The court ruled that anticipatory bail applications by juveniles are maintainable under Section 438 of the Code, affirming the necessity of protecting personal liberty as guaranteed by Article 21 of the Constitution.

JUDGMENT :

JAY SENGUPTA, J.

1. This application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 filed at the instance of four minor/juvenile persons in connection with the Raghunathganj Police Station Case No. 12 of 2021 dated 07.01.2021 under Sections 341 , 325, 326, 307, 302, 34 of the Indian Penal Code was assigned before the Bench by the Hon'ble Chief Justice with the following observations:-

“The matter was listed for judgment on 20th January, 2022 before the Hon'ble Division Bench comprising Hon'ble Justice Arijit Banerjee and Hon'ble Justice Bivas Pattanayak wherein the Hon'ble Division Bench observed that the principal question pertaining to the instant petition is whether an application for anticipatory bail under Section 438 of the Code at the behest of a juvenile minor is maintainable. Therefore, before delving into any other points involved in the case, the Hon'ble Division Bench dealt with the question of maintainability of the present application for anticipatory bail preferred at the instance of juveniles/minors under of the Code.

The Hon'ble Division Bench, after dismissing the application, has made the following observation:-

“21. However, although neither of the sides drew our attention to the Judgment of a Division Bench of this Court, the Judgement in the case of Miss Surabhi Jain (Minor) & Ors. In CRM 405 of 2021 has come to our notice. In that Judgment, a Coordinate Bench has come in the conclusion that an application for anticipatory bail at the instance of a minor juvenile is maintainable That Bench has differed from the conclusion reached by an earlier Division Bench of this Court in the Case of Krishna Garai v. The State of West Bengal, 2016 (5) CHN (Cal) 157 wherein it was held that such an application is not maintainable. The Division Bench in the case of Miss Surabhi Jain (Minor) & Ors. In CRM 405 of 2021. referred the issue to the Chief Justice to constitute a larger Bench to decide the point. However the Division Bench, being of the view that such an application is maintainable, allowed the application on merit. We respectfully disagree with the conclusion reached by the coordinate Bench in the case of Miss Surabhi Jain (Minor) & Ors. In CRM 405 of 2021. We have recorded our detailed reasons hereinabove as to why in our opinion, an application for anticipatory bail at the instance of a minor juvenile is not maintainable. Accordingly we have dismissed the application. However, we also request the Hon'ble Chief Justice to constitute a larger Bench to decide as to whether or not an application for anticipatory bail under section 438 of the Cr.P.C. at the instance of a minor juvenile is maintainable, in view of the fact that there is divergence of opinion between coordinate benches of this Court in that regard.”

It is to be mentioned herein that the Hon'ble Division Bench comprising Hon'ble Justice Harish Tandon and Hon'ble Justice Bibek Chaudhuri passed the judgment on 23th August, 2021 in Miss Surabhi Jain (Minor) & Ors. Vs. The State of West Bengal while sitting at Circuit Bench."

2. Therefore, the question of law to be answered by this Bench is whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 is maintainable when filed by a juvenile or a child in conflict with law.

3. Mr. Bhattacharjee, learned seni