Patna High Court – Orders
Sanjani Kumari @ Sanjana Kumari vs The State Of Bihar on 29 July, 2026
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.46499 of 2026
Arising Out of PS. Case No.-319 Year-2024 Thana- KUCHAIKOTE District- Gopalganj
======================================================
Sanjani Kumari @ Sanjana Kumari S/o Hirdyanand Chauhan Resident of
Village - Pakadee, PS - Kuchaikote, District - Gopalganj
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner : Mr.Adesh Raj Singh, Adv.
For the Opposite Party : Mr.Ram Bilash Roy Raman, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
2 29-07-2026
The present petition has been preferred seeking
anticipatory bail on behalf of child in conflict with law in
connection with Kuchaikote P.S. Case No.319 of 2024
registered under Sections 126(2), 115(2), 110, and 3(5) of
the Bharatiya Nyaya Sanhita, 2023 (in short ‘BNS’).
2. At the outset, the question that arises is whether
an application for anticipatory bail under Section 482 of
BNSS is maintainable at the instance of juvenile governed by
the provisions of Juvenile Justice (Care And Protection of
Children) Act, 2015.
3. The Juvenile Justice Act is a special and self-
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contained legislation enacted with the object of providing a
separate procedure for dealing with children in conflict with
law. Section 10 of the Act contemplates only the
apprehension of a child and specifically prohibits lodging the
child in a police lock-up or jail. Section 12 further creates a
statutory presumption in favour of bail to a child, irrespective
of whether the offence is bailable or non-bailable, unless the
exceptions contained therein are attracted.
4. In view of the special statutory scheme, the
concept of “anticipatory bail”, which proceeds on an
apprehension of arrest, is alien to the Juvenile Justice Act.
Since a child in conflict with law is not liable to be arrested in
the manner contemplated under the general criminal law and
is instead required to be dealt with under the special
procedure prescribed by the Act, the remedy of anticipatory
bail is unavailable.
5. The issue has engaged the attention of different
High Courts and divergent views have been expressed. A
division Bench of the Calcutta High Court in Suhana Khatun
and Ors. Vs. State of West Bengal [2025 SCC OnLine
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Cal 8965] examined the scheme of the Juvenile Justice Act,
particular Sections 10 and 12 thereof, and held that the
concept of anticipatory bail is foreign to the statutory
framework governing children in conflict with law. The
division Bench observed that a child is only liable to be
apprehended and not arrested in the ordinary sense ; that
section 12 provides a complete mechanism regarding release
on bail after apprehension; and that entertaining an
application for anticipatory bail may trench upon the
statutory jurisdiction of the Juvenile Justice Board. While
recording its respectful disagreement with the contrary view
expressed by a co-ordinate Bench in Miss. Surabhi Jain
(Minor) Vs. State of West Bengal in C.R.M 405 of
2021, the Division Bench requested Hon’ble the Chief
Justice to constitute a larger Bench for an authoritative
pronouncement on the issue in view of the divergence of
judicial opinion.
6. Also, The Division Bench of the Madras High
Court in K. Vignesh Vs. State represented by the
Inspector of Police reported in 2017 SCC OnLine Mad
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28442, has held that an application under Section 438 CrPC
at the instance of a juvenile is not maintainable, holding that
the concept of anticipatory bail is incompatible with the
scheme of the Juvenile Justice Act. The said view has also
been followed by several High Courts.
7. It is apposite to note that the learned co-
ordinate bench presided by Hon’ble Mrs. Justice Soni
Shrivastava in Rohit Kumar Yadav v. State of Bihar[ Cr.
Misc. 43991 of 2024, while examining the maintainability
of an application for anticipatory bail at the instance of child
in conflict with law has undertaken an elaborate analysis of
this statutory scheme of the Juvenile Justice (Care and
Protection of Children) Act, 2015 as well as the judicial
precedence governing the issue. The learned co-ordinate
Bench has, interalia, considered the decisions of the Division
Bench of the Calcutta High Court in Suhana Khatun vs. State
of West Bengal and the Division Bench of Madras High Court
K. Vignesh v. State represented by the Inspector of Police,
together with other decisions sited at the bar. After an
exhaustive consideration of the aforesaid precedent, the
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learned co-ordinate Bench recorded its conclusion on the
question of maintainability seems the judgments taking
divergent views have already been extensively analysed in
Rohit Kumar Yadav(supra).
