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Amiya Kumar Sen Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1979CriLJ288
AppellantAmiya Kumar Sen
RespondentState of West Bengal
Excerpt:
- .....therein and we have no doubt to hold that the said section gives the petitioner for anticipatory bail a choice as to the forum where he is to apply. two courts are empowered to grant bail under section 438, namely, the high court and the court of session, but the petitioner may choose one of the two courts and apply to the court of his choice. we cannot hold that if the petitioner approaches the court of session for the relief under section 438 and if his prayer is rejected, he will be again entitled to approach the high court for the same relief on the same ground under that section. in the present case, therefore, the second petition for anticipatory bail by the petitioner before this court is not maintainable after the rejection of the first one by the court of session.8. in the.....
Judgment:

R. Bhattacharya, J.

1. This is an application under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail filed by the petitioner Amiya Kumar Sen in connexion with the Tollygunge P. S. Case No. 312 dated 2-5-1978 under Section 120B/ 408/477A/109 of the Indian Penal Code. It is being opposed by Mr. Biren Mitra, the learned public prosecutor assisted by Mr. N. A. Chowdhury. Mr. Amulya Kumar Mukherjee, the learned Advocate appears on behalf of the petitioner.

2. A preliminary objection has been taken by Mr. Mitra regarding the maintainability of the application on the ground that when the petitioner filed an application before the learned Sessions Judge under Section 438 of the Code of Criminal Procedure, 1973 and the same was rejected, the second application before the High Court in connexion with the same case and on the same grounds, is not maintainable according to the provision under Section 438 itself. Mr. Mukherjee's contention, however, is that even if an application before the Court of Session is rejected, a second application on the same grounds before the High Court is legal.

3. The Sub-section (1) of Section 438 of the Code of Criminal Procedure, 1973, therefore, requires consideration. It reads 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 to such arrest he shall be released on bail. The question, therefore, is whether according to the provision as mentioned above the applicant is to apply to one of the Courts, namely, the High Court and the Court of Session for his redress, or in other words, whether the petitioner has the choice only of one of the alternatives namely High Court or the Court of Session to approach for the redress or whether according to the provision, the petitioner may approach the High Court if his application for anticipatory bail is rejected by the Court of Session.

4. We have seen in provision quoted above that the petitioner 'may apply to the High Court or the Court of Session.' There is the word 'or', a conjunction in between 'the High Court' and 'the Court of Session.' First of all we are to see the plain meaning of language used in Sub-section (1) of Section 438 of the Code. For that purpose we are to see also the grammatical construction of the sentence used. F. J. Rowe and W. T. Webb in 'Hints on the Study of English' mention 4 uses of the conjunction 'or''

(1) It is strongly alternative:

(2) It has little or no alternative force :

(3) It introduces an alternative name or synonym .

(4) It is used for 'otherwise':

In 'English Grammar Series' Book IV by J. C. Nesfield, we also get that the conjunction 'or' has four separate meanings or uses

(a) An alternative or exclusive sense:

(b) An inclusive or non-alternative sense where 'or' is merely equivalent to 'and':

(c) To indicate that one word is synonymous or nearly synonymous with another and

(d) As an equivalent to 'otherwise.' In this Treatise we get four kinds of co-ordinating conjunctions, namely cumulative, alternative, adversative and illative. At page 104 of this Book of 1946 Edn., we get illustrations and the conjunctions in respect of four kinds already mentioned. By 'alternative' is meant 'choice' offered between one and Anr. and in this use we find the conjunction 'or.' A reading of the simple language used in Sub-section (1) of Section 438 we get the clear and unambiguous meaning that the petitioner for anticipatory bail may apply to either of the Courts, namely, the High Court and the Sessions Court. He will have choice for one of the alternatives, that is to say, either he is to apply to the High Court or to the Sessions Court. Here the word 'or' has been used in alternative or exclusive sense. This would be further evidenced from the use of the words 'that Court may' in the section indicating singular number.

5. Our attention has been drawn to some of the sections of the Code of Criminal Procedure, 1(573, namely, Sections 439 and 397. In Section 439 we get that the Code gives special powers to the High Court and the Court of Session in the matter of bail as stated there and the language used is 'The High Court or the Court of Session may direct ... ' Here the conjunction 'or' has been used in non-alternative sense equivalent to 'and.' The question of its use in the alternative sense does not arise and the language used clearly says that it has been used in non-alternative sense. In that section the Courts are vested with powers. With regard to Section 397 of the Code, we again find that by this provision the High Court and the Sessions Judge have been vested with powers of revision. The language used here is 'the High Court or any Sessions Judge may call for and examine the record.... ' Here again it is quite clear that both the High Court and the Sessions Judge are empowered to exercise revisional jurisdiction as stated there. In this case also the question of alternative forum or choice does not arise. Here the word 'or' has been clearly used in non-alterna- tive sense to mean 'and.' In this connexion we find similar use of the word 'or' in Section 398 of the Code. The question of choice in that section does not arise. But Sub-section (3) of Section 399 of the Code puts restriction to the right of the petitioner where it has been stated that the decision of the Sessions Judge on an application for revision shall be final and no further proceeding by way of revision at the instance of the applicant shall be entertained by the High Court or any other Court. Although co-ordinate powers have been given to the High Court and the Sessions Judge, the approach of the applicant to both the forums has been barred as already stated. Although two forums were vested with powers, the applicant has been given the choice to select one of the forums.

6. In the instant case, therefore, we find that Section 438 has given a choice of selecting the forum for filing the petition for anticipatory bail to choose either the High Court or the court of Session though both the | Courts have been made forums for the approach of the applicant. This section gives right to the party with restricted choice. This provision for alternative choice is quite consistent with the object of the Code of Criminal Procedure, 1973 to avoid delay of disposal of criminal cases and to avoid the abuse of the processes of the Court and also the wastage of Court's time.

7. We have given our best consideration to the provision contained in Section 438 of the Code of Criminal Procedure, 1973 and the language used therein and we have no doubt to hold that the said section gives the petitioner for anticipatory bail a choice as to the forum where he is to apply. Two Courts are empowered to grant bail under Section 438, namely, the High Court and the Court of Session, but the petitioner may choose one of the two Courts and apply to the Court of his choice. We cannot hold that if the petitioner approaches the Court of Session for the relief under Section 438 and if his prayer is rejected, he will be again entitled to approach the High Court for the same relief on the same ground under that section. In the present case, therefore, the second petition for anticipatory bail by the petitioner before this Court is not maintainable after the rejection of the first one by the Court of Session.

8. In the result, the application is rejected as not maintainable.

Monoj Kumar Mukherjee, J.

9. I agree.


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