JUDGMENT Khastgir, J. : In this application the petitioners have prayed for grant of anticipatory bail by the High Court in the event of their arrest in connection with the Contai Police Station Case No. 11 dated 16th of October, 1987. 2. The petitioners contended that being the supporters of a particular political party have been implicated s accused persons due to malice and political rivalry. The petitioner no. 2 is a minor aged 14 years and a student of Class VII of Sarpai Model Institution. He is a meritories and brilliant student of the institution and he secured first position in the annual examination. He is not involved with any political party but as his father is a supporter of the said party, it was his case that out of personal grudge against his father the petitioner no. 2's name has been falsely implicated. The other petitioners are reputed persons of that area and supporters of a well known political party. The first information report has been lodged by the members of the ruling party. The petitioners filed applications for anticipatory bail before the learned Sessions Judge but the same was rejected on 27th November, 1987. 3. The main point for consideration in this application was as to whether having an application before the Sessions' Court under s. 438 of the Criminal Procedure Code the petitioners were entitled to move this application before this High Court under s. 438 of the Criminal Procedure Code. Section 438 of the Criminal Procedure Code provides as follows:– "438. Direction for grant of bail to person apprehending arrest–– (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 direction under sub-section (1) it may include such conditions in such directions in the light of the facts of the Particular case, as it may think fit, including–– (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-s. (3) of s. 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-s. (1). 3. Section 438 sub-s. (1) provides that 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 Sessions, for a direction that in the event of such arrest he shall be released on bail. From the language used in the section it is amply clear that a person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence may apply to the High Court or the Court of Sessions. As a consequence both the High Court as also the Court of Sessions have concurrent jurisdictions. It is open to the person concerned to exercise his option before the High Court or the Court of Sessions. 4. The provision of the s. 438 of the Criminal Procedure Code gives concurrent power of granting anticipatory bail both to High Court and the Court of Sessions. It is open to the person concerned to exercise his option before the High Court or the Court of Sessions. 4. The provision of the s. 438 of the Criminal Procedure Code gives concurrent power of granting anticipatory bail both to High Court and the Court of Sessions. As the language of the section itself is clear and not ambiguous there could be no dispute that both the High Court as also the Court of Sessions have concurrent jurisdiction to entertain such applications for anticipatory bail. In the instant application it has become necessary to determine as to whether the High Court can exercise its original authority to entertain such an application after a similar application for anticipatory bail having been rejected by the Court of Sessions. The section itself does put any restriction to such exercise of powers by the High Court inasmuch as there is no use of the expression "either or" nor any restriction have been imposed in the section itself to the effect that if any person has either moved the High Court or the Court of Sessions no further applications by the same person shall be entertained either by the High Court or by the Court of Sessions. 5. Under s. 439 of the Criminal Procedure Code special powers have been given to both the High Court or the Court of Sessions regarding bail in the manner following:– "439. Special Powers of High Court or Court of Session regarding bail–– (1) A High Court or Court of Session may direct– (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-s. (3) of s. 437, may impose any condition which it considers necessary for the purpose mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified; Provided that the High Court or Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is for reasons to be recorded in writing of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody" 6. The expression used in this section is, a High Court or a Court of Session may direct for release of a person inasmuch as similar expression has been used in s. 439 and when applications are entertainable both by the High Court as also by the Court of Sessions and application even being rejected under s. 439 by the Court of Sessions are being entertained by the High Court for grant of bail there does not seem to be any reason as to why having lost before the Court of Sessions the person concerned cannot move an application before the High Court for grant of such relief under s. 438 also where the legislature thought it fit not to introduce any restriction in the exercise of such power either by the High Court or by Court of Sessions when a litigant have moved earlier any application before either of the two courts. It