A three-judge division bench of the Calcutta High Court has ruled that juveniles accused of crimes are now eligible for anticipatory bail, extending to minors the same pre-arrest protections previously available only to adults under Section 438 of the Code of Criminal Procedure. The bench, comprising Justices Jay Sengupta, Tirthankar Ghosh, and Bivas Pattanayak, held that personal liberty under Article 21 of the Constitution applies equally to children, and the Juvenile Justice (Care and Protection of Children) Act, 2015, does not prohibit anticipatory bail despite detailing post-arrest procedures. This marks the first time any high court in India has granted juveniles the right to seek bail before apprehension, fundamentally altering the legal recourse available to minors facing criminal allegations.

The majority opinion, delivered by Justices Sengupta and Ghosh, emphasised that the JJ Act’s silence on pre-arrest safeguards cannot be interpreted as denial of a fundamental right. They argued that without anticipatory bail, juveniles remain vulnerable to arbitrary detention, harassment, and stigma—consequences that run counter to the rehabilitative spirit of juvenile justice. The bench clarified that courts can impose strict conditions, such as mandatory appearance before the Juvenile Justice Board or cooperation with investigation, to balance child welfare with procedural fairness.

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Justice Pattanayak dissented, warning that anticipatory bail could weaken the specialised framework of the JJ Act, where Juvenile Justice Boards are empowered to decide bail post-apprehension using child-centric principles. He expressed concern that high court intervention at the pre-arrest stage might allow serious offenders to evade accountability and dilute the protective intent of the law. Despite the split verdict, the majority ruling prevails, making anticipatory bail accessible to juveniles within the Calcutta High Court’s jurisdiction.

Legal experts have described the judgement as pathbreaking, filling a critical gap in juvenile jurisprudence. Until now, a minor apprehending arrest had no legal avenue to prevent custody; only after being produced before a JJB could bail be considered under Section 12 of the JJ Act. This often resulted in children spending days in observation homes even for minor or bailable offences. The ruling empowers juveniles to approach sessions courts or the high court directly, ensuring preventive justice without compromising the JJ Act’s focus on rehabilitation over punishment.

The decision arose from a reference by a single-judge bench seeking clarity on whether Section 438 CrPC applies to minors, particularly in serious crimes where police custody is sought. By affirming its applicability, the division bench has set a persuasive precedent likely to influence other high courts and potentially prompt legislative review. Child rights advocates have welcomed the order as a victory for constitutional equality while cautioning that safeguards must prevent misuse in heinous cases.

With this ruling, juvenile justice in India takes a significant step toward harmonising protective laws with universal human rights, ensuring that no child is deprived of liberty without due process—before or after arrest.

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