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 without such an application having been moved and rejected in the Court of Session ?

( 3 ) LEARNED Government Advocate has urged that an application under Section 439 of the Code of Criminal Procedure, 1973, is not to be entertained in the High Court unless the applicant has approached the Sessions Judge in the first instance inasmuch as there is a practice in the High Court to that effect. He has relied upon Shailabala Devi v. Emperor AIR 1933 All 678 : 34 Cri LJ 1115 (FB), Hashim v. Notified Area Moghalsarai AIR 1933 All 283 : 34 Cri LJ 1048, S. P. Dubay v. Narsingh Bahadur 1960 All LJ 880 : 1961 (2) Cri LJ 185 and Municipal Board v. Bhim Singh

( 4 ) SRI S. N. Mulla, learned Counsel for the applicants Onkar Nath Agra-Wai and others has, on the other hand, contended that a practice contrary to the express provisions of law could not prevail.

( 5 ) SECTION 438 (1) of the Code of Criminal Procedure, 1973, provides: 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. It is obvious that the provision comprises of two parts. The first part envisages of the conditions under which a person is entitled to make an application for anticipatory bail in the Court of Session or in the High Court. There are only two conditions which must exist before he can move such an application. In the first place there must exist a ground to believe that he may be arrested and secondly there must be an accusation of his having committed a non-bailable offence. The language is plain and unambiguous. It clearly contemplates two forums for moving an application for anticipatory bail, namely the Court of Session and the High Court. Both the jurisdictions are concurrent and it is left for the person to choose either of the two. The second part enables the High Court or the Court of Session, as the case may be, to give a direction for his release. The provision read as a whole does not prima facie create any bar that he must apply to the Court of Session first before coming to the High Court to seek has redress.

( 6 ) THE words "that Court may, if it thinks fit. direct etc. " make it also clear that the Sessions Judge or the High Court has a discretionary power to give a direction for release of the applicant on bail. It does not lay down any condition on the existence of which bail can be granted. When a tribunal is invested by an Act or by rules with discretion without any indication in the Act or rules of the grounds upon which the discretion is to be exercised, the Courts have declined to lay down any rules with

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