is true in the s. 438 the heading is "direction for grant of bail to person apprehending arrest and the heading under s. 439 is special powers of High Court or Court of Sessions regarding bail. Under s. 438 a person may apply and under s. 439 the High Court or the Court of Sessions may direct for such bail but apart from exercising the Court's power and jurisdiction suo moto even under s. 439 on an application made by a person accused of an offence and in custody such orders are passed under s. 439. The difference of circumstances is under s. 439 an application is made by a person who is under apprehension of being arrested on an accusation of having committed a non-bailable offence whereas an application under s. 439 is made by a person accused of an offence is in custody. When no restriction has been imposed in the section itself by use of the expression "either to the High Court or to the Court of Sessions or vice versa" it would not be open to this Court to introduce or add any word to the section which the legislature in its wisdom thought fit not to introduce. When no restriction has been imposed in the section itself by use of the expression "either to the High Court or to the Court of Sessions or vice versa" it would not be open to this Court to introduce or add any word to the section which the legislature in its wisdom thought fit not to introduce. Had it been the intention of the legislature to introduce such restriction in the exercise of such jurisdiction of the Court it would then have been open to the legislature to introduce such restrictive clause and/or words in the section itself as it has been done in s. 397 sub-s. (3) when calling for records to exercise powers of revision either by the High Court or by the Court of Sessions under sub-clause (3) a restriction have been imposed in the manner following:– "397. Sub clause (3)–– If an application under this section has been made by any person either to the High Court or to the Sessions' Judge, no further application by the same person shall be entertained by the either of them". 7. Similarly under s. 399 sub-s. (3) while dealing with Sessions Judge's power of revision under sub-s. (3) it has been provided that where any application for revision is made by or on behalf of any person before the Sessions Judge the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the Court or any other Court. We do not find any such restriction imposed by s. 438 of the Criminal Procedure Code. 8. Being aggrieved by an order passed by the learned Sessions' Judge under s. 438 of the Cr. P. C. the aggrieved party may move the revisional Jurisdiction under s. 397 and the High Court may exercise powers of revision under s. 401 of the Criminal Procedure Code but such exercise of power would be confined to satisfy itself as to the correctness, legality and propriety of the order passed by the Court of Sessions. That exercise of power and/or application calling for records to exercise such powers of revision is subject to the law of limitation inasmuch as within a period of 90 days from the date of the impugned order such application have to be made before the High Court. That exercise of power and/or application calling for records to exercise such powers of revision is subject to the law of limitation inasmuch as within a period of 90 days from the date of the impugned order such application have to be made before the High Court. The party aggrieved can only rely upon and confine to the documents and/or the materials which were placed before the Court of Sessions. Whereas while moving an application under s. 438 before the High Court afresh the aggrieved party is free and at liberty to bring before the notice of the High Court not only the change of circumstances but also fresh materials available for consideration before the High Court while passing an order for anticipatory bail or not. 9. Article 21 of the Constitution of India guarantees protection of life and personal liberty inasmuch as no person shall be deprived of his life or personal liberty except according to the procedures established by law. Having failed to obtain an order for anticipatory bail before the Court of Sessions the aggrieved party cannot be deprived of the opportunity to secure his personal liberty by bringing forth the fresh materials and/or the changed circumstances before the High Court by moving another application for grant of anticipatory bail. If so prevented the accused will suffer grave injustice and prejudice. When the legislature has thought fit not to impose any restriction on the simultaneous use of power both by the High Court as also by the Court of Sessions, this Court should not give such narrow construction and/or interpretation to the section by introducing words which the legislature in its wisdom thought fit not to introduce. The procedure led down in s. 438 has a clear nexus with the personal liberty of an individual which is protected by Article 21 of the Constitution. Hence the procedure under s. 438 must be construed in a just and fair manner so as to be consistent with Article 21 of the Constitution. 