Section 438 of the Code of Criminal Procedure, 1973 gives the petitioner for anticipatory bail a choice of selecting the forum for filing the petition - to choose either the High Court or the court of Session.

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, therefore, requires consideration. It reads as follows :-

438. :- Direction for grant of 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 a direction under this section; and that Court may, if it thinks fit, direct that in the event to such arrest he shall be released on bail.

The question, therefore, is whether according to the provision as mentioned above the applicant is to apply to one of the Courts, namely, the High Court and the Court of Session for his redress, or in other words, whether the petitioner has the choice only of one of the alternatives namely High Court or the Court of Session to approach for the redress or whether according to the provision, the petitioner may approach the High Court if his application for anticipatory bail is rejected by the Court of Session.

4. We have seen in provision quoted above that the petitioner "may apply to the High Court or the Court of Session." There is the word "or", a conjunction in between "the High Court" and "the Court of Session." First of all we are to see the plain meaning of language used in sub-sec. (1) of S. 438 of the Code. For that purpose we are to see also the grammatical construction of the sentence used. F. J. Rowe and W. T. Webb in "Hints on the Study of English" mention 4 uses of the conjunction "or"

(1) It is strongly alternative:

(2) It has little or no alternative force :

(3) It introduces an alternative name or synonym.

(4) It is used for 'otherwise':

In "English Grammar Series" Book IV by J. C. Nesfield, we also get that the conjunction "or" has four separate meanings or uses-

(a) An alternative or exclusive sense :

(b) An inclusive or non-alternative sense where "or" is merely equivalent to "and":

(c) To indicate that one word is synonymous or nearly synonymous with another and

(d) As an equivalent to "otherwise." In this Treatise we get four kinds of co-ordinating conjunctions, namely cumulative, alternative, adversative and illative. At page 104 of this Book of 1946 Edn., we get illustrations and the conjunctions in respect of four kinds already mentioned. By 'alternative' is meant 'choice' offered between one and another and in this use we find the conjunction "or." A reading of the simple language used in sub-sec. (1) of S. 438 we get the clear and unambiguous meaning that the petitioner for anticipatory bail may apply to either of the Courts, namely, the High Court and the Sessions Court. He will have choice for one of the alternatives, that is to say, either he is to apply to the High Court or to the Sessions Court. Here the word "or" has been used in alternative or exclusive sense. This would be further evidenced fr