1. Question of law referred to this Bench for decision on a reference made under Rule 32 of the High Court of Chhattisgarh Rules, 2007 is as follows :-

"Whether the application at the behest of a Juvenile before the Sessions Court or High Court under Section 438 Cr.P.C. would lie?"

2. The aforesaid reference arises out of an application for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 filed by the applicant herein, who is a child in conflict with law (For short "CICL") being less than 18 years, apprehending his arrest in connection with Cr. No.90 of 2016 registered by the police of Police Station Sakti for alleged commission of offence punishable under Section 341, 294, 506, 186, 332, 353/34 of IPC. The CICL moved this Court praying that he may be granted anticipatory bail as he is being falsely implicated though he has not committed any offence. The CICL initially moved an application for grant of anticipatory bail before the Sessions Judge. However, the application was rejected on the ground that the applicant is a CICL, therefore, petition under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable in view of the dictum laid down in the M.Cr.C.(A)No.1 104 of 2014 (Preetam Pathak v. State of Chhattisgarh) decided by the learned Single Judge of this Court on 17-12-2014. While hearing the application for grant of anticipatory bail, it was argued that the decision in the case of Preetam Pathak (supra) is contrary to the view already taken in another case of Mohan v. State of Chhattisgarh 2005 (1) CGLJ 320, wherein it has been held that Juvenile Justice (Care and Protection of Children) Act, 2000 (In short "the Act of 2000") does not take away the power and jurisdiction of the High Court or the Court of Sessions regarding bail as provided under Section 438 and 439 of the Code of Criminal Procedure, 1973 and the aforesaid decision was not brought to the notice of the Court while deciding anticipatory bail application in the case of Preetam Pathak (supra). While hearing the anticipatory bail application in the present case, relying upon the dictum in the case of Mohan 1 (supra), the statutory scheme of the Act of 2000 and Juvenile Justice (Care and Protection of Children) Act, 2015 (In short "the Act of 2015") conjointly with the provision of anticipatory bail engrafted under Section 438 of the Code of Criminal Procedure, 1973, a different view was expressed leading to disagreement with the view taken in the case of Preetam Pathak (supra), which eventually led to reference made on the aforesaid question of law to this Bench for decision.

3. In order to answer the reference, it is considered proper to examine the legislative scheme of grant of anticipatory bail under the Code of Criminal Procedure as also that of Act of 2000, now repealed by the Act of 2015 and to find out whether in respect of a child in conflict with law within the meaning of Act of 2015, the said Act of 2015 expressly or by necessary implication excludes benefit of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.

4. In historical perspective, the Code of Criminal Procedure, 1898 did not contain any provision of anticipatory bail. The Law Commission of India in its 41st report dated 24-09-1969 pointed out the necessity of provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant "anticipatory bail". It observed in para 39.9 of its report (Volume-V), as under :-

"39.9. Anticipatory bail.-The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try