R. Bhattacharya, J.:- This is an application under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail filed by the petitioner Amiya Kumar Sen in connexion with the Tollygunge P. S. Case No. 312 dated 2-5-1978 under S. 120B/ 408/477A/109 of the Indian Penal Code. It is being opposed by Mr. Biren Mitra, the learned public prosecutor assisted by Mr. N. A. Chowdhury. Mr. Amulya Kumar Mukherjee, the learned Advocate appears on behalf of the petitioner.

2. A preliminary objection has been taken by Mr. Mitra regarding the maintainability of the application on the ground that when the petitioner filed an application before the learned Sessions Judge under S. 438 of the Code of Criminal Procedure, 1973 and the same was rejected, the second application before the High Court in connexion with the same case and on the same grounds, is not maintainable according to the provision under Section 438 itself. Mr. Mukherjee's contention, however, is that even if an application before the Court of Session is rejected, a second application on the same grounds before the High Court is legal.

3. The sub-sec. (1) of Section 438 of the Code of Criminal Procedure, 1973, therefo