KOLKATA: Four Calcutta high court division benches have requested the chief justice to set up a larger bench to solve a legal conundrum —whether a juvenile involved in a criminal case can seek anticipatory bail. The move follows conflicting judicial orders.
While some HC benches have said a child’s right to seek legal protection from detention cannot be curtailed, others have argued the question of pre-arrest bail does not arise because a child cannot even be arrested under juvenile justice laws.
The recent instance of referral to CJ TS Sivagnanam was on Dec 27 by a division bench of Justices Apurba Sinha Ray and Shampa Sarkar. The issue isn’t limited to Calcutta HC. Supreme Court was informed on Nov 22, 2023, that five high courts had upheld a minor’s right to seek pre-arrest bail while four others had turned it down. An SC bench has sought Centre’s views.
The core legal debate is two-fold. India’s anticipatory bail laws do not differentiate between an adult and a child, but juvenile justice laws in India deliberately avoid the word “arrest” and insulate a child from being questioned in police custody or sent to jail. Some experts say if there is no arrest, how can there be pre-arrest bail?
Another aspect raised in SC is that the English and Hindi versions of Section 10 of Juvenile Justice (Care and Protection of Children) Act, 2015 are confusing. The English version uses the word “apprehension” but the Hindi version says “giraftar”, which means arrest.
Under juvenile justice laws, a child cannot be arrested. The child can at best be apprehended and placed in charge of Special Juvenile Police Unit (SJPU) or Designated Child Welfare Police Officer (CWPO), sent to an observation home and produced before a Juvenile Justice Board within 24 hours. The legal provisions do not empower the authorities to interrogate the child, nor do they envisage detention in jail or police lockup.
The state government’s position in court has been that in absence of arrest of a child, anticipatory bail plea is inapplicable. The state argued that the word “arrest” in CrPC means confining a person either in police or jail custody, neither of which is applicable to a child.
While some HC benches have said a child’s right to seek legal protection from detention cannot be curtailed, others have argued the question of pre-arrest bail does not arise because a child cannot even be arrested under juvenile justice laws.
The recent instance of referral to CJ TS Sivagnanam was on Dec 27 by a division bench of Justices Apurba Sinha Ray and Shampa Sarkar. The issue isn’t limited to Calcutta HC. Supreme Court was informed on Nov 22, 2023, that five high courts had upheld a minor’s right to seek pre-arrest bail while four others had turned it down. An SC bench has sought Centre’s views.
The core legal debate is two-fold. India’s anticipatory bail laws do not differentiate between an adult and a child, but juvenile justice laws in India deliberately avoid the word “arrest” and insulate a child from being questioned in police custody or sent to jail. Some experts say if there is no arrest, how can there be pre-arrest bail?
Another aspect raised in SC is that the English and Hindi versions of Section 10 of Juvenile Justice (Care and Protection of Children) Act, 2015 are confusing. The English version uses the word “apprehension” but the Hindi version says “giraftar”, which means arrest.
Under juvenile justice laws, a child cannot be arrested. The child can at best be apprehended and placed in charge of Special Juvenile Police Unit (SJPU) or Designated Child Welfare Police Officer (CWPO), sent to an observation home and produced before a Juvenile Justice Board within 24 hours. The legal provisions do not empower the authorities to interrogate the child, nor do they envisage detention in jail or police lockup.
The state government’s position in court has been that in absence of arrest of a child, anticipatory bail plea is inapplicable. The state argued that the word “arrest” in CrPC means confining a person either in police or jail custody, neither of which is applicable to a child.
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