1. These are applications filed under section 438 of the Code of Criminal Procedure, 1973 (the Code).
2. Under S. 438(1) the High Court and the Court of Session have concurrent jurisdiction to grant anticipatory bail. That section provides that a person apprehending arrest on an accusation of having committed a non-bail able offence 'may apply to the High Court or the Court of Session for a direction that in the event of his being arrested he shall be released on bail'. Since this Court and the Court of Session have got concurrent jurisdiction in the matter either of them could be moved by the person concerned.
3. The question is :
It is not desirable for this Court to impose certain limitation in the matter of entertaining such applications at the first instance
4. This Court can adopt such a course only if it serves the ends of justice and not otherwise.
5. Apart from S. 438 there are other provisions in the Code which have invested this Court and the Court of Session with concurrent jurisdiction. For example S. 439 of the Code is one such. It enables these courts to grant bail to a person in custody. Similarly S. 397 of the Code has invested both this Court and the Court of Session with concurrent revisional jurisdiction. However, under S. 397 if a person approaches either of these courts he cannot again agitate that matter by way of a revision in the other Court. But such is not the case in the case of applications under S. 438 or S. 439 of the Code. Even under the Code of Criminal Procedure, 1898 (old Code) this Court and the Court of Session had concurrent powers of revision under S. 435 and power to grant bail under S. 498 of that Code. Similar questions having arisen under those provisions of the old Code courts in India had occasion to deal with this matter. Several High Courts in the Country had followed uniformly, for a number of years, the practice of directing the parties to first approach the Court of Session and later, if need be, the High Court. Some High Courts also had taken a contrary view. Those decisions will be of considerable help to us in understanding the question posed above. In this connection may also be relevant to note that the new Code has enlarged the revisional powers of the Court of Session and, as already stated, has made that court, if approached at the first instance, a final one in the matter. The intention of the legislature is to invest that Court with more powers and responsibilities so that it may considerably share the burden of administering criminal justice in the country along with the High Court in the State.
6. In the matter of bail, either anticipatory or regular, the voice of the Court of Session is not final but is subject to revisional or appellate jurisdiction of this Court and the Supreme Court. Also in these matters of bail, either anticipatory or regular, the Court of Session is given as wide a discretion as this Court. In this connection the following observations of Chandrachud, C.J., in Gurbaksh Singh Sibbia v. The State of Punjab : 1980CriLJ1125 , may be noted :
'There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons; secondly, their orders are not final but are open to appellate or revisional scrutiny ...........'
7. Since both the courts - Court of Session and this Court - have concurrent powers in the matter, it appears desirable, for more than one reason, that Court should be approached first in the matter.
8. In this connection I would first like to refer to a decision of R. S. Pathak, C.J., (as he then was) of the Himachal Pradesh High Court in Sher Singh v. Singha Singh, 1972 Cri LJ 1607. That was a case in which the aggrieved party had sought for cancellation of bail granted by the Magistrate. Instead of approaching the Sessions Judge the parties had approached the High Court directly. Taking note of the fact that the High Court and the Court of Session had concurrent powers in the matter the learned Judge felt that it was desirable that the parties, in line with the practice prevailing should have first approached the Sessions Judge. I may usefully extract the following observations of the learned Judge :
'It seems to me that in the circumstances, the petitioner should apply to the learned. Sessions Judge in the first instance. That course will be in accordance with the law laid down by this Court in Gulam Ali v. The State, 1972 Him LR 8 : (1972 Cri LJ 551). Learned counsel for the petitioner has drawn my attention to S. Narayanan v. Kannamma Bhargavi : AIR1969Ker126 where a Full Bench of the Kerala High Court has observed that there is no legal bar to a party approaching the High Court without first moving the Sessions Judge or the District Magistrate Reference was made to the practice prevailing in that High Court. There is no doubt that a party is entitled to apply to the High Court even as he is entitled to do so before the learned Sessions Judge. But whenever concurrent jurisdiction is vested by the statute simultaneously in two courts, one superior to the other. I consider