10. In the case reported in AIR 1980 SCP 1632 Gurbaksh Singh Sibbia v. Sarbajit Singh & Anr., it has been discussed as to the wide discretion given to Court of Sessions and High Court in granting anticipatory bail because these higher courts are manned (?) by experienced persons. Those orders are not final and also open to appellate or revisional scrutiny. Those orders are not final and also open to appellate or revisional scrutiny. The learned Judges of the Supreme Court were reluctant to foreclose categories of cases to which anticipatory bail may be allowed inasmuch as life throws up unforeseen possibilities and offers new challenges. Hence, judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet those challenges. In paragraph 7 the learned Judges discussed the provisions of s. 438 and the nature of anticipatory bail and the expression which was used by the Law Commission in its 41st report which is a convenient mode of applying for bail in anticipation of arrest. In paragraph 26 the learned Judges of the Supreme Court found great substance in the submission that "since the denial of bail amount to deprivation of personal liberty the court should lean against the imposition of unnecessary restriction on the scope of s. 438 specially when no such restriction have been imposed by the legislature in terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual who is entitled to the benefit of the presumption of innocence since he is not on the date of his application for anticipatory bail convicted to the offence in respect of which he seeks bail. The over generous infusion of constraints and conditions which are not to be found under s. 438 can make its provisions constitutionally vulnerable. Since the right of personal freedom cannot be made depend on compliance with unreasonable restrictions, the beneficent provision contained in s. 438 must be saved and not jettisoned." 11. Hence following the said observation as quoted above it is not open before this Court to re-write s. 438 by introducing some restrictions which the legislature did not think it necessary to do. However, the only restriction in exercise of powers under s. 438 is the use of judicial discretion not to pass any order according to the whims, caprice or fancy. Since, the passing of the order by the Court before which an application had already been made for anticipatory bail there may be unforeseen possibilities offering new challenges which require judicial examination and use of its discretion. 12. Since, the passing of the order by the Court before which an application had already been made for anticipatory bail there may be unforeseen possibilities offering new challenges which require judicial examination and use of its discretion. 12. In the full bench decision of the H. P. reported in AIR 1980 H.P. p. 36 the learned Judges were of the view that a person is entitled to make an application for anticipatory bail in the High Court even though a similar application by him has been rejected by the Court of Sessions. While doing so the aggrieved person need not invoke the revisional jurisdiction of the High Court but makes an application under s. 438 itself. 13. The legislature by introducing s. 438 in 1973 to the Criminal Procedure Code had given the Higher Courts a wide discretion and power in granting anticipatory bail. 14. Although this court is of the view that in view of what is discussed above that a person is entitled to apply before the High Court under s. 438 for grant of anticipatory bail in spite of his earlier application having been made before the Court of Sessions but in view of the judgment reported in 1979 Cr. L.J. at 288 (: 1978 CHN 723), delivered by a division bench of this Court by R. Bhattacharyya and Monoj Kumar Mukherjee, JJ the learned Judges were of the view that under s. 438 the choice between the High Court and the Court of Sessions is restricted inasmuch as a person applying before the Sessions Court for such anticipatory bail and the learned Sessions Court having rejected the said application a fresh application could not be made before the High Court. The learned Judges in that case relying upon the grammatical construction by referring to F. J. Rowe and W. T. Webb in the Hints (On the study of English) and also J. C. Nesfield's Grammar are according to the learned Judges a clear and unambiguous meaning to s. 438 and thereby holding that a person may apply for anticipatory bail to either of the Courts that is High Court or Court of Sessions. Such person will have a choice of one of the alternatives that is either to the High Court or to the Court of Sessions. Such person will have a choice of one of the alternatives that is either to the High Court or to the Court of Sessions. The learned Judges were of the view that the word "or" has been used in the alternative or in exclusive sense. But while construing s. 439 the learned Judges were of the view that the expression 'or' in that section has been used in non-alternative sense equivalent to 'and'. Although holding that the language used clearly says that it has been used in non-alternative sense but no reasons and/or grounds have been indicated by the learned Judges in the said judgment as to why the learned Judges were of the view that the expression 'or' in s. 438 was in the alternative but the use of the same expression 'or' in s. 439 has been used in non-alternative sense equivalent to 'And'. This Court is unable with due respect to follow the finding of the said learned