The rejection of an application under S. 438 by the Sessions Judge is not a bar to the High Court entertaining an application for the same relief, and the High Court has supervisory jurisdiction over all courts and tribunals within its jurisdiction under Art. 227 of the Constitution.

The two questions arising for consideration in this application filed under S. 438 of the Cr.P.C. are (1) Whether the rejection of an application under S. 438 by the Sessions Judge is a bar to a second application being filed before the High Court, and (2) If there is no such bar whether this is a fit case for anticipatory bail.

2. One Sahadevan wanted his son to be admitted in the Dental College, Manipal. He approached the petitioner who offered to secure admission if Rs. 14,000/- is paid. The amount was paid. Son of Sahadevan got admission. But Sahadevan moved the police alleging that petitioner cheated him and he secured admission for his son through some other source. Petitioner apprehends that he may be arrested on an accusation of cheating. The application was opposed on the ground that the apprehension is not correct. That means the petitioner is likely to be arrested on the above accusation.

3. An application filed by the petitioner under S. 438 was rejected by the Sessions Judge. That order is contended to be a bar in moving this Court again for the same relief. Amiya Kumar v. State of West Bengal, 1979 Cri LJ 288 (Gal) was relied on in support of the argument. In that decision it was held :

"We have given our best consideration to the provision contained in S. 438 of the Cr.P.C., 1973 and the language used therein and we have no doubt to hold that the said section gives the petitioner for anticipatory bail a choice as to the forum where he is to apply. Two Courts are empowered to grant bail under S. 438, namely, the High Court and the Court of Session, but the petitioner may choose one of the two Courts and apply to the Court of his choice. We cannot hold that if the petitioner approaches the Court of Session for the relief under S. 438 and if his prayer is rejected, he will be again entitled to approach the High Court for the same relief on the same ground under that Section. In the present case, therefore, the second petition for anticipatory bail by the petitioner before this Court is not maintainable after the rejection of the first one by the Court of Session."

Section 438(1) of the Cr.P.C. reads:

"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 of such arrest, he shall be released on bail."

The Section says "may apply to the High Court or the Court of Session". The conjunction 'or' appearing in between 'High Court' and 'the Court of Session' was held in that decision to have been used in an alternative or exclusive sense in contradiction with the term used in Ss. 397 and 439 in non-alternative sense as equivalent to 'and'. With due respect to the learned Judges who decided that case I beg to disagree. I do not think the section was intended to give a restricted forum in the sense that when one forum is chosen the jurisdiction of the other is excluded. There cannot be any dispute that an accused is having the freedom to approach the Court of Session or the High Court under S. 438. But the question is only whether an accused who approached the Court of Session and got defeated is precluded from moving the High Court for the same relief. I am of the view that he is not precluded. The fact that the concerned person is given the freedom of applying to the High Court or the Court of Session need not necessarily mean that when the Court of Session is moved the option has become final and the approach to the High Court is thereafter barred. By the use of the word 'or' in sub-sec. (1) the legislature has invested the Court of Session and the High Court with concurrent jurisdiction. If the accused makes an application to the Sessions Judge and the same is rejected, nothing in the Code prevents him from making a subsequent application to the High Court. That jurisdiction of the High Co