it appropriate that the party should apply to the inferior court first. There are a number of reasons persuading me to that conclusion. Firstly, if a party is required to go to the inferior court in the first instance the superior Court has the advantage of the opinion of the inferior Court when the occasion arises for the exercise by it of its jurisdiction in the matter. Secondly, the inferior court is generally situated in the same or very near the place where the authority is situate from whose order the revision application is made, and it is more convenient and saves time for the record to be sent from that authority to the inferior court when the revisional application is filed and upon disposal of the revision application for record to be returned to the authority for disposal of the case. Thirdly, it provides against the superior court being flooded with cases which can be more appropriately disposed of by the inferior court. These are reasons which have generally prevailed with the High Courts in holding that where it is a case of concurrent jurisdiction a party should ordinarily apply to the inferior court in the first instance. The rule is not an absolute rule. It is to be applied ex debito justitiae. There may be case where the interests 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 given way to the interests of justice.' (Para 6)
We may note the several reasons assigned by the learned Judge as to why it was desirable and also in the ends of justice that the Sessions Judge is first approached in the matter. There are number of authorities rendered by other High Courts prior to the decision in Sher Singh's case 1972 Cri LJ 1607 (Him Pra) holding the same view. As stated above there are also a few decisions to the contrary, and, of them I may refer to a decision of the Full Bench of Jammu and Kashmir High Court in Mir Gulam Ahmed v. Haji Abdul Rehman, 1973 Cri LJ 832. That was a case under S. 435 of the old Code. Reference therein is made to various authorities holding the view similar to the one expressed by R. S. Pathak, C.J., in Sher Singh's case, in Mir Gulam Ahmed's case the learned Judge, S. Murtaza Fazal Ali, C.J., (as he then was), speaking for the Bench, has observed that 'when no bar is placed by the legislature on the right of the High Court to entertain revision petitions direct the High Court should not insist on the practice that the litigant should approach the lower courts first which though convenient for the Courts is extremely onerous and burdensome to the litigants'. The learned Judge refers to the contrary view taken by Sulaiman, C.J. in Shailabala Devi v. Emperor : AIR1933All678 and also learned Judges of several High Courts including Subba Rao, C.J., (as he then was) of the Andhra Pradesh High Court in AIR 1956 Andhra 97 : (1956 Cri LJ 571 (2)). But one consideration that very much weighed with the learned Judge in Mir Ghulam Ahmed's case 1973 Cri LJ 832 (J&K;) (FB) not to agree with those views but to give freedom of choice to the litigant to approach the High Court directly was that the revisional powers of the Sessions Judge under Section 435 of the old Code was very much limited unlike that of the High Court. In that case the challenge was to the order of a Magistrate stopping further proceedings on the ground that a civil dispute involving the very matter was pending. The Sessions Judge, in revision, by himself had no powers to grant the relief but had to make a reference to the High Court. Adverting to that fact, para-11, the learned Judge has observed as follows :
'It is manifest that if a litigant is forced to go to the Sessions Judge for considering matters in which the Sessions Judge cannot pass effective orders but only make a reference to this Court, then he will have to undergo two hearings before the matter can come up to the High Court. In these days when the needs of the nation have expanded beyond proportion, it will be a relevant factor to consider whether a litigant should be burdened with an additional cost of litigation when our duty is to make justice cheap and expeditious. The learned C.J. further advances the argument that as the subordinate courts are within the easy reach of the parties, it will involve less expenditure than in the High Court. This argument appears to us to be based on a misconception of the scope and ambit of S. 435 Criminal P.C. It is obvious that excepting in cases where the trial court has passed an order of discharge or has dismissed complaint under Section 203, the lower revisional courts namely, the Sessions Judge, the District Magistrate, or the C.J.M., do not possess the same jurisdiction which the High Court has. The lower Courts cannot pass effective orders or grant adequate relief to the litigant in all other cases excepting those mentioned above. The result is that the litigant has to come to the High Court and bear the express of conducting cases there in any event, because the lower Court have only to refer the matter to the High Court for final orders.'
