1. The learned single Judge in State of Tripura v. Samuel Ruhul Askar alias Kutti Mia [(2001) 2 GLR 546] has held that an accused before approaching this Court under section 438 of the Cr.P.C. and 439 of the Cr.P.C. should exhaust his remedy before the Sessions Judge and then file application before this Court. The other learned single Judges in Mayur Bordoloi v. State of Assam [(2013) 6 GLR 201] and in Shri Kashinath Sarkar and 4 others v. The State of Tripura [(1984) 2 GLR 93] have taken a contra view in the matter. Therefore this case related to bail application the Division Bench has seized of the matter for deciding the following question of law.

(i) Whether it is essential that a person/accused before approaching the High Court for grant of anticipatory bail under section 438 of the Cr.P.C. and grant of bail under section 439 of the Cr.P.C. should exhaust his remedies before the Sessions Court and then file application before the High Court.

2. The provisions of sections 438 and 439 of the Code of Criminal Procedure, 1973 are reproduced hereunder for convenient reference.

"438. Direction for grant of bail to person apprehending arrest. (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or Court of Session for a direction under this Section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following of actors, namely:-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail;

Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the applicant for grant of anticipatory bail, it shall be open to an officer-in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

439. Special powers of High Court or Court of Session regarding bail.-

(1) A High Court or Court of Session may direct--

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody"

3. Senior counsels Sri N. Dutta and Sri B.D. Konwar were appointed as amicus curiae to assist the Court in the matter.

4. Sri N. Dutta and Sri B.D. Konwar, the senior counsels for the petitioner and for the state the state public prosecutor submitted their arguments.

5. The power and jurisdiction of the Sessions Court and the High Court is concurrent in granting anticipatory bail under section 438 of the Cr.P.C. and bail however under section 439 of the Cr.P.C. It is seen that in majority of the bail applications filed before