a broader trend favoring maintainability.

Core Legal Reasoning (Majority)

No express bar; no inconsistency → no ouster of Section 438.
The JJ Act, 2015 does not expressly exclude Section 438 CrPC. Under Section 5 CrPC and settled canons, a special statute prevails over a general one only to the extent of inconsistency. Sections 10 and 12 of the JJ Act regulate the post-apprehension stage; Section 438 operates pre-apprehension. There is no conflict—both can co-exist.
Liberty-centric construction under Article 21.
The remedy of anticipatory bail is part of fair procedure safeguarding personal liberty. Placement in an observation home is nonetheless a deprivation of liberty. A child’s right to avoid unnecessary curtailment merits robust protection unless the legislature clearly says otherwise.
“Apprehension” effectively mirrors “arrest” in its consequence on liberty.
While the JJ Act uses “apprehension” and bars lock-ups/jails, the real question is whether the child’s personal liberty is restrained. Functionally it is, including through observation home placement. Hence, reading “apprehension” and “arrest” disjunctively would produce arbitrary deprivations not intended by the statute or the Constitution.
Dynamic understanding of anticipatory bail.
Jurisprudence recognizes anticipatory bail even where custody may follow court appearance or summons (not solely police action). The protective purpose of Section 438 should not be defeated by formal labels.
JJ Act’s beneficent purpose cannot diminish a child’s access to a beneficent remedy.
The JJ Act aims to protect children by child-friendly processes. It would be paradoxical to construe it as removing a protective remedy that preserves liberty, especially when the Act contains no express removal and the general law grants it to “any person.”

The Dissent’s Rationale

Textual shift from “arrested” (JJ Act, 2000) to “apprehended” (JJ Act, 2015) is deliberate.
The legislature intended a child-specific, non-carceral process. The non obstante clause in Section 1(4) ensures JJ Act procedure governs apprehension and detention “notwithstanding anything” in any other law. Therefore, the very premise of Section 438—“reason to believe he may be arrested”—fails for juveniles.
Self-contained scheme; primacy of JJ Board’s mandate under Section 12.
The JJ Board is statutorily entrusted to assess whether release is beneficial or risks moral/psychological danger, or defeats the ends of justice. Anticipatory bail risks short-circuiting this calibrated inquiry and rendering Section 12 nugatory.
Model Rules reinforce non-carceral, child-friendly handling.
Rules 8 and 9 of the 2016 Model Rules emphasize minimal “apprehension,” prohibition of handcuffs, and protective safeguards, strengthening the argument that anticipatory bail is neither contemplated nor necessary.

Impact and Implications

Immediate operational impact in West Bengal: Juveniles/children in conflict with law may move the Sessions Court/High Court under Section 438 CrPC. Courts will consider maintainability per the majority and assess merits case by case.
Harmonized procedure; no displacement of the JJ Board: The decision affects maintainability, not outcomes. Even when anticipatory bail is granted or refused by the High Court/Sessions Court, appropriate directions may be issued to ensure appearance before the JJ Board and to maintain the child-friendly framework (including supervision, counseling, and protective measures).
Pro-liberty alignment with national jurisprudence: The ruling aligns with the constitutional ethos of Article 21 and the Supreme Court’s liberal approach to anticipatory bail. It also coheres with the broader trend across High Courts permitting such applications by juveniles.
Precedential consolidation in Calcutta: Resolves the conflict between Krishna Garai (2016) and Surabhi Jain (2021). Until an authoritative Supreme Court ruling to the contrary, this Larger Bench governs in West Bengal.
Practical expectations for stakeholders:
- Police: Continue to comply with JJ Act mandates (no lock-ups/jails; promptly produce before Board) while recognizing that pre-apprehension protection may be in place via Section 438 orders.
- Counsel: Present proof of age and child-sensitivity plans (guardianship, schooling continuity, counseling) to satisfy courts that anticipatory bail will not expose the child to risks Section 12 is designed to guard against.
- Courts: Tailor conditions to the child’s best interests, coordinate with SJPU/Designated Child Welfare Police Officers, and, where appropriate, dovetail orders with JJ Board supervision.

Complex Concepts Simplified

Anticipatory Bail (Section 438 CrPC): A pre-arrest judicial direction that if the applicant is arrested in connection with a non-bailable offence, they shall be released on bail. It protects against unnecessary detention and humiliation, is discretionary, and grounded in personal liberty.
“Arrest” vs “Apprehension” vs “Custody”: Arrest is not statutorily defined but denotes restraint on liberty. The JJ Act avoids the term “arrest” and uses “apprehension” for children. However, both result in restraint; even placement in an observation home is a liberty deprivation. Custody is broader; all arrest is custody, not vice versa.
Non obstante clause: A legislative tool—“notwithstanding anything contained in…”—to give a provision overriding effect in case of conflict. It does not automatically repeal or displace other laws; it operates only to the extent of inconsistency.
Special law vs general law: A special statute (JJ Act) prevails over a general one (CrPC) where they conflict. Where both can operate without friction (e.g., JJ Act post-apprehension; Section 438 pre-apprehension), courts harmonize them.
Observation Home vs Jail: Children cannot be placed in police lock-up or jail (JJ Act, Section 10). Observation homes are child-specific facilities. Nonetheless, any form of compulsory placement restricts liberty, which is why anticipatory bail’s availability matters.

Key Takeaways

The Larger Bench authoritatively holds that anticipatory bail is maintainable for juveniles under Section 438 CrPC; the JJ Act does not bar it.
No inconsistency exists between Section 438 CrPC (pre-apprehension) and Sections 10/12 JJ Act (post-apprehension); both regimes are complementary.
Liberty-first approach: Even observation home placement is a curtailment of liberty; anticipatory bail safeguards a child’s Article 21 rights unless statutory text clearly excludes it.
Dissenting caution: The JJ Act’s deliberate design for child-friendly processing, including the JJ Board’s role, should not be bypassed; conditions must be crafted to preserve the Board’s statutory oversight.
Practice pointer: Courts may combine anticipatory bail with directions ensuring presentation before the JJ Board and compliance with protective measures to avoid risk of harm contemplated in Section 12.

Conclusion

The Calcutta High Court’s Larger Bench has set a significant precedent: a child in conflict with law is not excluded from the protective ambit of anticipatory bail. The JJ Act, 2015 and Section 438 CrPC operate in distinct spheres—the former governs post-apprehension child-sensitive procedures while the latter preserves pre-apprehension liberty. The majority’s harmonized reading preserves both the pro-child architecture of the JJ Act and the constitutional imperative to guard personal liberty.

At the same time, the dissent’s reminder is salutary: anticipatory bail must not erode the JJ Board’s central role or the protective rationale behind Section 12. Going forward, courts and practitioners should ensure that anticipatory bail for juveniles is implemented with child-friendly conditions and close coordination with the JJ system, thereby balancing liberty with protection. In resolving a persistent doctrinal split, this judgment strengthens a coherent, rights-consistent juvenile justice jurisprudence.

Court: Calcutta High Court (Larger Bench)

Coram: Jay Sengupta, J; Tirthankar Ghosh, J; Bivas Pattanayak, J

Date of Judgment: 14 November 2025

Disposition on Reference: Anticipatory bail application by a juvenile under Section 438 CrPC is maintainable.