“50. Considering the above-mentioned
propositions which have been laid down by the
Courts, this Court has no hesitation in taking a
view that primacy has to be given to the object of
the legislature and if the concept of anticipatory
bail to a juvenile/CICL would have been a not
acceptable proposition, the legislature in its
wisdom, would have expressly barred the
application of the same by making a direct and
explicit reference to non-applicability of Section
438 Cr.P.C., which has not been done, as would
be clear from a plain language of the statute,
which gives an overriding effect to the J.J. Act
over the Criminal Procedure Code (making no
specific reference to Section 438 Cr.P.C.), at the
stage of post-apprehension/detention by way of
Section 12 of the Act. At this juncture, it is also
noticed that Section 22 of the J.J. Act also starts
with non-obstante clause with regard to
applications of Cr.P.C. or any preventive
detention law for the time being in force but it
also creates an express bar to passing of any
order under Chapter VIII of the Cr.P.C. against
any child. It would also be apt to refer to some
other legislations like the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act
and Bihar Prohibition and Excise Act, where there
is an express bar in the statute with regard to the
application of Section 438 Cr.P.C. and yet such
applications are entertained, if the applicant is
able to demonstrate that no offences under the
said Acts are made out and thus, the doors are
not totally foreclosed with respect to the
maintainability of the anticipatory bail petitions as
has been held by the Full Bench of this Court in
the case of Ram Vinay Yadav Vs. The State of
Bihar reported in 2019 (2) PLJR 1098 (FB) and
the Hon’ble Supreme Court in the case of Dr.
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Maharastra reported in 2018 (6) SCC 454.
55. Taking all the preceding
discussions into consideration, this Court comes
to considered conclusion that Section 438 Cr.P.C.
emanates from Article 21 of the Constitution of
India which encapsulates the concept of personal
liberty as a basic and a fundamental right, which
is available to all citizens alike without any
discrimination and the said provision of Section
438 Cr.P.C. dealing with anticipatory bail/pre-
arrest bail would not be treated as an alien
concept with respect to a child in conflict with law
as the statute itself, being the J.J. Act, 2015,
does not provide any express bar to such liberty.
The term ‘apprehension’, being somewhat
synonymous to ‘arrest’, and thereby amounting to
curtailment of personal liberty, the argument
advanced on behalf of the State that since there
is no concept of arrest under the J.J. Act, there
can be no pre-arrest bail, cannot be sustained in
view of the detailed discussion made
hereinabove.
56. Thus, in order to provide the same
liberty and protection of law to a child which is
available to an adult for the same offence, also
considering that the “best interest of child” is the
very foundation upon which the entire edifice of
the J.J. Act, 2015 is structured, the child in
conflict with law ought to be held entitled to
invoke the provisions of Section 438 Cr.P.C. The
J.J. Act no doubt, provides for a complete scheme
and mechanism of proceedings under the said Act
for a CICL, however, Section 12 thereof, dealing
with bail to a juvenile at a post-apprehension
stage, and further in absence of any express bar
upon the applicability of Section 438 Cr.P.C., the
provision of anticipatory bail does not get ousted
from the purview and rather is in consonance and
perfectly in tune with a child- friendly approach,
the principle of presumption of innocence and
also to the pricinciple of institutionalization as a
measure of last resort.
61. This Court thus clarifies the
position that by entitling a CICL to invoke the
provision of Section 438 Cr.P.C., there is no
intention to cause usurping of the special powers
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upon the jurisdiction of the J.J. Board, rather the
objective and purpose is only to provide
protection to a child who may be in conflict with
law, from the humiliation and trauma of being
apprehended or detained in any form, during the
procedures related to enquiry etc. Also keeping in
mind the fact that when an adult, for the same
offence is considered for grant of anticipatory
bail, there is no plausible reason or justification
as to why a child would not be extended the
same privilege in the background of the fact that
the special statute for children does not provide
any express bar to the same. The underlying
principle and guiding force in delving into the
entire discussion made here-in-above is fostering
the right of personal liberty as envisaged under
the Constitution of India, which is the mother of
all legislations.”
8. In view of aforesaid discussion, co-ordinate
Bench categorically held that an application for anticipatory
bail is maintainable in the case of Child In Conflict With Law.
“59. Thus, taking a holistic
view and balancing the rights and
remedies, one can reach a safe conclusion
that the jurisdiction of a High Court or the
Court of Sessions under Section 438
Cr.P.C. does not get extinguished by the
provision of Section 12 (1) of the J.J. Act
and a child in conflict with law, thus, is
also entitled to invoke Section 438 Cr.P.C.
for grant of anticipatory bail and the same
would warrant consideration if it falls
within the parameters of the grant of the
same, which includes the gravity and
seriousness of the accusations, the
criminal antecedents etc. with a further
consideration of exceptional situations of
bringing him into association with any
known criminal, exposing him/her to
moral, physical or psychological danger or
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situations, as carved out under the proviso
to Section 12(1) of the J.J. Act, can be
relevant considerations. There is however,
no ambiguity on the point that once the
anticipatory bail is either granted or
rejected to a child in conflict with law, by
the Sessions Court or High Court, in both
the situations, he/she is required to
appear before the J.J. Board within a
reasonable period of time as fixed by the
Court passing such order, for participating
in further proceedings relating to enquiry,
proper assessment of age and other
proceedings, strictly adhering to the
scheme of the Act.”
