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2018 (11) TMI 1847 - HC - Indian LawsConcurrent Jurisdiction - whether the High Court and the Court of Sessions exercises concurrent jurisdiction under Section 438 of Cr.P.C.? - HELD THAT - In the case of GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB 1980 (4) TMI 295 - SUPREME COURT , their Lordships of the Hon'ble Supreme Court have drawn the distinction between an ordinary order of bail and an order of anticipatory bail. Their Lordships have also held that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. The principles of anticipatory bail have also been dealt with by the Full Bench of Himachal Pradesh High Court in MOHAN LAL AND ORS. VERSUS PREM CHAND AND ORS. 1980 (5) TMI 120 - HIMACHAL PRADESH HIGH COURT where the Full Bench has held that the applicant cannot be compelled to apply to Sessions Judge before approaching High Court. Thus, the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. It is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly - the matter is remitted back to learned Single Judge who will proceed with the matter in accordance with law.
Issues Involved:
1. Concurrent jurisdiction of the High Court and the Court of Sessions under Section 438 of Cr.P.C. 2. Interpretation and application of Sections 438 and 439 of Cr.P.C. 3. The procedural fairness related to anticipatory bail and regular bail. 4. The right of an accused to choose the forum for anticipatory bail. Issue-wise Detailed Analysis: 1. Concurrent Jurisdiction of the High Court and the Court of Sessions under Section 438 of Cr.P.C.: The core issue addressed is whether the High Court and the Court of Sessions exercise concurrent jurisdiction under Section 438 of Cr.P.C. The judgment clarifies that according to the plain language of Section 438(1) of Cr.P.C., any person who has reason to believe that he may be arrested on accusation of having committed a non-bailable offence may apply to either the High Court or the Court of Session. This establishes that both courts have concurrent jurisdiction. 2. Interpretation and Application of Sections 438 and 439 of Cr.P.C.: The judgment differentiates between Sections 438 and 439 of Cr.P.C. Section 438 is invoked by an accused who is apprehending arrest for a non-bailable offence, while Section 439 is used to enlarge a person on bail who is already in custody. The principles of Sections 438 and 439 are not pari materia, as clarified by the court. The court referenced the Supreme Court's decision in "Gurbaksh Singh Sibbia vs. The State of Punjab" to highlight the distinction between anticipatory bail and regular bail. 3. Procedural Fairness Related to Anticipatory Bail and Regular Bail: The judgment emphasizes that the procedure established by law for depriving a person of liberty must be fair, just, and reasonable to meet the challenge of Article 21 of the Constitution. The Supreme Court in "Gurbaksh Singh Sibbia" held that Section 438 is designed to ensure that a person is not unjustly deprived of their liberty. The court must exercise discretion wisely and in consonance with established principles governing bail. 4. The Right of an Accused to Choose the Forum for Anticipatory Bail: The judgment discusses various precedents from different High Courts, including Himachal Pradesh, Andhra Pradesh, and Kerala, which have held that an applicant can directly approach the High Court for anticipatory bail without first moving the Sessions Judge. The Full Bench of Himachal Pradesh High Court in "Mohan Lal vs. Prem Chand" and the Division Bench of Andhra Pradesh High Court in "Y. Chendrasekhara Rao vs. Y.V. Kamala Kumari" affirmed that forcing an applicant to approach the Sessions Judge first could curtail their rights. The Division Bench of Kerala High Court in "Balan vs. State of Kerala" also upheld the right of the applicant to choose the forum. The judgment further references the Supreme Court's ruling in "HDFC Bank Ltd. vs. J.J. Mannan" which states that the objective of Section 438 is to prevent harassment or humiliation of the accused and that anticipatory bail should not be used to avoid appearing before the court during the trial. The court also cited "Barun Chandra Thakur vs. Central Bureau of Investigation" to affirm that the High Court has concurrent jurisdiction and that the accused can choose the forum. Conclusion: In conclusion, the court held that the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. and it is for the accused to choose the forum. This choice cannot be restricted by a narrow interpretation of Section 438. The matter was remitted back to the learned Single Judge to proceed in accordance with the law. Pending applications, if any, were also disposed of.
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