Anticipatory Bail to Juveniles(?): A Dilemma Unresolved

By: Digvijay Sahni

Whether a knife, an instrument which is meant for saving human life by using the same in the course of operation by a surgeon, can it be permitted to be used in taking the life of some innocent?[1]


Anticipatory Bail was incorporated u/s 438 of the Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) on the recommendation of the 41st Law Commission Report. It observed that prima facie detaining an accused in the custody of the police, in the absence of reasonable grounds, might infringe or hamper the investigation process or threaten the witnesses, resulting in unduly harassment affecting his liberty under Article 21 of the Constitution. Against this backdrop, a provision for pre-arrest bail was carved out in CrPC’.

With the inclusion of section 438 in CrPC, special legislations such as Prevention of Atrocities Act, 1989, Unlawful Activities Prevention Act, 1967, Narcotic Drugs and Psychotropic Substances Act, 1985, and others, mentioned whether section 438 of CrPC would be made applicable or a person charged of any of the offences mentioned under these special legislations would be deprived of this beneficiary provision of CrPC. On the contrary, the Juvenile Justice Act, 2015 (hereinafter ‘JJ Act’) being another special legislation, is silent on the applicability of section 438 of CrPC and only talks about the regular bail. In the absence of any concrete guidelines and judgment by the Supreme Court on the issue, there is an absence of uniform approach adopted by the High Courts which has led to the divergence of opinion amongst them.

The present article attempts to present the picture of the two sides of the coin, along with a critical analysis of the judgments of the respective courts, which has resulted in the need for urgent judicial intervention of the apex court.


JJ Act is special legislation and the legislators while drafting the Act were conscious not to punish the child delinquents, rather provide for a child-friendly mechanism that would cater to their needs. With this object in mind, the legislation nowhere uses the word “accused” for a child delinquent and uses either “child in conflict with law” or “child in need of care and protection.” Based on this distinction, the Telangana High Court held that a writ petition moved by a child delinquent for the grant of anticipatory bail is not maintainable. The court ruled that recourse available under section 12(1) of the JJ Act was more flexible as irrespective of the offence committed (bailable or non-bailable), bail is granted as a matter of right. Further, the court opined that a child in conflict with law is not arrested, rather apprehended, and providing recourse to section 438 of CrPC would inevitably curb the liberties available under JJ Act.

The high courts themselves don’t hold the unanimous view and there are divergent views that the courts express while either maintaining or denying the application of granting anticipatory bail to juveniles. A similar stance was taken by the P&H High Court which noted that pre-arrest bail was not available to a juvenile under the JJ Act as a child delinquent, on being apprehended, is immediately produced before a juvenile justice board (hereinafter ‘JJB’) which inevitably has to grant bail unless exceptional circumstances exist in not granting one. The court’s reasoning primarily revolved around the personal interaction of the child with JJB which after perusing the relevant factors has to ascertain the question of grant of bail. Applying section 438 of CrPC would do away with this requirement which is an essential consideration for not granting bail in exceptional circumstances. Hence, considering the ambit and scope covered by JJ Act, the provision for anticipatory bail should have no applicability.

The Madhya Pradesh High Court by giving a narrow construction and relying on the literal interpretation of section 12 of the JJ Act opined that the only power conferred upon the JJB was to entertain the bail applications and to entertain an application for pre-arrest bail falls outside its ambit. In the absence of a specific provision in the JJ Act, the ordinary legislation can’t be made applicable and the child in conflict with law can’t accrue the benefit of anticipatory bail.

Though the courts in their rulings have tried to take into account the beneficiary provisions of the JJ Act, it can’t be considered as a correct position in law, as apprehension of a juvenile by the police and his appearance before the court, only adds to his woes and doesn’t further any beneficiary cause of JJ Act. If a juvenile, who has committed a petty offence (as per JJ Act), is made to appear before the JJB and then is released on bail, it would not serve any purpose. It is not that in every case, the pre-arrest bail must be granted but only where the offence is petty in nature, as a matter of general rule, the JJBs must be empowered with the power to grant anticipatory bail.


Lex Specialis Derogat Legi Generali (special laws repeal general laws) applies when there is a direct conflict or inconsistency between a general law and special law. This being the canon of interpretation of the law; there is nothing in JJ Act that suggests that anticipatory bail wouldn’t have any applicability; a position which was accepted by the Allahabad High Court.

Similarly, in a recent judgment rendered by the Kerala High Court, the distinction between the term “arrest” and “apprehend” was diluted, where the court while upholding the application of anticipatory bail by a juvenile, mentioned that arrest, u/s 46(1), can only be made when there is an element of touch or confinement either by a police officer or any other person empowered under the Code. Usage of the term “apprehend” instead of “arrest” doesn’t make any difference as the former also involves touching the person. Therefore, denying a juvenile to resort to section 438 of the Code doesn’t seem to have a direct nexus with the principle of interpretation of statutes.

A similar judgment was rendered in the case of Kureshi Irfan Hasambhai vs State of Gujarat, where the distinction between the terms arrest and apprehend was obliterated and pre-arrest bail was granted to the juvenile.

In another judgment rendered by the P&H High Court in 2020, it was ruled that JJ Act is social legislation, with a primary focus on the social integration and rehabilitation of the child. The Act bases its foundation on reformative principles rather than providing for punitive measures and had there been the intention of the legislators to deny anticipatory bail to a juvenile, it would have carved out an exception for the same. Therefore, it can be presumed that denial of pre-arrest bail and non-applicability of section 438 was the intention of the lawmakers while enacting JJ Act 2015.

The rulings rendered by the Kerala and Gujarat High Court have added a new dimension and provided a food for thought on the issue of denial of anticipatory bail to a child in conflict with the law. Though, there will always lie an argument that a child is any person within the meaning of CrPC who can’t be denied anticipatory bail, purposive interpretation of the statutes is something new which the courts must consider while deciding an issue where there is neither a direct conflict nor inconsistency between a special law and general law.


In evaluating both the schools of thought, it becomes vividly clear that purposive and beneficiary construction of the provisions appear to be in tune with the object that the JJ Act seeks to achieve.  In my opinion, where such kind of anomalous situations arise, then the object and the intention of the legislators while drafting a statute must be looked at. The Juvenile Justice (Care and Protection of Children) Act, 2015 was enacted by keeping in mind the rights of the juveniles and extending the benefits of restorative justice to such juveniles. This is amply clear by the drafting of various provisions of the Act which elucidates that the primary objective is to give the juveniles a chance to mingle with the society and not turn into hardened criminals. The mere fact that the term “child in conflict with law” has been used instead of the term “accused” is sufficient evidence.

A liberal and constructive approach must be adopted while interpreting the provisions of any Act and it would be no wrong to mention that on aspects where the special statute is silent, reliance must be placed on the ordinary legislations to fully achieve the objects of such special legislations. Therefore, a juvenile must be made to have the recourse available to resort to section 438 of CrPC, and ruling by the Supreme Court, clarifying this position of law, is the need of the hour.

[1] Pankaj D. Suthar v. State Of Gujarat 1991 SCC OnLine Guj 303

(Digvijay is a law undergraduate at Maharashtra National Law University, Mumbai. The author may be contacted via mail at

Cite as: Digvijay Sahni, ‘Anticipatory Bail to Juveniles(?): A Dilemma Unresolved’ (The RMLNLU Law Review Blog, 09 August 2021) <>   date of access

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