Judgment :- Jayanta Kumar Biswas, J. The petitioner accused of offences under ss.376/417 IPC and in custody from January 9,2012 is seeking bail under s.439 CrPC. Since the court below has not refused the petitioner bail, the question of maintainability of the s.439 application has arisen. Advocate for the petitioner has submitted that since s.439 has conferred a special power on the High Court to grant an accused in custody bail, the petitioner in custody is entitled to approach this court even though the court below has not refused him bail. Advocate was given opportunity to consider the decision of the Supreme Court in Gurcharan Singh & Ors. v. State (Delhi Administration), AIR 1978 SC 179 where, while stating the bail principles, their Lordships said that one seeking bail under s.439 would approach the High Court or the Court of Session only after refusal of one’s bail prayer by the Magistrate. We are, therefore, unable to accept the argument that though the court below has not refused him bail, the petitioner is entitled to approach this court under s.439. Advocate has referred to a Division Bench decision of this court in Rani Bala Dey v. State of West Bengal & Ors.,2004 CCrLR(Cal) 705. He has referred to para.28 of the report. We do not find any reason to say that the decision says anything contrary to the principle stated by the Supreme Court in Gurcharan. It has been submitted that the petitioner’s bail application filed before the court below was pending at the date the petitioner filed this CRM; and that since there was no judge to take up the pending bail application, the petitioner decided to seek bail from this court. The situation could not and did not entitle the petitioner to apply for bail in this court. He ought to have moved the judge in charge. For these reasons, we dismiss the CRM. Nothing herein shall prevent the petitioner from moving the court below.