M.L. TAHALIYANI, J. :- Rule is made returnable forthwith and heard finally by consent of the parties. 2. The petitioners pray that this Court may declare that subsection (4) of Section 438 of the Code of Criminal Procedure, 1973 as applicable to the State of Maharashtra by virtue of Maharashtra Act No. XXIV of 1993 is ultravires the Constitution and is violative of Articles 14 and 21 of the Constitution of India. 3. Prayer of the petitioners emanated from their apprehension that following the order dated 23rd June, 20 II passed by Additional Sessions Judge, Buldhana directing the petitioners to remain present in the Court of learned Judge on 27th June, 2011, the petitioners might be arrested in the event of rejection of their application for grant of anticipatory bai1. 4. The petitioners had moved Additional Sessions Judge, Buldhana for grant of relief under Section 438 of the Code of Criminal Procedure vide Bail Application No.237 of 2011. The petitioners apprehended arrest in Crime No.32 of 2011 of Buldhana (Rural) Police Station for the offences punishable under Sections 143, 147.395 r/w S. 149, Section 506 r/w. S 149 of the Indian Penal Code and Section 135 r/w. Section 37(1)(a) of the Bombay Police Act. They had, therefore, moved the learned Additional Sessions judge for grant of relief in the nature of anticipatory bail. The impugned interim order came to be passed on 23rd June. 2011. The said impugned order runs as under : "The I.O. In Crime No.32/2011 of Buldana (Gramin) Police Station, shall not effect arrest of applicants without giving them prior notice of 72 hours. Applicants to remain present before the Court on 27th June, 2011. "5. It is obvious that the above stated order was passed by the learned Additional Sessions Judge on the prayer made by the learned Additional Public Prosecutor under subsection (4) of Section 438 of the Code of Criminal Procedure. Subsection (4) of Section 438 of the Code of Criminal Procedure, as applicable to the State of Maharashtra, runs as under : "The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice." 6. It is submitted on behalf of the petitioners that there is no logic behind introduction of this subsection which makes the presence of the applicant obligatory in case such a direction is issued by the Court on the application made by the prosecutor. It is contended that subsection (4) frustrates the every purpose of introduction of Section 438 in the Code of Criminal Procedure. It was pointed out that the jurisdiction of the High Court and Sessions Court under Section 438 of the Code of Criminal Procedure is concurrent and therefore, the applicant whose application under Section 438 is rejected by the Sessions Court, has a right to move the High Court. 7. Mr. Joshi appearing on behalf of the petitioners has submitted that once the applicant who has moved the Sessions Court for grant of relief under Section 438 of the Code of Criminal Procedure appears before the Sessions Court and in case his application is rejected at the time of final hearing, it follows that he would be arrested by the Investigating Officer. This, according to Mr. Joshi, takes away the valuable right of the citizen to move the High Court for grant of relief which has been denied by the Sessions Court. Mr. Joshi contends that provisions of subsection (4) of Section 438 of the Code of Criminal Procedure are, therefore, violative of Articles 14 and 21 of the Constitution of India and prays that this Court may declare the said provision to be ultravires the Constitution. 8. We have heard Mr. Joshi, learned counsel for the petitioners and learned Public Prosecutor Mr. Sambre, at length. 9. In the first place, it is to be noted that the presence is not insisted unless application is made by the prosecutor. Secondly, the applicant is required to attend the Court if the Court considers his presence necessary in the interest of justice. The provision does not make it obligatory on the part of the applicant to appear in the Court as soon as interim relief is granted, nor is it obligatory for him to remain present at the time of first hearing. 10. It was pointed out to Mr. Joshi that the Sessions Court refusing to grant anticipatory bail may direct that interim order granted to the applicant should continue for a limited period till the applicant approaches the High Court. 10. It was pointed out to Mr. Joshi that the Sessions Court refusing to grant anticipatory bail may direct that interim order granted to the applicant should continue for a limited period till the applicant approaches the High Court. It was submitted that such a procedure is not necessarily followed by all the Courts and therefore, always there is apprehension in mind of applicant that he might be arrested. It is in this background that it was submitted before us that the procedure envisaged under subsection (4) of Section 438 of the Code of Criminal Procedure is not just and fair. 11. We are not impressed by the arguments of the learned counsel for the petitioners. In this regard, it is necessary t9 note here that powers to grant bail in anticipation of arrest are given to Sessions Court and the High Court. The Hon'ble Supreme Court in the matter of Gurbaksh Singh Sibbia Vs. State of Punjab, reported at (1980) 2 SCC 565 : [2010 ALL SCR (O.C.C.) 316] has, in paragraph 33, observed as under : "33. We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that, after all, 'the legislature in its wisdom' has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected." 12. A t the same time we also find it necessary to note here that the presence of person apprehending arrest and who has applied for anticipatory bail is not necessary in all the cases at final hearing of anticipatory bail applications. If they err, they are liable to be corrected." 12. A t the same time we also find it necessary to note here that the presence of person apprehending arrest and who has applied for anticipatory bail is not necessary in all the cases at final hearing of anticipatory bail applications. It is necessary only in such cases where an application has been filed by the Public Prosecutor for the presence of the petitioner and the Court considers the presence of such person necessary in the interest of justice. Such a conclusion can be reached by the Court after hearing both the parties. The petitioner would, thus, have an opportunity to present his side of the case while opposing the application filed by the Public Prosecutor. Where no such application has been filed by the Public Prosecutor, it may not be necessary for the applicant/petitioner to be present at the final hearing of his application for anticipatory bail. 13. Apart from what the Hon'ble Supreme Court has observed in Gurbaksh Singh and what we have stated herein above regarding discretion of the Court while deciding the application submitted on behalf of the prosecution for presence of the applicant at the time of final hearing, it is also necessary to be noted here that Section 438 of the Code of Criminal Procedure is not an integral part of Article 21. As such, the anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after coming into force of the Constitution. The observations are made by the Hon'ble Supreme Court in this regard in the judgment in State of M.P. and another Vs. Ram Kishna Balothia and another, reported at 1995 CRT. L.J. 2076(1). Paragraph 7 of the said judgment can be usefully reproduced as under : "7. We have next to examine whether Section 18 of the said Act violates, in any manner, Article 21 of the Constitution which protects the life and personal liberty of every person in this country. Article 21 enshrines the right to live with human dignity, a precious right to which every human being is entitled; those who have been, for centuries, denied this right, more so. We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. Article 21 enshrines the right to live with human dignity, a precious right to which every human being is entitled; those who have been, for centuries, denied this right, more so. We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail, It observed: "we agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised." In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Sessions or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non application to a certain special category of offences cannot be considered as violative of Article 21." 14. It is, thus, clear that right to anticipatory bail is a right conferred by the statute. It is held by the Hon’ble Supreme Court that non application of provisions of Section 438 of the Code of Criminal Procedure to certain special category of offences cannot be considered as violative of Article 21. It, therefore, follows that if the statutory right conferred by Section 438 of the Code of Criminal Procedure is regulated by certain reasonable restrictions, it would not violate Article 21 of the Constitution. We, therefore, do not find any merit in prayer clause (i) of the petition. Prayer clauses (ii), (iii) and (iv) do not survive as the petitioner has been, granted requisite re1iefin the proceedings pending before the concerned Additional Sessions Judge. In the result the petition is dismissed. Rule discharged. Petition dismissed.