A.M.Bhattacharjee, J. - (1.)The question that has arisen for the consideration of this Special Bench is as to whether a person can make an application to the High Court for anticipatory bail under Section 438 of the Code of Criminal Procedure, after making a similar application under the same Section to the Court of Sessions without success. Two of our learned Judges sitting in Division have differed on this question, Khastgir, J., holding that such an application is maintainable and that the earlier Division Bench of this Court in Amiya Kumar Sen v. State (1979 Criminal Law Journal 288): to the contrary was wrongly decided, while A.C. Sengupta, J., holding such an application 'to be incompetent and that the aforesaid Division Bench, decision laid down the correct law.
(2.)Section 438 of the Code of Criminal Procedure, 1973, dealing with "direction for grant of bail to person apprehending arrest", generally referred to in common legal parlance as "anticipatory bail", provides that -
"(1) 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, (2) When the High Court or the Court of Session makes a direction under sub-Section (1), it may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including......"

(3.)Our attention has been drown to a Parliamentary Bill being No, 56 of 1988, introduced in the Lok Sabha on 13th May, 1988, Clause 49 where-of seeks to amend Section 438 by inter alia omitting the words "or the Court of Session" both from sub-Sections (1) and (2) of that Section. The Bill, if and when enacted and enforced, would vest the jurisdiction to grant anticipatory bail only and exclusively in the High Court and divest the Court of Session of any such jurisdiction, and in that case, the question for consideration by the Special Bench may lose all relevance. But the Bill being still on the legislative anvil, we would have to resolve the question on the terms of Section 438, as it now stands. After hearing the learned Counsel for the parties and considering the matter with anxious advertence, we have come to the conclusion that both on principle as well as on authority, the question must be answered in the affirmative as proposed by Khastgir, J., thus agreeing further with the learned Judge that the earlier Division Bench decision in Amiya Kumar Sen (supra, 1979 Criminal Law Journal 288) was not correctly decided.