1. Petitioner apprehends his arrest in Tekari PS Case No. 59 of 2001 registered under Sections 302, 120-B, 147,148, 149, 447, 307 and 366 of the Indian Penal Code and 27 of the Arms Act giving rise to Sessions Trial No. 61 of 2003 and prays for grant of anticipatory bail.

2. On the basis of the report given to the police, Tekari PS Case No. 59 of 2001 was registered under Sections 147, 148,149, 447, 307, 364 and 302/120-B of the Indian Penal Code and 27 of the Arms Act. Petitioner as also other persons figured as accused in the said case.

3. Police after investigation submitted charge-sheet against some of the accused persons but petitioner was not sent up for trial. The report submitted by the police was considered by the Chief Judicial Magistrate and by order dated 3.5.2002 the proceeding against the present petitioner was dropped. Ultimately case was committed to the Court of Session. After the evidence was led, an application was filed for summoning the petitioner to face trial in exercise of the power under Section 319 of the Code of Criminal Procedure (for short the Code) which was acceded to by the learned Additional Sessions Judge in seisin of the trial.

4. Petitioner thereafter filed an application for grant of anticipatory bail before the Session Judge which was registered as Anticipatory Bail Petition No. 1125 of 2004. The Learned Sessions Judge by the impugned order rejected the prayer of the petitioner for grant of anticipatory bail, inter alia, observing that when trial is being held in a parallel Court of Session having similar judicial power and function, no such anticipatory bail is entertainable.

5. Mr. Rana Pratap Singh, Senior Advocate appearing on behalf of the petitioner submits that the view taken by the learned Session Judge while rejecting the prayer of the petitioner for grant of anticipatory bail that the same is not entertainable is erroneous in law. Mr. M.N.A. Khan, Additional Public Prosecutor appearing on behalf of the State and Mr. Satyanand Sharma, appearing on behalf of the informant, however, contend that the view taken by the learned Sessions Judge is in conformity with the scheme of the Code, which does not call for interference by this Court.The submission advanced necessitated examination of the scheme of the Code and in this connection one has to consider Section 438 of the Code, which confers power to issue direction for grant of bail to persons apprehending arrest, relevant portion whereof reads as follows :

"438. Direction for grant of a 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 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. (Underlining mine)

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6. Form a plain reading of the aforesaid provision it is evident that it is the Court of Session, in the context, which has been conferred with the power to give direction for grant of bail to person apprehending arrest. Now the question is whether such a power can be exercised by the Additional Sessions Judge or in other words Additional Sessions Judges come within the expression "Court of Session" for the purpose of Section 438 of the Code. For this one has to refer to Section 9 of the Code which inter alia provides for constitution of Court of Sessions, it reads as follows :

"9. Court of Session(1) The State Government shall establish a Court of Session for every sessions division.

(2) Every Court of Sessions shall be presided over by a Judge, to be appointed by the High Court.

(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. xx xx xx xx"

7. Section 9 of the Code casts an obligation on the State Government to establish a Court of Session for every Session Division wh