1976 (1) TMI 189 - HC - Indian Laws

Summary

Issues:
- Maintainability of anticipatory bail applications in the High Court without approaching the Sessions Judge first.

Detailed Analysis:

Issue: Maintainability of anticipatory bail applications in the High Court without approaching the Sessions Judge first

The judgment involves a reference arising from two applications for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973. The question referred was whether an application for anticipatory bail in the High Court is maintainable without first moving and having it rejected by the Sessions Judge. The learned Government Advocate argued that there is a practice in the High Court requiring applicants to approach the Sessions Judge first, citing previous cases to support this contention. However, the applicants' counsel contended that a practice contrary to the law cannot prevail.

The court analyzed Section 438(1) of the Code of Criminal Procedure, 1973, which allows a person to apply for anticipatory bail in the High Court or the Court of Sessions if they have reason to believe they may be arrested for a non-bailable offense. The provision clearly indicates that both the High Court and the Sessions Court have concurrent jurisdictions for such applications. The court emphasized that the discretion to grant bail lies with the respective courts, without any explicit requirement for applicants to approach the Sessions Judge first.

Referring to previous cases, the court highlighted that while there is a practice in the High Court to require approaching the Sessions Judge first for certain matters like revisions, there are exceptions to this practice. The court concluded that the discretion to entertain anticipatory bail applications should not be fettered by such practices. It emphasized that the courts should have unfettered discretion in bail matters under Section 438 of the Code of Criminal Procedure, to be exercised based on the circumstances of each case.

In conclusion, the court answered the reference in the affirmative, holding that a bail application under Section 438 of the Code of Criminal Procedure, 1973, may be filed in the High Court without the applicant first seeking relief from the Sessions Court.