( 1 ) A learned Single Judge has referred these matters for consideration by a Division Bench as there is divergence of judicial opinion on the question as to whether it is obligatory that an application under Section 438 of the Code of Criminal Procedure 1973 should first be filed in the Court of Session ?

( 2 ) ALL these petitions are sought to be filed under Section 438 seeking anticipatory bail. The Registry, at the stage of numbering, inter alia, has taken an objection as to the maintainability on the ground that the petitioners did not approach the Court of Session. When the matters came up for consideration of the objections raised by the Registry, a learned single Judge on 15-12-1992, after noticing the legal position that the Himachal Pradesh High Court in Mohanlal v. Prem Chand, AIR 1980 HP 36 has taken the view that it is for the petitioner to move either the Court of Session or the High Court under Section 438 but the Karnataka High Court in K. C. Iyya v. State of Karnataka, 1985 Cri LJ 214 (Karnataka), the Allahabad High Court in Onkar Nath v. State, 1976 Cri LJ 1142 (Allahabad), and the Gujarat High Court in Rameshchandra v. State of Gujarat, 1988 Cri LJ 210 (Gujarat) expressed the opinion that in exceptional cases under Section 438 it is open to the High Court to entertain applications in the first instance, felt that, as this question is frequently cropping up for consideration and as there is no authoritative pronouncement by this Court, the matter may be considered by a Division Bench. In consequence of the aforesaid order of reference, these matters have been listed before us.

( 3 ) IN view of the importance of the question we have requested Sri. K. G. Kannabhiran, Senior Advocate, to assist us as Amicus Curiae. The question is whether an application under S. 438 is maintainable in the High Court without the party approaching the Court of Session in the first instance Section 438 (1) reads :"438. 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. "for the first time, in the Code of Criminal Procedure, 1973 power was conferred on the High Court and the Court of Session to issue directions to appropriate authority to release a person on bail in the event of his being arrested. The earlier Codes of Criminal Procedure did not have such an analogous position but it was felt that in exercise of inherent power such a direction could be granted by a High Court and on this aspect there was conflict of judicial opinion which was noticed by the Law Commission of India in its 41st Report dated September 24, 1969. The rationale for incorporating a provision for directing release of a person on bail prior to his arrest, in the words of the Law Commission, is :"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. We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter. "the suggestion of the Law