1993 (2) TMI 341 - HC - Indian Laws

Summary

Issues Involved:
1. Whether it is obligatory to first file an application u/s 438 in the Court of Session before approaching the High Court.
2. The legality of the Registry's practice in returning applications filed u/s 438 on the ground that the Court of Session was not approached first.
3. The interpretation of the concurrent jurisdiction conferred by Section 438 of the Code of Criminal Procedure, 1973.

Summary:

1. Obligation to File Application u/s 438 in the Court of Session First:
The primary issue was whether an application under Section 438 of the Code of Criminal Procedure, 1973, should first be filed in the Court of Session. The Court examined the language of Section 438, which explicitly confers concurrent jurisdiction on both the High Court and the Court of Session for granting anticipatory bail. The provision implies that the affected person has the choice to move either of the two fora. The Court concluded that there is no obligation to approach the Court of Session first, and the High Court can entertain applications under Section 438 directly.

2. Legality of Registry's Practice:
The Registry had been returning applications filed under Section 438 on the ground that the Court of Session was not first approached. The Court found this practice to be illegal, as it contradicts the clear language of Section 438, which does not impose such a requirement. The Court emphasized that the concurrent jurisdiction conferred by the statute cannot be impaired by any restrictive interpretation based on a rule of practice. The existing practice of the Registry was deemed impermissible in law.

3. Interpretation of Concurrent Jurisdiction:
The Court examined the concurrent jurisdiction conferred by Section 438 and concluded that the choice of forum (High Court or Court of Session) is given to the affected person. The Court noted that there is no provision in the Criminal Rules of Practice mandating that the Court of Session should be approached first. Even if such a rule existed, it would not have any legal effect. The Court highlighted that the legislative intent can best be found in the language used in the statute, and any departure from this would be justified only if the literal meaning leads to absurdity or undermines the purpose of the enactment.

The Court also referred to various judgments, including those of the Himachal Pradesh High Court and the Allahabad High Court, which supported the view that a person is not required to move the Sessions Judge first under Section 438. The Court emphasized that any practice contrary to the legislative command cannot be upheld.

Conclusion:
The Court held that it is not obligatory to move the Court of Session first under Section 438. The High Court can entertain applications under Section 438 directly. The existing practice of the Registry in returning such applications was declared illegal. The Court directed the Office to number the petitions if otherwise in order and post them before a learned single Judge for disposal in accordance with law. The valuable assistance rendered by the Amicus Curiae was gratefully acknowledged.