J. P. CHATURVEDI, J.

( 1 ) THIS reference arises out of two applications for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973. Criminal Misc. Bail Application No. 4386 of 1975 is by Onkar Nath Agrawal, Rajendra Nath Agrawal and Mahendra Nath Agrawal, who were alleged to have committed a non-bailable offence under Section 7 read with Section 3 of the Essential Commodities Act and Tractors (Distribution and Sale) Control Order, 1971. Criminal Misc. Bail Application No. 4408 of 1975 is by Jyoti Prasad Misra, who apprehended his arrest for an offence under Rule 43 read with Rule 36 of the Defence of India Rules and under Section 121 of the Indian Penal Code.

( 2 ) A preliminary objection as to the maintainability of the applications in the High Court appears to have been taken by the learned Government Advocate inasmuch as the applicants did not move the Sessions Judge concerned before making an application for anticipatory bail in the High Court. Accordingly the following question has been referred to us:

Whether an application for anticipatory bail under the provisions of Section 438 of the Code of Criminal Procedure, 1973, is maintainable in the High Court

Click Here to Read the rest of this document