G.L. Oza J.

1. This is a petition filed by the petitioner under section 438 of the Code of Criminal Procedure.

2. According to the petitioner, an offence under section 436 IPC is registered against him and it is apprehended that he may be arrested and harassed as there is publicity created against the petitioner. He has also filed a pamphlet although he has also submitted an affidavit purporting to be of the person in whose name the pamphlet has been published, to show that the pamphlet has been wrongly published in his name.

3. Learned counsel for the State contended that although an offence under section 436 IPC is registered and investigation is going on, but there is nothing at present to indicate that there is any apprehension in the mind of the petitioner. However, it is contended that it may depend upon the result of the investigation as to whether a case is made out against the petitioner or not.

4. Learned counsel for the State raised a preliminary objection also contenting that as an application under sect ion 438 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') was filed before the Sessions• Court and has been rejected a second application under section 438 of the Code to this Court is not maintainable as according to learned counsel an application could only be made either to the High Court or to the Court of Session. In support of his contention learned counsel placed reliance on a Division Bench decision of the Calcutta High Court reported in Amiya Kumar Sen v. State of West Bengal, 1979 Cr. L.J. 288.

5. Learned counsel for the petitioner, on the other hand, contended that apparently in a case under section 436 IPC the arrest of the petitioner by the police and keeping him in police custody would be unnecessary and injurious to his reputation as there is no occassion for any recovery being made at his instance except harassment of the petitioner by the police. As regards the preliminary objection, it was contended that in section 438 of the Code the conjunction used 'or' is the same as used in section 397 of the Code, and in section 397, where the Legislature intended to bar two revision applications, one to the Sessions Judge and another to the High Court, they, by providing sub-section (3) of that section specifically prohibited it. And in sect ion 438 as it has not been prohibited, it is apparent that the Legislature felt that the applicant may under section 438 apply to the High Court as well as to the Court of Session.

6. In 1979 Cr. L.J. 288 (supra), the use of the word 'or' in English language has been considered and it has been found that this term can he used in four ways:

"(a) An alternative or exclusive sence:

(b) An inclusive or non-alternative sence where 'or' is merely equivalent to 'and';

(c) To indicate that one word is synonymous or nearly synonymous with another; and

(d) As an equivalent to 'otherwise'."

And out of these four possible uses of the conjunction 'or' in this decision it was accepted that it was in the sense (a), i.e., alternative or exclusive, that this word has been used and on this basis it was observed that once an application under section 438 of the Code is rejected by the Sessions Court a similar application un the same facts and for the same offence could not be made to the High Court under section 438 of the Code. In this decision the language of sections 439 and 397 of the Code has also been considered but for these two provisions it was felt that the term 'or' has been used in the sence (b), i.e., where 'or' is equivalent to 'and'.

7. Section 438 falls in the Chapter 'Provisions as to Bail and Bonds'. Section 438 provides for an application to the High Court or the Court of Session. The term used is 'or' and there is nothing else in the provision to indicate that this word 'or' has been used in the sence that it is alternative or exclusive. Such language has been used also in section 439 occurring in the same Chapter of the Code where the phrase used is '