( 1 ) THE question that has arisen for the consideration of this Special Bench is as to whether a person can make an application to the High Court for anticipatory bail under Section 438 of the Code of Criminal Procedure, after making a similar application under the same Section to the Court of Sessions without success. Two of our learned Judges sitting in Division have differed on this question, Khastgir, J. , holding that such an application is maintainable and that the earlier Division Bench of this Court in Amiya Kumar Sen v. State (1979 Criminal Law Journal 288): to the contrary was wrongly decided, while A. C. Sengupta, J. , holding such an application 'to be incompetent and that the aforesaid Division Bench, decision laid down the correct law.

( 2 ) SECTION 438 of the Code of Criminal Procedure, 1973, dealing with "direction for grant of bail to person apprehending arrest", generally referred to in common legal parlance as "anticipatory bail", provides that -" (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 dire