1983 (6) TMI 209 - HC - Indian Laws

Summary

Issues Involved:
1. Concurrent jurisdiction under Section 438 of the Code of Criminal Procedure.
2. Desirability of High Court imposing limitations on entertaining applications for anticipatory bail at the first instance.
3. Precedents and practices regarding the approach to either the High Court or the Court of Session.
4. Special circumstances warranting direct approach to the High Court.

Issue-wise Detailed Analysis:

1. Concurrent Jurisdiction under Section 438 of the Code of Criminal Procedure:
The judgment begins by acknowledging that under Section 438(1) of the Code of Criminal Procedure, 1973, both the High Court and the Court of Session possess concurrent jurisdiction to grant anticipatory bail. The provision allows a person apprehending arrest for a non-bailable offense to apply to either court for bail. This concurrent jurisdiction is also observed in other sections like Section 439 (granting bail to a person in custody) and Section 397 (revisional jurisdiction).

2. Desirability of High Court Imposing Limitations on Entertaining Applications for Anticipatory Bail at the First Instance:
The court deliberates whether it is desirable for the High Court to impose certain limitations on entertaining anticipatory bail applications at the first instance. It is emphasized that such a course should only be adopted if it serves the ends of justice. The court notes that historically, several High Courts have directed parties to approach the Court of Session first, thereby easing the burden on the High Court. The judgment cites the practice followed under the old Code of Criminal Procedure and the intention of the legislature to empower the Court of Session to share the burden of administering criminal justice.

3. Precedents and Practices Regarding the Approach to Either the High Court or the Court of Session:
The judgment refers to various precedents and practices from different High Courts. It notes the observations of Chandrachud, C.J., in Gurbaksh Singh Sibbia v. The State of Punjab, emphasizing the wide discretion entrusted to higher courts in granting anticipatory bail. The judgment also references the Himachal Pradesh High Court decision in Sher Singh v. Singha Singh, which advocated for approaching the Sessions Judge first. The reasoning includes the advantage of having the opinion of the inferior court, convenience, and preventing the superior court from being flooded with cases. Conversely, the judgment cites the Jammu and Kashmir High Court decision in Mir Gulam Ahmed v. Haji Abdul Rehman, which argued against insisting that litigants approach lower courts first, considering it burdensome and costly for the litigants.

4. Special Circumstances Warranting Direct Approach to the High Court:
While generally advocating for approaching the Court of Session first, the judgment acknowledges that there may be special circumstances necessitating a direct approach to the High Court. Examples include cases where co-accused have already been denied bail by the Sessions Judge, or situations involving urgency where approaching the Sessions Court might not be feasible. The judgment stresses that the rule is not absolute and must give way to the interests of justice when special reasons are presented.

Application of Principles to Individual Cases:
- Cr.P. No. 472 of 1983: The petitioner apprehending arrest under Section 420 IPC is directed to approach the Court of Session first as no special circumstances are presented.
- Cr.P. No. 460/83: The petitioner, a resident of Bangalore City, facing allegations under Section 376 IPC, is also directed to approach the Court of Session.
- Cr.P. No. 461 of 1983: The petitioner, apprehending arrest for violating the Essential Commodities Act, is advised to approach the Court of Session as no special grounds are made out.
- Cr.P. No. 463 of 1983: The petitioner, a lady facing multiple charges under Section 420 IPC, is directed to approach the concerned Sessions Court.

Conclusion:
The petitions are dismissed with directions for the petitioners to approach the Court of Session first, except in cases where special circumstances justify a direct approach to the High Court. The judgment emphasizes the importance of following established guidelines to ensure justice, public interest, and efficient administration of justice.