As already stated, under S. 435 of the old Code, the Sessions Judge and the District Magistrate could have adequately granted the relief to a revision petitioner only in cases involving the discharge of the accused or dismissal of the complaint. In other cases they had to make a reference to the High Court. While rejecting the views expressed by Subba Rao, C.J., and the other learned Judges this was the main reason that had weighed with the learned Judge.
9. Such is not the case here. These are bail matters. Effective relief can be granted by the Sessions Judge. They have the same powers as this Court has. Therefore in dealing with question referred to above Sher Singh's case (1972 Cri LJ 1607) (Him Pra) is nearer the point.
10. After the new Code came into force, taking advantage of Section 438, persons apprehending arrest from police of various Stations spread all over the State and involving non-bail able offences, many not even of a serious nature, have been directly approaching this Court. In all such cases the State Prosecutor, who has to be heard, will have to get his instructions from the local police, some of whom may be far away. That necessarily consumes lot of public time and energy. Apart from this, anticipatory bail is an urgent matter. If the party approaches the Sessions Judge of the District, can he not get this relief there and would it not be easy for the local Public prosecutor to get in touch with the police, if need be, so that he can assist the Sessions Court One of the relevant considerations that had weighed with the learned Judge (Pathak C.J.) was that 'such a practice would also ease the pressure of the High Court, as otherwise the High Court would be flooded with cases which can be more appropriately disposed of by the inferior court'. If that was so, a decade ago, in 1972, is it not very much so now when the dockets of every superior court are full to the brim and when people, who are aware of their rights are approaching courts in larger numbers.
11. The learned Counsel for the petitioners, while urging that their applications may be considered on merits by this Court itself, offered their views separately viewing this question from different angles.
12. The learned Counsel at the Bar submitted that it may not be desirable to shut the doors of this Court completely in the matter of applications arising under section 438. Such a blanket bar, in their view, may cause great hardship to the persons seeking relief. It may be made clear that is not certainly the intention of this Court. The rule that ordinarily a litigant, coming with an application under S. 438, should approach the inferior court is not an absolute rule and as observed by Pathak, C.J., in Sher Singh's case (1972 Cri LJ 1607) (Him Pra) 'there may be a case where the interests of justice may be defeated if a party is required to apply to the inferior court first before approaching the High Court, and the rule must then given way to the interests of justice.' There may be cases, with special reasons, for approaching this court. A few instances may be noted.
13. In a particular case a person, one amongst many against whom a case is registered for a non-bail able offence, might have approached the Sessions Judge and the Sessions Judge might have rejected his application filed under section 438. It may not be desirable to ask the other co-accused, similarly situated when they want to approach this Court under S. 438, to approach that Court first.
14. There may be a person, a native of a mofussil town, but actually in the city and personally presents to this Court apprehending that he may be arrested in case he reaches his home town which also happens to be the place where the Court of Sessions is located. There may be similarly such cases of urgency, and it all depends upon the facts of each case. These can be characterised as cases with special reasons to approach this Court.
15. The learned Counsel for the petitioner in Cr.P. No. 460 of 1983 argued, when the law confers a right on the citizen to choose his forum as to why that right should be curtailed. He placed for my consideration a Full Bench decision of the Allahabad High Court in Onkar Nath Agarwal v. State, 1976 Cri LJ 1142. No doubt, though their Lordships say that 'it is left for the person to choose either of the two (forums), and 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.' However, this is what they further observe at para 8 :
'It may, however, be mentioned that inasmuch as Section 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 Session 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. In any case all depends upon the discretion of Judge hearing the case.'
Thus that court is in fact of the view that the High Court, in the matter of dealing with applications arising under section 438, may use its discretion and direct the applicant, in cases where the High Court of considers appropriate, to approach the Court of Session first.
