C.M. Lodha, J.
1. This is an application for grant of bail under Section 438, Cr. P.C. on behalf of the accused-petitioner Hajialisher against whom the Judicial Magistrate, First Class, Barmer is stated to have taken cognizance of a case under Section 302, I.P.C. with certain other offences. The petitioner has come straight to this Court under Section 438, Cr. P.C. without approaching the Court of Session.
2. Two preliminary objections have been raised by the learned Public Prosecutor to the entertainability of this application. It is urged, in the first instance, that the Sessions Court should have been approached first. The other objection is that since a warrant of arrest has been issued against the petitioner, the application for hail cannot lie under Section 438, Cr. P.C. but it must be dealt with under Section 439, Cr. P.C. and that the accused must surrender before his prayer for grant of bail is considered
3. Since the preliminary objections raised by the learned Public Prosecutor are of some importance and are bound to affect the right of the accused in general who approach this Court for bail, I have heart! Mr. M. M. Singhvi as well as Mr. Bhimraj Purohit as intervenors.
4. Mr. Bhimraj has strongly contended that the Legislature has given an option to an accused person to approach the High Court or the Court of Session for grant of bail both under Sections 438 and 439, Cr. P.C., 1973 and once the application has been accepted by the office of the High Court, it would not be proper for the Court to direct the accused person to approach the Court of Session in the first instance. I have given my thoughtful consideration to this contention and regret that I cannot accept it. It is true that the High Court and the Court of Session have got concurrent jurisdiction to entertain an application for grant of bail both under Sections 438 and 439 Cr. P.C. But, for that reason, the matter cannot be left completely to the option of the accused person. For the decision of this question no distinction can be made between an application under Sections 438 and one under 439, Cr. P.C. and if it is accepted that under Section 438, Cr. P.C. An accused person has a right to have his prayer for bail considered in the first instance by the High Court, the same argument can very well be pressed into service with respect to applications under Section 439. Although the High Court has concurrent jurisdiction with the Sessions Court to grant hail under either of the aforesaid two sections, it is, according to me, desirable that the ordinary practice should be that the lower court should be first moved in the matter, though in exceptional cases or special circumstances, the High Court may entertain and decide an application for bail either under Section 458 or Section 438, Cr. P. C, This is specially important because any expression of opinion by the superior court is likely to prejudice, if not frequently, in cases few and far between, the trial in the lower court. In my opinion, it is only in exceptional circumstances that an application for trial should be made direct to the High Court and in the absence of special circumstances the application should not be entertained by the High Court. The argument that the office should not accept the application or once the office has accepted the application, the Court is bound to decide that application is to be stated only to be rejected. The function of the Court can, by no stretch of imagination, be delegated to the office. As already observed above, on proof of special circumstances the High Court would certainly entertain an application under Section 438 and decide it on merits. But, for that reason, an accused person cannot claim as a matter of right to get such an application decided in the first instance by the High Court. In this view of the matter, there is no escape from the conclusion that the petitioner should have approached the Sessions Court in the first instance. No exceptional circumstances have been placed before me to entertain and . decide the present application here without the Sessions Court having been approached in the first instance.
5. It was no doubt hinted by the learned Counsel for the petitioner that the Sessions Court may even though the application is under Section 438, Cr. P.C. insist upon surrendering the accused be-fore giving consideration to the application. I do not see any ground for such apprehension. Law is crystal clear on the point that under Section 438, Cr. P.C. whenever any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply for anticipatory bail. If the surrender of the accused were insisted upon, then the very purpose of Section 438, Cr. P.C. for grant of anticipatory bail would be defeated. It need hardly be pointed out that Section 438 was provided to meet those cases where for political or other extra-neaus considerations, false and unfounded criminal charges may be brought against innocent persons ,and they may be haratsed and humiliated. Keeping in view the intention of the Legislature implicit in the section, I am of the view that if the application properly falls under Section 438, Cr. P.C., the surrender of the accused cannot be insisted upon. However, whether an application properly falls under Section 438, Cr. P.C. or not is a matter to be decided in each case and no hard and fast rule can be laid down in this connection.
6. It has been debated at the Bar that issue of a warrant of arrest or recording of an order for arrest of a person would not take the case out of the purview of Section 438, Cr. P.C. Since I have come to the conclusion in the present case that the accused petitioner must first approach the Court of Session, I do not think it proper to give a finding whether the present application would fall under Section 438 or 439 and leave it to the Sessions Judge to decide the matter according to law.
7. With these observations the application for bail is rejected on the preliminary point and the accused petitioner is directed, if so advised, to approach the Court of Session in the first instance for grant of bail.