Concurrent jurisdiction for anticipatory bail under Section 438 leaves the accused free to choose either forum first.

Section 438 confers concurrent jurisdiction on the High Court and the Court of Session for anticipatory bail applications by a person apprehending arrest for a non-bailable offence. The provision is distinct from Section 439, which applies after arrest and custody. Because the statutory language gives an alternative forum and does not impose a mandatory hierarchy, an accused may choose either court. Any practice requiring first recourse to the Court of Session cannot override that statutory right.

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Issues: Whether the High Court and the Court of Session exercise concurrent jurisdiction under Section 438 of the Code of Criminal Procedure, 1973, and whether an accused seeking anticipatory bail must first approach the Court of Session.

Analysis: Section 438 permits an application either to the High Court or to the Court of Session by a person apprehending arrest for a non-bailable offence. The provision is distinct from Section 439, which operates after arrest and custody. The court relied on the settled principle that anticipatory bail protects personal liberty and that the statutory language does not impose any mandatory order of forum. The accused therefore retains the choice of forum, and any practice requiring first recourse to the Court of Session cannot override the statute.

Conclusion: The High Court and the Court of Session have concurrent jurisdiction under Section 438, and it is not obligatory for the accused to approach the Court of Session in the first instance.

Ratio Decidendi: Where a statute expressly confers power on two courts in the alternative without imposing a prioritised forum, the applicant may choose either forum and no procedural practice can curtail that statutory right.

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