Judges in coming to the conclusion "although coordinate powers have been given to both the forums has been barred." The restriction put on the choice of the party on the ground to avoid delay or to avoid abuse of the process of the Court and also was age of court's time could not be a ground to put restriction and/or introduce words to a section when the legislature in its legislative wisdom had though fit not to do so. 15. In the case reported in 85 Cr. L.J. at page 214 K. C. Iyya v. State of Karnataka it was held that since both the courts, the Court of Sessions and the High Court have concurrent powers in the matter of grant of anticipatory bail under s. 438 of the Criminal Procedure Code a person seeking anticipatory bail under s. 438 should approach the Court of Sessions in the first instance s this would serve the ends of justice, public interest and also administration of justice. But there may be cases with special reasons or involving special circumstances necessitating the person concerned to approach High Court at the first instance. In paragraph 18 in the said case two decisions of Punjab & Haryana High Court had been referred, wherein the parties were directed to approach the Court of Sessions first. But there may be cases with special reasons or involving special circumstances necessitating the person concerned to approach High Court at the first instance. In paragraph 18 in the said case two decisions of Punjab & Haryana High Court had been referred, wherein the parties were directed to approach the Court of Sessions first. Under the circumstances those decisions indicate that inasmuch as preference is given to approach the Court of Sessions first that implies that the High Court could be approached subsequently. 16. In the case reported in 1972 Cr. L.J. at page 1607 Sher Singh v. Singha Singh Chief Justice R. S. Pathak (as he then was) was of the view that whenever concurrent jurisdiction is vested by a Statute simultaneously in two courts one superior to the other it was appropriate that party should apply to the inferior court first then the Superior Court has the advantage of opinion of the inferior Court when the occasion arises for the exercise by it of its jurisdiction in the matter. Number of reasons have been enumerated which have generally prevailed with the High Court in holding that where it is a case of concurrent jurisdiction a party should ordinarily apply to the inferior Court in the first instance but that rule is not an absolute one. It is to be applied ex debito justitiae. There may be a case where interest of justice may be defeated if a party is required to apply to the inferior Court first before approaching the High Court. The rule must then give way to the interest of justice. 17. In the case reported in 1976 Cr. L.J. at page 1142 Onkar Nath Agarwal & Ors. v. State where a Full Bench of the Allahabad High Court held :–– "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 Sessions 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. 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 Sessions 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 Sessions 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 his redress. 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 a view to indicate the particular grooves in which the discretion should run on the ground that if the Act or Rules do not fetter the discretion of the Judge why should the Courts do so. It may, however, be mentioned that inasmuch as s. 438 of the Code of Criminal Procedure, 1973 gives a discretionary power to grant bail, this discretion is to be exercised according to the facts and circumstances of each case. There may be cases in which it may be considered by the High Court to be proper to entertain an application without the applicant having moved the Court of Sessions initially. Similarly there may be cases in which the Court may feel justified in asking the applicant to move the Sessions Court to refer the matter to that Court. In any case all depends upon the discretion of the Judge hearing the case." 18. Similarly there may be cases in which the Court may feel justified in asking the applicant to move the Sessions Court to refer the matter to that Court. In any case all depends upon the discretion of the Judge hearing the case." 18. The provision according to this judgment of s. 438 read as a whole does not prima facie create any bar that one must apply to the Court of Sessions first before coming to the High Court to seek his redress, nor does it lay down any condition on the existence of which the bar can be granted. There may be cases in which it may be considered by the High Court proper to entertain an application the applicant having moved the Court of Sessions initially. Similarly, there may be cases in which the Court may feel justified in asking the applicant to move the Sessions Court or to refer the matter to that Court. 19. Under those circumstances, this Court, although is of the view that two applications are permissible by the person concerned both before the Court of Sessions as also before the High Court but because of this Division Bench decision this Court has no alternative but refer it to the larger Bench for consideration. 