P.S. Sahay, J.The short point, which has to be answered in this case, is:

If any person moves initially to the court of sessions for anticipatory bail u/s 438(1) of the Code of Criminal Procedure, 1973, and the court of Sessions rejects that application on merit, is the second application by the same person for anticipatory bail u/s 438(1) of the Code of Criminal Procedure maintainable in the High Court.

The learned Single Judge, while hearing this case at the time of admission, had his doubt and, therefore, he has referred the matter to a Division Bench at the-stage of admission itself by his order dated 31.7.1984. In view of the importance of the point involved, the case was admitted on 22.10.1984 and a direction was given that the petitioner shall not be arrested during the pendency of this application. This petitioner is an accused in a case u/s 420 of the Indian Penal Code and a copy of the first information report has been filed which is Annexure-I. The petitioner had apprehension that he may be arrested and, therefore, he moved the Sessions Judge on 12.6.1984 and the learned Judge, after hearing the parties, rejected the application by his order dated 10.7.1984, Thereafter, the petitioner moved this Court on 25.7.1984 for the same relief and that is how the matter has come to us.

2. Learned counsel appearing on behalf of the parties have submitted that this point has not been decided by this Court up-till now and, therefore, it will be our earnest endeavour to do so, considering the importance of the point involved and the question posed to us. Mr. Rana Pratap Singh No. 2, learned counsel appearing on behalf of the petitioner, has submitted that the power to grant anticipatory bail has been given to the High Court and also to the court of sessions and the power, being concurrent, can be exercised by both. He has, further, submitted that even if an application has been rejected by the Sessions Judge it. is open to this Court to entertain the application and grant relief and, in this connection, he has referred to some of the provisions of the Code of Criminal Procedure (hereinafter referred to as the Code) which I shall deal with separately. Learned counsel appearing on behalf of the State has submitted that the power to grant anticipatory bail is extra ordinary power and a person having taken a chance before a Sessions Judge he cannot move this Court again for the same relief. In other words, according to the learned counsel, such application will be barred. Now, I propose to consider their submission in detail.

3. The power to grant anticipatory bail was not under the old Code and has been introduced for the first time in the statute book by the New Code of 1973 (Act II of 1974). The Law Commission of India, in its 41st report dated 24.9.1969, made the following recommendation:

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 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 IO submit to custody, remain in person for some days and then apply for bail.

Anticipatory bails are granted u/s 438 of the Code and the relevant portion for the purpose of the application may be usefully quoted:

Direction for grant of bail to person apprehending arrest:--(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court of the Court of Session make a direction under sub-section (1) it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit....

Thus, from the aforesaid provision it is clear that if any person apprehends his arrest for having committed a non-bailable offence he may apply to the High Court or the Court of Session who are competent to give necessary direct ions in the matter. The Supreme Court had the occasion to decide the question of grant of the anticipatory bail in the case of Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, in which principles were enumerated but the point which has been specifically raised in this application was not the subject matter for consideration. Their Lordships, after considering the various provisions of the Code, held that a person, who had a reasonable belief, can move the High Court or the Court of Session which had to apply its mind and then give necessary direction but could not abdicate its function and leave it to the Magistrate himself as and when occasion would arise. Such applications could only be entertained before a person is arrested and a court could not pass any blanket order which would amount to passing an order in a vacuum.

4. Now, I will consider the cases, which have been cited by the learned counsel appearing on behalf of the petitioner, starting from the case of Mohan Lal and others vs. Prem Chandra and others [AIR 1980 HP (Full Bench) 36 ]. The point referred to the Full Bench was whether it was incumbent upon an applicant to approach the Court of Session before moving the High Court and their Lordships, after considering the relevant provisions, held that the option lies with the person concerned and a person cannot be forced to move the Sessions Judge first. He can move the High Court straightaway without moving the Sessions Judge and such application will be maintainable. Then Lordships have further held that the power given u/s 438 of the Code to the Sessions Judge and the High Court is concurrent and can be exercised by both the Courts in proper cases. Their Lordships have also observed, differing from decisions of the same Court in the cases of Vijay Nand Vs. The State of Himachal Pradesh, and Joginder Singh etc. Vs. State of Himachal Pradesh, , that the order refusing anticipatory bail was not interlocutory in character and the person, whose application was dismissed by the Sessions Judge, was at liberty to move the High Court for the same relief. A full Bench of the Allahabad High Court in the case of Onkar Nath Agrawal and Others Vs. State, was considering the question whether the application for anticipatory bail could be moved in the High Court without taking recourse to the Court of Session and it has been held that the Courts have an unforced discretion in the matter of bail u/s 4 of me Code to be exercised according to the exigency of each case and, therefore, an application in the High Court without moving the Sessions Judge was maintainable. In the case of Chhajju Ram Godara and Others Vs. State of Haryana and Another, a learned single Judge observed that section 4 of the Code gives concurrent powers to the High Court and the Court of Sessions and a person should normally move the Court of Session first before approaching the High Court. But, his Lordship has himself expressed that there cannot be an un-inflexible rule.

