Khastgir, J.: In this application under section 438 of the Criminal Procedure Code, the petitioner contended that in view of the amendment that bas been incorporated to the said section by an Act of the West Bengal Legislature being West Bengal Act No. XXV of 1990 introducing the amendment to the Code of Criminal Procedure (West Bengal Amendment Act of 1988) to section 438 of the Act 2 of 1974, the Police can arrest the petitioner during the pendency of the application for the anticipatory bail in view of the intention of the legislature having been expressed in the said section to prevent a person to move freely by simply filing an application for anticipatory bail.

2. The de facto complainant in the instant case contended that the order passed by the learned District Sessions Judge on 13th November, 1992 ex parte without referring to any materials as contained in the case Diary was illegal and violative of the provisions introduced by this amendment which was mandatory in nature. The provisions of section 438 were introduced by the amendment Act of 1973, in the Original Code of 1898 there was no such provision earlier. It is only at the recommendations of and as per the 48