20. The petitioner no. 2 is stated to be a minor of 14 years old. He is a student of Class VIII. Under those circumstances, this Court allows his prayer for anticipatory bail as a special case under s. 482 of the Code of Criminal Procedure to secure ends of justice. A. C. Sengupta, J.: 21. As the matter has got to be referred to a larger Bench in view of the decision of the Division Bench of this Court reported in 1979 Cr. L.J. 288 referred to by my learned Senior and as I am unable to agree with the judgment of my learned Senior just now read in the Court, I may add a few words here. 22. At the outset it may be noted that in view of the judgment of the said Division Bench of this Court we cannot pass any order regarding anticipatory bail in such an application under s. 438 of the Code of Criminal Procedure and none of the petitioners can be granted any relief before this matter is decided by a larger Bench. So the petitioner, who has been ordered to be released on anticipatory bail by my learned Senior, is not entitled to such relief unless the matter is otherwise decided by a larger Bench. 23. Now in view of the said decision, we cannot go into the merits of the case. The learned Sessions Judge appears to have decided the case on merits after considering the C. D. and rejected the prayer of the four petitioners. But in view of the position already referred to, we cannot go into the question of merits unless the matter is otherwise decided by a larger Bench. So the question of granting anticipatory bail to any of the petitioners at this stage before the matter is decided by a larger Bench cannot arise. 24. Now I can make a short discussion with regard to the meaning of s. 438(1) of the Code of Criminal Procedure. I need not quote it again because it has already been quoted by my learned Senior. The words and phrases used in a provision of law should usually be interpreted in their literal and grammatical sense and unless it appears unjustified from other provisions of the statute, it should not be otherwise interpreted. The literal approach is also safe because there is wider scope for divergence in interpretation in respect of purposive approach. If the literal approach fails to convey the true meaning in proper context, the purposive approach should nevertheless be restored to. 25. In English language, word "or" is usually accepted as disjunctive. We have to consider whether there is any unusual circumstance to show that this usual meaning of the word "or" should not be accepted in this case. Article 21 of the Constitution has been referred to by my learned Senior. Article 21 only means that nobody should be deprived of his liberty without due process of law. In this case we are not considering whether anybody's liberty has been taken away without due process of law. Here we are engaged to find out what, according to s. 438 Cr. P. C., due process of law should interpreted to mean in the case of a person applying for anticipatory bail. So any discussion on Article 21 is redundant in this case. We should better confine ourselves to find out the actual meaning of the provision of s. 438 (1) of the Code. 26. P. C., due process of law should interpreted to mean in the case of a person applying for anticipatory bail. So any discussion on Article 21 is redundant in this case. We should better confine ourselves to find out the actual meaning of the provision of s. 438 (1) of the Code. 26. A comparison has been made with regard to the provision of s. 439 and s. 397 of the Code in order to ascertain the true meaning of the word "or". In my opinion such a comparison cannot be usefully made because the subject of these different sections appears to be different. In s. 438 the person is the subject,………. "he may apply to the High Court or the Court of Session for a direction………". But in s. 439 and s. 397 the Court is the subject….. "A High Court or Court of Session may direct……" (s. 439 Cr. P. C.) and "The High Court or any Sessions Judge may call for……" (s. 397 Cr. P. C.). As the subjects are different, there cannot be any useful comparison between s. 438 on the one hand and s. 439 and 397 on the other for the purpose of ascertaining if the word "or" in s. 438 (1) has been used in the sense it is used in 439 and 397. In all these provisions, it is not disputed that both categories of courts have been given powers. In s. 397 some curtailment of the powers of the Court only in the matter of applications by individuals has been made in sub-clause (3) which reads as follows–– "If an application has under this section been made by any person either to the High Court or to the Sessions Judge no further application by the same person shall be entertained by either of them." On this ground, it cannot be argued that because no such provision has been introduced in s. 438, it can be construed to mean that a person has been given liberty to apply to the other court on his failure to get any relief in the one. Such an argument would not be logical. 27. The contrary argument would be logical. This curtailment shows that both the Court have been given the powers in 397; otherwise curtailment would not have been necessary. Such an argument would not be logical. 