Anticipatory Bail Application By Juvenile Or Child In Conflict With Law U/S 438 CrPC Is Maintainable: Calcutta High Court

The Calcutta High Court held that an Application for Anticipatory Bail filed by a juvenile or child in conflict with law under Section 438 of the Criminal Procedure Code, 1973 (CrPC), is maintainable.

The Court held thus in an Application filed by four minor or juvenile persons in connection with a case under Sections 341, 325, 326, 307, 302, and 34 of the Indian Penal Code, 1860 (IPC).

A Full Bench (2:1) comprising Justice Jay Sengupta, Justice Tirthankar Ghosh, and Justice Bivas Pattanayak observed, “It would, thus, 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. … 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.”

However, Justice Bivas Pattanayak dissented by saying that an application for anticipatory bail under Section 438 of CrPC at the instance of a child in conflict with law is not maintainable.

Senior Advocate Ayan Bhattacharjee appeared on behalf of the Petitioners, while Public Prosecutor Debasish Roy and Senior Advocate Himanshu De appeared on behalf of the Respondents.

Brief Facts

The case was listed for Judgment on January 20, 2022 before the Division Bench comprising Justice Arijit Banerjee and Justice Bivas Pattanayak wherein it was observed that the principal question pertaining to the Petition is whether an application for anticipatory bail under Section 438 of the CrPC at the behest of a juvenile minor is maintainable.

The Bench dismissed the said application and requested the Chief Justice to constitute a larger Bench to decide as to whether or not an application for anticipatory bail under Section 438 of the CrPC at the instance of a minor juvenile is maintainable, in view of the fact that there is divergence of opinion between coordinate benches of the Court in that regard.

Reasoning

The High Court in view of the above facts, noted, “Law is dynamic. Quite commensurately, the concept of anticipatory bail or pre-arrest bail, after its introduction in the Code, has also undergone changes over the years.”

The Court held that the apprehension of a juvenile or a child in conflict with law, for whatever purpose or consequence, would tantamount to restriction of his liberty and, therefore, a pre-arrest bail can be invoked even if such apprehension is contemplated.

“In any event, a Court of Law cannot undertake a hyper technical or shallow approach in interpreting provisions of law, especially when the same relates to the rights and liberties of individuals, that too of juveniles. The true spirit and intent of a legislation needs to be carefully comprehended”, it added.

The Court said that it is another thing that in the case the parties including the State and the Union of India have all finally converged to the same view that for their respective reasons, an anticipatory bail application would be maintainable when filed by a juvenile or a child in conflict with law.

Justice Tirthankar’s Concurrent Opinion

Justice Tirthankar Ghosh while concurring, observed, “Having regard to the intention of the legislature so far as the provision of Juvenile Justice (Care And Protection of Children) Act 2015 is concerned, including the preamble of the Act and the remedy available under the general law as also the extended meaning of term ‘arrest’ as has been held by the Hon’ble Apex Court in the aforesaid pronouncements, I am of the opinion that an application under Section 438 of the Cr.PC/Section 482 of the BNSS is maintainable in case such an application is preferred by a Juvenile/Child in conflict with law.”

He, therefore, concurred with the reasoning and conclusion of Justice Jay Sengupta and expressed respectful dissent from the conclusion and findings reached by Justice Bivas Pattanayak.

Justice Pattanayak’s Dissenting Opinion

Justice Bivas Pattanayak while dissenting with the Bench, said, “… mere absence of any provision for anticipatory bail in the 2015 Act does not per se entitle a child to approach for anticipatory bail under Section 438 of the Code for the reason that it impairs the provisions of the 2015 Act and leads to consequences, as discussed above, which are contrary to the provisions of the 2015 Act, if applied. In this regard, I am of the opinion that a purposive construction must be adopted for ascertaining the true intent of the Parliament as far as the Juvenile Justice Act is concerned. Whether releasing a child in conflict with law is beneficial or keeping him in an observation home is more desirable, are squarely matters which are to be decided by the Board as envisaged under Section 12 of the Juvenile Justice Act.”

He remarked that merely allowing the application for anticipatory bail cannot be said to be beneficial for a child in conflict with law, since such order may expose the child in conflict with law to moral, physical, and psychological danger and may be counter-productive.

“I am 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”, he concluded.

Accordingly, the High Court answered the Reference.

Cause Title- Suhana Khatun and Others v. The State of West Bengal (Case Number: CRM 2739 of 2021)

Appearance:

Petitioners: Senior Advocate Ayan Bhattacharjee, Advocates Indrajit Adhikari, Bitasok Banerjee, Niladri Sekhar Bose, Sharequl Haque, Priyanka Agarwal, Prattay Khan, Zohaib Rauf, Aditya Ratan Tiwari, Amitabrata Hait, Subjajit Manna, Ritu Das, Debarka Guha, Ayesha Sultana, Shaunat Mondal, Arpit Choudhury, and Pronab Halder.

Respondents: Public Prosecutor Debasish Roy, Senior Advocate Himanshu De, Advocates Suman De, and Arun Kumar Maiti (Mohanty).

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