16. If that is so, why not all concerned agree to follow some common guidelines. That in my view, would be healthier and all concerned would be aware as to how the matter, when it arises, may be approached. Counsel for the petitioner further argued that the litigants feel more confident in this Court, that it is easier to obtain relief here rather than in the Sessions Court, that the State Prosecutor and his colleagues would be readily available here, and therefore it may cause hardship to place any bar for persons approaching this Court under S. 438. I am unable to agree with these submissions of his. As already stated our Sessions Courts are manned by senior judicial officer - Sessions Judges. They are trusted to deal with matters involving capital punishment. Can they not deal with these applications as competently as any other Court does. Public Prosecutors not being readily available or matters not being posted expeditiously etc., are matters that may be set right on the administrative side. They are not reasons for choosing this Court in preference to those Courts.
17. The learned Counsel for the petitioner in Cr.P. No. 461 of 1983 submitted that Sessions Courts are also special Courts invested with powers to deal with cases arising under economic offences and also offences under the Prevention of Corruption Act, and that it may be embarrassing for them to deal with the anticipatory applications involving these offences. It should not be and it will not be. The guidelines laid down by the Supreme Court and by several High Courts in the matter of granting anticipatory bail are the same and apply to all types of cases. In fact in Gurbaksh Singh Sibbia's case (1980 Cri LJ 1125) (supra) the Supreme Court, looking at the problem from various angles, has laid down several guidelines. The possibility of granting anticipatory bail, even in economic offences, is envisaged. Anybody carefully going through that decision would understand the amplitude of the powers of the Courts including the Court of Session in the matter of granting anticipatory bail.
18. The learned State Public Prosecutor, who argued for the respondent-State in all these cases, submitted that it may be in the interest of justice to direct the parties to approach the Sessions Court first. He further argued that several High Courts have been following this practice. It is his case that if considerable time of this Court is consumed in dealing with such applications there may not be adequate time to deal with important matters, some pending since many years. In this connection he brought to my notice two decisions one of the Punjab and Haryana High Court in Chhajju Ram Godara v. State of Haryana, 1978 Cri LJ 608 and the other of Rajasthan High Court in Hajialisher v. State of Rajasthan 1976 Cri LJ 1658 - wherein the practice is to direct the parties to approach the Court of Session first.
19. After carefully considering all aspects of the matter I am of the view that normally a person seeking anticipatory bail under S. 438 of the Code should approach the Court of Session in the first instance. This would serve the ends of justice, public interest, and also the administration of justice. There may be cases with special reasons or involving special circumstances necessitating the person concerned to approach this Court at the first instance. If the reasons assigned by him to approach this Court at the first instance are found genuine, such an application may be considered by this Court. As Pathak C.J., puts it in Sher Singh's case (1972) Cri LJ 1607) (Him Pra) 'the rule must then give way to the interests of justice.'
19-A. Now, in the light of what is stated above let us examine each case.
In Cr.P. No. 472 of 1983 the apprehension is that the petitioner may be arrested in connection with an offence registered against him under section 420 I.P.C. There are no special circumstances. He may approach the Court of Session at the first instance. The petition is, therefore, disposed of.
In Cr.P. No. 460/83 the offence alleged against the petitioner, it is said, is one under section 376, I.P.C. The petitioner is a resident of Bangalore City. He may approach the Court of Session. The petition is, therefore, disposed of.
In Cr.P. No. 461 of 1983 the apprehension is that the petitioner may be arrested for violating a rule framed under the Essential Commodities Act and for offences under sections 3 and 7 of that Act. He hails from Mysore District. No Special grounds are made out for entertaining this application by this Court. Reserving liberty to the petitioner to approach the Court of Session this petition is disposed of.
In Cr.P. No. 463 of 1983 the petitioner, who is a lady, apprehends that she may be arrested in connection with various crime numbers registered at many places for an offence involving cheating - Section 420, I.P.C. This may also be conveniently dealt with by the concerned Sessions Court. Accordingly this petition is disposed of.
20. Petitions dismissed.