9. Learned APP submitted the Act is a complete
code governing the procedure to be followed in respect of
children in conflict with law. Sections 10 and 12 of the Act
envisage only the apprehension of a child and his production
before the Juvenile Justice Board, which is vested with the
jurisdiction to consider his release on bail. The legislature
having provided a special mechanism for dealing with such
children, the provisions relating to anticipatory bail under
Section 482 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (corresponding to Section 438 CrPC) cannot be
invoked.
10. Learned Public Prosecutor further submits that
a Coordinate Bench of this Court, presided over by Hon’ble
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Mr. Justice Chakradhari Sharan Singh in Raushan Kumar
[Cr. Misc. No. 19029 of 2016], Nitish Kumar [Cr.
Misc. No. 43377 of 2017], Ranjit Kumar [Cr. Misc.
46301 of 2019] has held that an application for
anticipatory bail by a child in conflict with law is not
maintainable, having regard to the scheme of the Juvenile
Justice Act. It is also pointed out that all aforesaid
judgments/orders were not taken note by co-ordinate Bench
while dealing with Rohit Kumar Yadav case(supra).
11. It would be apposite to reproduce the aforesaid
relevant judgments which are here as follows:
Cr. Misc. No. 19029 of 2016
“Heard learned Counsel for the
petitioner and learned Additional Public
Prosecutor for the State.
This application, for grant of
anticipatory bail, arises out of Supaul SC/ST
Police Station Case No. 13 of 2012, disclosing
offences under Sections 341, 323, 379, 504,
506/34 of the Indian Penal Code and Section 3
(i) (x) of the Schedule Castes and Schedule
Tribes (Prevention of Atrocities) Act.
It has been stated on behalf of the
petitioner that the petitioner is a juvenile.
Section 12 of Juvenile Justice (Care
and Protection of Children) Act, 2000, describes
that “when any person accused of a bailable or
non-bailable offence, and apparently a juvenile, is
arrested or detained or appears or is brought
before a Board, such person shall,
notwithstanding anything contained in the Code
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of Criminal Procedure, 1973, or in any other law
for the time being in force, be released on
bail …..”.
Since there is mandatory provision
under Section 12 of the Juvenile Justice (Care
and Protection of Children) Act, 2000, for grant
of bail, this application for anticipatory bail cannot
be entertained.
This application is accordingly rejected
as not maintainable.”
Cr. Misc. No. 43377 of 2017
“Heard the parties.
This application, for grant of
anticipatory bail, arises out of Laukahi P.S. Case
No. 88 of 2017, corresponding to G.R. No. 40 of
2017, disclosing offences under Section 376 of
the Indian Penal Code and Section 4/6 POCSO
Act.
The date of birth of the petitioner has
been shown as 05.02.2002 in the registration
card, issued by the Bihar School Examination
Board, Patna, which has been brought on record
by way of Annexure-2 to this application.
No plea of juvenility has been taken in
the application.
In view of the date of birth, as
mentioned in the said registration card, on which
the petitioner is placing reliance, this application
for grant of anticipatory bail cannot be
considered, if the petitioner is a juvenile.
This application is, accordingly,
rejected.
It is made clear that the observation
made in this order will not be construed as any
finding on the point of petitioner’s juvenility. It
will be open to the petitioner to raise the question
of juvenility in accordance with law in appropriate
proceeding.
The application stands disposed of.”
Cr. Misc. 46301 of 2019
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“Heard learned counsel for the parties.
This application for anticipatory bail
arises out of Sirdalla P.S. Case No. 153 of 2019,
disclosing the offence under Sections 341, 504,
34 of the Indian Penal Code.
The age of the petitioner as disclosed
in the First Information Report is 16 years which
has not been disputed in the application seeking
anticipatory bail.
Since the petitioner is a juvenile, this
application for anticipatory bail cannot be
maintained and is accordingly rejected but with
observation that petitioner shall be at liberty to
take appropriate step in accordance with law.”
