J. ESWARA PRASAD, J.

( 1 ) THE question that arises for consideration in both these crimi nal petitions is whether the High Court or the Sessions Court can grant bail to the petitioners under Section 438 of Cr. PC while they are accused of the offences punishable under the Karnataka Forest Act, 1963 ('the Act' for short) and apprehend arrest at the hands of the Range Forest Officer.

( 2 ) THE petitioners in Cr. P. Nos. 1601 and 1682 of 1994 are accused of offences under Sections 84, 86, 87 and 71 (a) of the Act and FIRs were filed before the JMFC, Thirthahalli in Crime Nos. 154/94 and 177/94 respectively. Appre hending arrest, the petitioners filed petitions be fore the Principal Sessions Judge, Shimoga un der Section 438, Cr. PC for the grant of anticipa tory bail. The learned Sessions Judge dismissed the petitions holding that the petitions are not maintainable, following the decision of the learned single Judge in Shankar Nayak v. State of Karnataka (1991 Crl LJ 1468 ). The petitioners filed Cr. P. Nos. 1601 and 1682 of 1994 which were heard by the learned single Judge and the matters are referred to the Division Bench as there was a conflict of decisions in 1991 Crl LJ 1468 (Kant) and in Gaffarsab v. State of Karnataka (1991 (1) Kar LJ 12) : (1991 Cri. LJ 2136 ).

( 3 ) THE learned counsel for the petitioners contended that Section 438, Cr PC empowers the High Court and the Sessions Court to grant anticipatory bail to any person apprehending arrest at the hands of a police officer or any other officer empowered to arrest under any other law and that the decision of Ramachandraiah, J. , in Shankar Nayak's case 1991 Cri LJ 1468 (Kant) (supra) is not correct as the same learned Judge took a view in Gaffar Sab's case 1991 Cri LJ 2136 (Kant) (supra) that anticipatory bail can be granted, which represents the correct view. On the other hand, the learned Government Pleader contends that anticipatory bail cannot be granted as no directions can be issued to a Forest Officer or any other officer who is not a police officer within the purview of Sub-Section (3) of Section 438, Cr. P. C.

( 4 ) IN order to appreciate the rival contentions it is necessary to set out Section 438, Cr PC. : -"438 (1) When any person has reason to be lieve 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 or the Court of session makes 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, including - (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under Sub-Section (3), of Section 437, as if the bail were granted under that Section. (3) If such person is thereafter arrested with out warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cog nizance of such offence decided that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in con formity with the direction of the Court under Sub-Section (1)".

( 5 ) A reading of Sub-Section (1) of Section 438, Cr. P. C. would show that the provision is sub stantive in nature. The Hi

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