Calcutta High Court refers issue of Maintainability of Anticipatory Bail by Juvenile to Larger Bench

Criminal cases gavel arrest law insider

Shivani Gadhavi

Published On: January 23, 2022 at 12:58 IST

The Calcutta High Court on January 20, 2022 adverted the issue in regards with Maintainability of an application for an Anticipatory Bail by a Juvenile under Section 428 of the Code of Criminal Procedure after divergence of opinions came between the present Bench and a previous Bench of the High Court.

The Calcutta High Court Division Bench of Justices Arijit Banerjee and Bivas Pattanayak was hearing the matter of four minors who are accused of Offence of Murder, Attempt to Murder, Wrongful Restraint and Grievous Hurt. The Bench was to give a ruling in regards with Anticipatory Bail of the four minors Accused.

The set of Counsel for the Petitioners, involving Advocates Ayan Bhattacharyya and B Banerjee, contended that “from the provisions of law embodied under the Juvenile Justice Act of 2015, no mechanism is in place to deal with child/juvenile till the time such child is apprehended or is brought before the Board.”

The Bench however ruled that “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 Prosecution argued that “an application under Section 438 of the Code at the behest of a minor is not maintainable since the apprehension of arrest is misplaced. Further Section 10 and 12 of the Act of 2015, puts in place a detailed procedure to deal with investigation and trial in respect of cognizable offence that may be committed by a minor.”

The Division Bench observed that “We have recorded our detailed reasons herein above as to why in our opinion, an application for anticipatory bail at the instance of a minor/juvenile is not maintainable.”

The Bench however, requested the Chief Justice to constitute a larger Bench in this regard as there is a conflict of opinions between the ruling of the current Bench and rulings given by previous Benches of the Calcutta High Court and other High Courts in matters pertaining to Anticipatory Bail of a Juvenile.

Also read: What is Juvenile Justice (Care & Protection of Children) Amendment Bill, 2021?

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