IMPORTANT POINT
Where first application for anticipatory bail was dismissed by Sessions Court, it does not debar another application to the High Court under section 438 Criminal Procedure Code.

JUDGMENT

Dr. G. F. Couto J. - This, application under Section 438 Cr. P. C. is filed by one Devidas Raghu Naik on the grounds that it appears that an incident of illegal felling of trees had taken place and therefore, criminal proceedings had been instituted. Some people who are on inimical terms with the applicant had falsely and maliciously implicated him in the said incident and therefore, he apprehends that he may be arrested for a non-bailable offence regarding the said cutting of the trees. He further states that he has moved an application for anticipatory bail before the Sessions Court, Margao, but the same was dismissed by Order dated 10th September, 1987.

2. In view of the above statement that a similar application for the same facts has been moved before the Sessions Court, Margoa, and dismissed, the question arose whether the present application under Section 438 Cr. P.C. was maintainable.

3. Mr. Bruto D'Costa, the learned counsel appearing for the applicant, placing reliance on the decision of the Kerala High Court in 'Gopinath v. State of Karela1 and of the Supreme Court in 'Gurcharan Singh & Ors. v. State2 submitted that the powers for granting anticipatory bail are concurrent and both the High Court and the Sessions Judge have jurisdiction to deal with and dispose such application irrespective of the circumstances of one of them having been moved in the first instance- However, the learned counsel submitted that on account of the decorum of the Courts, if the High Court was first approached and it refused to grant anticipatory bail, the Sessions Judge should always dismiss the application and the proper remedy in such circumstances is to approach the High Court itself for variation of its earlier order.

4. In his turn, Mr. Bhobe, the learned Public Prosecutor placing reliance on the decision of the Calcutta High Court in 'Amiya Kumar Sen v. State of West Bengalo3 urged that the present application is not maintainable.

5. In Amiya Kumar Sen's case a Division Bench of the Calcutta High Court addressed itself to the very same question that falls for my determination. After analysing grammatically the provision of Section 438 and in particular, the word 'or' appearing there in, observed that the said word has four meanings and it means:-(i) a strong alternative; (ii) that it has little or no alternative force; (iii) that it introduce an alternative name or synonym and (iv) that it is used for "otherwise". The learned Judges then held the view that the word "or" occurring in Section 438 Cr. P. C. has the meaning of "alternative" unlike what happend with similar words that appear in Sections 439 and 397 Cr. P.C. On the basis of this reasoning, the Division Bench of the Calcutta High Court held the view that a fresh application under Section 438 Cr. P.C. is not maintainable when one similar application had been already disposed of and dismissed either by the Sessions or the High Court.

6. A different view was however, taken by a Single Judge of the Kerala High Court in Gopinath's case (above). The learned Judge held that the word "or" occurring in sections 397, 438 and 439 has always an alternative meaning and that there is no reason whatsoever to hold that the said word means "and" in Sections 397 and 439, as held by the Calcutta High Court in the above mentioned authority. Dealing with the said case, the learned

Judge of the Kerala High Court observed as under :-

"With due respect to the learned Judges who decided that case I beg to disagree. I do not think that the section was intended to give a restricted forum in the sense that when one forum is chosen the jurisdiction of the other is excluded. There cannot be any dispute that an accused is having the freedom to approach the Court of Session or the High Court under S. 438. But the question is only whether an accused who approached the Court of Session and got defeated is, precluded from moving the High Court for the same relief I am of the view that he is not pre