12. Having bestowed anxious consideration to the
rival submissions and upon an examination of the scheme of
the Juvenile Justice (Care and Protection of Children) Act,
2015, this Court is, prima facie, inclined to concur with the
view that an application seeking anticipatory bail at the
instance of a child in conflict with law is maintainable. The
Juvenile Justice (Care and Protection of Children) Act, 2015
is a beneficial and reformative legislation enacted to give
meaningful effect to the constitutional mandate embodied in
Article 21 of the Constitution of India. The expression “life”
and “personal liberty” under Article 21 has consistently
received an expansive interpretation by the constitutional
courts to include the right to live with dignity, the right to
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fair, just and reasonable procedure, and the right to
rehabilitation and reintegration into society. In the context of
children alleged or found to be in conflict with law, the
constitutional guarantee under Article 21 assumes a
heightened significance, as every decision affecting the
liberty of a child must be guided by the paramount
consideration of the child’s best interests, dignity, and
opportunity for reformation rather than retribution. Such an
interpretation appears to be in furtherance of the salutary
object of the Juvenile Justice Act and the constitutional
mandate enshrined under Article 21 of the Constitution of
India, which guarantees protection of life and personal
liberty.
13. The jurisprudential foundation of the Juvenile
Justice Act rests upon the modern theory of restorative and
reformative justice, which recognises that children, owing to
their evolving mental and emotional development, possess
greater capacity for change and rehabilitation. The object of
the Act is not to stigmatise or punish a child as an ordinary
offender but to facilitate his or her reintegration into society
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as a responsible citizen. The statutory framework, therefore,
embodies constitutional values of human dignity, fairness,
equality of opportunity, and substantive justice, all of which
flow from Article 21. The Supreme Court has repeatedly
emphasised that the Juvenile Justice Act is a welfare-
oriented legislation and its provisions must receive a liberal
construction to advance the constitutional vision of protecting
childhood and preserving the dignity of every child. The
legislative policy, read in the light of Article 21, obligates all
courts to balance the interests of society with the
constitutional imperative of rehabilitation, reintegration, and
the best interests of the child, thereby ensuring that justice
under the Act remains reformative rather than punitive.
14. At the same time, this Court cannot lose sight
of the fact that there exist divergent views rendered by
Coordinate Benches of this Court on the very same question
of law. While one Coordinate Bench has held that an
application for anticipatory bail at the instance of a child in
conflict with law is not maintainable, another Coordinate
Bench has taken a contrary view holding such an application
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to be maintainable. Judicial propriety and institutional
discipline require that a Coordinate Bench should not take a
view contrary to that expressed by another Coordinate Bench
of equal strength. If a different view is considered
appropriate, the only permissible course is to refer the
matter to a Larger Bench for an authoritative
pronouncement.
15. This juncture would be the apt moment to
quote the relevant extract of para-8 of the judgment in the
case of Sundeep Kumar Bafna Vs. State of Maharashtra
reported in (2014) 16 SCC 623.
“8…..like the science of physics, law
also abhors the existence of a vacuum, as is
adequately adumbrated by the common law
maxim viz. “where there is a right there is
remedy”. The universal right of personal liberty
emblazoned by Article 21 of our Constitution,
being fundamental to the very existence of not
only to a citizen of India but to every person,
cannot be trifled with merely on a presumptive
plane…..”
16. Accordingly, notwithstanding the prima facie
opinion of this Court that the remedy of anticipatory bail is
maintainable and that such an interpretation subserves the
mandate of Article 21 of the Constitution. The constitutional
philosophy underlying Article 21 requires that every
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procedure prescribed under the Juvenile Justice Act must be
interpreted in a manner that advances the welfare of the
child and not in a manner that defeats it. Any interpretation
which unnecessarily curtails the liberty of a child or
frustrates the rehabilitative object of the legislation would be
inconsistent with the constitutional guarantee of a fair, just
and humane legal process. Consequently, the provisions of
the Juvenile Justice Act deserve a purposive and child-centric
interpretation, ensuring that procedural safeguards are not
reduced to mere formalities but operate as effective
constitutional protections. This Court considers it appropriate
to refer the issue for consideration to the strength of a larger
Bench, so that the conflict between the decisions of the
Coordinate Benches may authoritatively resolved in the best
interest of Child In Conflict With Law(CICL).
17. Accordingly, Registrar(list) is directed to place
this matter immediately before Hon’ble The Acting Chief
Justice, for placing the matter before the Bench of larger
strength to settle the issue qua maintainability of
anticipatory bail in respect of child in conflict with law
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(CICL).
18. Till consideration of larger Bench on the
subject, let no coercive steps shall be taken against
petitioner.
(Chandra Shekhar Jha, J.)
Aniket/-
U T