27. The contrary argument would be logical. This curtailment shows that both the Court have been given the powers in 397; otherwise curtailment would not have been necessary. This itself shows that the word "or" in s. 397 has been used "to mean 'and'" as has been rightly held in the decision of our Division Bench. No such curtailment has been put to s. 438 thereby showing that one Court is automatically divested of the power given to it as soon as the person concerned exercise his choice for the other. This also shows that the word "or" is used in the distinctive sense as has been rightly held in our Division Bench case No. confusion can arise if it is remembered that in s. 438, the person is the subject––"he may apply to……." and in others the Courts. In s. 438 the person concerned has been given a right to exercise and option. 28. Regarding s. 439, I may add that the condition of the person applying under s. 439 in different from that of the person applying under s. 438 : In the former (s. 439) fresh cause of action arises every moment he is kept in jail, in the latter (438) it does not, because the "accusation” therein remains the same. This being the position, the other view would be incongruous to the system of hierarchy followed in the Procedure Code, e.g. if an application for anticipatory bail is rejected by the High Court, the person concerned may go and apply to the Sessions Court on the ground of the same accusation and get an order for anticipatory bail. This cannot perhaps be in ended by the legislature which has created a hierarchy of courts by the Code of Criminal Procedure. In the case of applications under s. 439, as already stated, the causes of action being different, every application becomes a new application. Leaving aside the question of intention, the ordinary meaning of s. 498 does not show that a person failing in one court can apply to the other. The plain meaning of the section shows that the person suffering the "accusation" has been given a choice. He may apply to High Court or to the Court of Sessions. Leaving aside the question of intention, the ordinary meaning of s. 498 does not show that a person failing in one court can apply to the other. The plain meaning of the section shows that the person suffering the "accusation" has been given a choice. He may apply to High Court or to the Court of Sessions. The reference to Gurbaksh Singh's case made by my learned Senior does not appear to be necessary for the purpose of deciding the point at issue. In that case the court has discussed the question as to whether the condition or circumstance for grant of anticipatory bail should be circumscribed or not. The point we are here concerned with has not been referred to in any manner in that case. So, that case does not appear to be of any relevance for the purpose of finding out the meaning of the provision of s. 438 of the Code. 29. Without introducing any word in s. 438(1) the provision can be interpreted. It comprises a grammatically complete sentence capable of being correctly interpreted. The word "either" is not necessary to be introduced to find out the true meaning of the section. The question that if the person concerned is not allowed to seek his remedy in the other court after he failed to get anticipatory bail in the one court, he will be driven to seek his remedy under s. 397 and thereby it would be putting unnecessary restriction on the person's right under s. 438(1) cannot be raised for determining the meaning of s. 438(1). It is not material for the purpose of ascertaining the meaning of s. 438. Only because if the person is not given the right to move one court after he fails in another court he is to undergo the hardship of taking resort to the provision of s. 397, it cannot be inferred that the legislator must have intended that the person would have the right to move the other court after he fails in the one. This I have already said may be incongruous to the hierarchy of the courts created by the Criminal Procedure Code and to the usual meaning of the word "or". 30. I have already stated that in English language the word "or" is usually used in the disjunctive sense. This I have already said may be incongruous to the hierarchy of the courts created by the Criminal Procedure Code and to the usual meaning of the word "or". 30. I have already stated that in English language the word "or" is usually used in the disjunctive sense. After pursuing the provision of s. 438(1) I am unable to find that it has been used by the legislature in any other sense. In the circumstances of the matter involved, some of which I have discussed above, I find myself unable to agree with my learned Senior and respectfully subscribe to the view expressed by our Division Bench in the judgment already referred to. The judgment reported in AIR 1980 H P 36 cannot be accepted in view of our Division Bench judgment because it does not give any cogent reason for the decision. 31. As my learned Senior ha s now decided to release one of the petitioners, that is petitioner No. 2, in exercise of powers under s. 482 Cr. P. C. to secure the ends of justice in terms of that section I may add that when there is specific provision in the Code the provisions of s. 482 cannot be invoked as has been subsequently invoked. I am unable to agree with my learned Senior's order as the petition itself is not maintainable. 19.5.88–– Let this matter be placed before the learned Chief Justice for constitution of a larger Bench.