In a significant ruling that could reshape juvenile justice procedures across the country, a three-judge Bench of the Calcutta High Court on Friday held that minors-referred to as “children in conflict with law”-can seek anticipatory bail under Section 438 of the Criminal Procedure Code. The judgment came after a long and somewhat tangled legal journey involving conflicting earlier rulings of coordinate Benches. Sitting in a packed courtroom, the Bench led by Justice Jay Sengupta delivered its much-awaited decision after months of hearings.
Background
The reference had arisen from a 2021 case in Murshidabad, where four minors accused in a serious offence sought anticipatory bail. A previous Division Bench had dismissed their plea, holding that juveniles could not invoke Section 438. But the Bench also noticed an earlier 2021 decision in Surabhi Jain, where another Division Bench had reached the opposite conclusion and even asked the Chief Justice to constitute a larger Bench. As one of the judges put it during the hearing, “This confusion cannot continue; it affects liberty.”
The Chief Justice eventually assigned the matter to a three-judge Bench comprising Justices Jay Sengupta, Tirthankar Ghosh, and Bivas Pattanayak.
Court’s Observations
The Bench spent considerable time examining the Juvenile Justice (Care and Protection of Children) Act, 2015. A central point was whether its provisions-particularly on apprehending minors-implicitly barred anticipatory bail.
Justice Sengupta made it clear that they do not. “The supposed bar on Section 438,” he noted, “arises only because the Act talks about what happens after a child is apprehended. But anticipatory bail deals with what happens before that stage.”
The court was particularly cautious about liberty. Calling attention to Article 21, it observed, “Even placing a child in an observation home is a curtailment of freedom. Pre-arrest bail protects against that very deprivation.”
The Bench also highlighted that several High Courts across India-Gujarat, Bombay, Allahabad, Delhi, Jharkhand, to name a few-had already taken a pro-liberty view. There was no express legislative bar denying juveniles access to Section 438. And the Act of 2015, being a beneficial legislation, could not be interpreted to take away rights unless Parliament had explicitly said so.
In a notable moment, the Bench remarked, “It would be rather preposterous to say a special law meant to protect children ends up stripping them of a fundamental safeguard available to every other citizen.”
The judges also clarified that the terms “arrest” and “apprehension” cannot be treated as watertight compartments. Drawing on Supreme Court precedents, they explained that any form of detention or custodial restraint amounts to a deprivation of liberty, and therefore fits within the purpose of anticipatory bail.
Decision
Bringing months of uncertainty to an end, the court ruled that an anticipatory bail petition filed by a juvenile is maintainable under Section 438 CrPC. The Bench formally answered the reference, removing the conflict created by earlier rulings.
The order stops at deciding only the maintainability issue and does not comment on the merits of the juveniles’ pending bail plea. With this, the High Court has settled a long-standing question and ensured that children in conflict with law are not left “remedy-less” before apprehension.
Case Title: Suhana Khatun & Others v. State of West Bengal
Case Number: CRM 2739 of 2021
Court: High Court at Calcutta (Larger Bench)
Bench: Justice Jay Sengupta, Justice Tirthankar Ghosh, Justice Bivas Pattanayak
Heard On: 08 August 2025
Judgment Date: 14 November 2025