Is an application for anticipatory bail at the instance of a child in conflict with law maintainable before the High Court or the Court of Session? This question essentially falls for consideration in this application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code').

2. The petitioner is the third accused in the case registered as Crime No.349/2018 of the Hosdurg police station under Sections 143, 147, 148, 341 and 307 read with 149 I.P.C. He seeks the protection envisaged under Section 438 of the Code in case of his arrest by the police in the aforesaid case.

3. The prosecution case is that on 31.03.2018, at about 19.30 hours, at the road near the house of the de facto complainant, about 50 persons including the accused in the case attacked him and his friends with deadly weapons and that they made attempt to commit murder of the friend of the de facto complainant by name Nandu. It is alleged that the accused threw stones towards the de facto complainant and his friends and that the second and the third accused wrongfully restrained Nandu and that the second accused beat on the head of Nandu with an iron rod with the intention to kill him.

4. I have heard the learned counsel for the petitioner and the learned Public Prosecutor and perused the case diary.

5. Learned counsel for the petitioner would submit that the petitioner is a child in conflict with law as defined under the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as 'the Act') and that the petitioner is entitled to get every protection and privilege provided under the Act to such a person.

6. Section 2(13) of the Act states that a “child in conflict with law” means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. The incident in this case occurred on 31.03.2018. The petitioner has produced a copy of his birth certificate. It shows that his date of birth is 21.06.2000. Therefore, on the date of commission of the offences, the petitioner had not completed the age of 18 years. It follows that, prima facie, he is a child in conflict with law as defined under the Act.

7. Section 438(1) of the Code provides that where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under that section that in the event of such arrest he shall be released on bail.

8. The following conditions are required to be satisfied for maintaining an application under Section 438(1) of the Code:(1) The applicant is accused of having committed a non-bailable offence (2) He entertains an apprehension or belief that he may be arrested on accusation of having committed such offence and (3) The apprehension or belief entertained by him is reasonable.

9. In Gurbaksh Singh Sibbia v. State of Punjab : AIR 1980 SC 1632, a Constitution Bench of the Supreme Court has held as follows:

“Section 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe' that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that 'some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrest