The power to grant anticipatory bail under Section 438(1) of the Code of Criminal Procedure, 1973, is concurrent between the High Court and the Court of Session, and the rejection of an application by one court does not bar the filing of a second application in the other court.

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 under section 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 under section 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.

2. This petitioner is an accused in a case under section 420 of the Indian Penal Code and a copy of the first information report has been filed which is Annexure-1. The petitioner had apprehension that he may be arrested and, therefore, he moved thy 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.

3. 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.

4. 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 necessary 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."

Anticipatory bails are granted under section 438 of the Code and the relevant portion for the purpos