5. The point involved in this case has been considered and decided by a Bench of the Calcutta High Court in the case of Amiya kumar Sen Vs. State of West Bengal, . Their Lordships, after considering the various provisions 438, 439, 397 and 399 of the Code held that once the application having been rejected by the Sessions Judge the second petition for anticipatory bail by the same person before the High Court was not maintainable. while considering section 438 of the Code, their Lordships extracted the words from the section "may apply to the High Court or the Court of Session", and held that there is a word or a conjunction in between the High Court and the Court of Session and according to their Lordships it was in the nature of an alternative, meaning thereby that if a person chooses the forum of the Sessions Judge then he will not be entitled to move the High Court. With great respect I am unable to accept the interpretation and reasonings given by their Lordships. Similar language has also been used in different provisions viz. sections 397, 437, 438 and 439 of the Code but in some provisions, like sections 397 and 399 a bar has been put under sub-clause (3) and the order becomes final and the aggrieved party cannot move the other Court. The observation of their Lordships that the conjunction or has been used in non-alternative sense equivalent to and, therefore, by alternative is meant choice offered between one and another and this case or will mean alternative that is to say a person can move either the Court of Session or the High Court of Session or the High Court does not seem to be correct. In the case of Jagannath TS. State of Maharashtra ( 1981 CriLJ 1808) the learned single Judge also did not subscribe to the views of Calcutta High Court. His Lordship, while interpreting section 438 and other provisions, has held that the power to grant bail u/s 498 of the old Code were concurrent and exercisable by the Court of Session and the High Court. Though, as a matter of practice and propriety it was formerly insisted that the lower of the two courts should be approached first. In the new Code the power of the revision has not been made concurrent and, therefore u/s 397(3) it has been laid down that if one Court was moved in its revisional jurisdiction, the other shall not entertain similar application. Similar bar has been put u/s 399 sub-clause (3) of the Code. In my considered opinion therefore, differing from the Division Bench of the Calcutta High Court and accepting the view of the learned single Judge of the Bombay High Court, I come to the conclusion that in absence of any bar put u/s 438 of the Code, by no stretch of imagination it can be said that the power once exercised by the Sessions Judge becomes final and the person aggrieved cannot move this Court. Nothing prevented the Parliament from putting a similar bar in the provisions relating to bail either pre-arrest or post-arrest--and this clearly indicates what was intended by the law makers. I may also refer to section 439 of the Code which deals with the special powers of the High Court or the Court of Session regarding bail. That power has been given to the High Court and a Court of Session. Under this provision if a bail is rejected by the Court of Session then everyday we find the persons aggrieved, move the High Court for relief. In this provision also, like section 438 of the Code, there is no specific provision that if a bail is rejected by the Sessions Judge then the aggrieved person can move the High Court. On the same analogy it must be held that if a prayer for anticipatory bail is rejected by the Sessions Judge the aggrieved person has also the right to move the High Court.

6. In the case of Gurbaksh Singh Sibbia (Supra) it has been observed that there is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher Courts manned by experienced persons, secondly, their orders are not final but are open to appeal or revisional scrutiny and above all because, discretion has always to be exercised by the courts judicially and not according to whim, caprice or fancy. In absence of any provision in section 438 of the Code debarring a person from moving the High Court when he has moved the Sessions Judge, it will be adding something in the statute which is not there. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restrains and conditions which the legislature itself did not think it proper or necessary to impose. This is specially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence. It is duty of the Court to determine in what particular meaning and particular shape of meaning the word or expression are used by the law makers and in discharging the duty the Court has to take into account the context in which it occurs, the object to serve which it used, and to give harmonious construction to the various provisions of the Code in order to achieve the object. In my considered opinion, therefore, for the reasons, mentioned above, my answer to the question, which has been referred to the Bench, is that a person whose application for anticipatory bail has been rejected by the Court of Session has the liberty to move the High Court for the same relief. Now coming to the facts of this case as I have stated earlier that interim order had been passed in favour of the petitioner. It is stated by the learned counsel that charge sheet has already been submitted. In these circumstances and considering the facts of this case I direct that the petitioner, on appearance before the court concerned, will be enlarged on bail on furnishing a bond of Rs. 2,000/- (Rupees Two thousand) with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, Khagaria, in Beldaur P.S. case No. 63 dated 29.5.1984, subject to the conditions laid down in section 438(2) of the Code. The application is, accordingly, allowed.