S. NAGAMUTHU, J.

The Hon'ble The Chief Justice has referred to this Division Bench to answer the following question of law:

“Whether an application seeking anticipatory bail under Section 438 of the Code of Criminal Procedure at the instance of a juvenile in conflict with law in terms of the Juvenile Justice (Care and Protection of Children) Act, 2000 is maintainable before the High Court or before the Court of Sessions ?”

2. The above reference was made in view of the conflicting orders on this important legal issue. In Crl.O.P.No.6590 of 2015 a learned Single Judge has taken the view that an application under Section 438 Cr.P.C. at the instance of a juvenile in conflict with law seeking anticipatory bail is maintainable. Another learned Single Judge in Karkuvel, Minor, Vs. State, decided on 08.05.2014, has also taken the same view. But quite contrary to the same, subsequently, another learned Single Judge of this Court in Crl.O.P.No.22361 of 2015 took the view that such an application under Section 438 Cr.P.C. for anticipatory bail at the instance of a juvenile in conflict with law is not at all maintainable. The learned Judge has relied on two judgments of the Madhya Pradesh High Court in Satendra Sharma Vs. State of Madhya Pradesh in Mc.Rc.No.4183 of 2014 dated 08.07.2014 and Kapil Durgawani Vs. State of Madhya Pradesh reported in 2010 (IV) MPJR 155 and another judgment of Chattisgarh High Court in Preetam Pathak Vs. State of Chattisgarh in M.Cr.C.(A) No.1104 of 2014. These two Hon'ble High Courts have also taken the view that such a petition is not at all maintainable. Subsequently, another Hon'ble Judge of this Court (Hon'ble Mr. Justice P.N. Prakash) has changed his earlier view and has taken the view that such a petition is not maintainable. The Hon'ble Judge has interpreted the relevant provisions of law and also referred to various judgments to come to the above conclusion. We will discuss about the same a little later.

3. Apart from these orders, there are several orders passed by a number of Hon'ble Judges sitting Single taking contrary views. Thus, the issue remains volatile and the law remains uncertain. It is needless to point out that the hallmark and strength of law is its certainty. Uncertainty in understanding a law and interpreting the same will only result in chaos and confusion in the implementation of the law. Hence, this reference by the Hon'ble The Chief justice.

4. The suggestion for making a provision in the Code of Criminal Procedure empowering the High Court and the Court of Sessions for directing the release of a person on bail prior to his arrest (commonly known as anticipatory bail) was conceived by the Law Commission of India and in its 41st Report it made the following suggestion:

“Though there is 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 to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty, while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.”

5. Accepting the above recommendation of the Law Commission, the Parliament incorporated Section 438 to the Code of Criminal Procedure empowering the High Court and the Court of Sessions to issue a direction that in the event of the arrest, the arrestee shall be released on bail. Such a direction could be issued by a Court inter alia in the following circumstances. For th