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TMI Blog1993 (2) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in Mohanlal v. Prem Chand, has taken the view that it is for the petitioner to move either the Court of Session or the High Court under Section 438 but the Karnataka High Court in K. C. Iyya v. State of Karnataka 1985 Cri LJ 214 (Karnataka), the Allahabad High Court in Onkar Nath v. State (Allahabad), and the Gujarat High Court in Rameshchandra v. State of Gujarat (Gujarat) expressed the opinion that in exceptional cases under Section 438 it is open to the High Court to entertain applications in the first instance, felt that, as this question is frequently cropping up for consideration and as there is no authoritative pronouncement by this Court, the matter may be considered by a Division Bench. In consequence of the aforesaid order of reference, these matters have been listed before us. 3. In view of the importance of the question we have requested Sri. K. G. Kannabhiran, Senior Advocate, to assist us as Amicus Curiae. The question is whether an application under S. 438 is maintainable in the High Court without the party approaching the Court of Session in the first instance Section 438 reads : 438. Direction for grant of bail to person apprehending arrest. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised. Quoted in Gurbaksh Singh v. State of Punjab, 1980CriLJ1125 . 4. With certain modifications, Clause 447 of the draft Bill, 1970 emerged as Section 438 of the Code of Criminal Procedure, 1973. 5. Sri. K. G. Kannabhiran has submitted that the practice of the Registry in returning the applications filed under Section 438 on the ground that the Court of Session was not first approached is clearly illegal. When the statute has conferred concurrent jurisdiction on the High Court and the Court of Session, there is no warrant for importing a rule of practice based on hierarchical approach that the Court of Session being subordinate to the High Court, it should first be approached by the party before moving the High Court under Section 438. The existing practice is also subversive of the guaranteed fundamental right under Article 21 of the Constitution of India. Section 438 being a procedure established by law to secure personal liberty, failure to entertain an application in the High Court under Section 438 would amount to violation of personal lib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the face of the express language of the provision conferring concurrent jurisdiction on the High Court and the Court of Session, we do not find any justification in the High Court declining to entertain the application under S. 438 on the ground that the party has not moved the Court of Session in the first instance. Contrary to the legislative command there can be no rule of practice. If a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, under Section 438 it is open to him to apply to the High Court or the Court of Session for anticipatory bail. The provision clearly implies that not only concurrent power is conferred on the High Court and the Court of Session but choice is given to the affected person to move either of the two fora. This concurrent jurisdiction and the choice given to the affected person cannot be impaired by any restrictive interpretation, contrary to the specific language, on the strength of rule of practice. 8. There is no provision in the Criminal Rules of Practice laying down that the Court of Session, in the first instance, should be approached under Section 438. Even if there were to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he freedom of the individual and the presumption of innocence ...... 11. The learned Chief Justice re-stated the well accepted principle that discretion conferred by a statute on a Court should not be interfered with by engrafting conditions upon such discretion which are not found in the enactment. The observations of Earl Loreburn L. C. in Hyman v. Rose 1912 AC 623 : ... It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all.... have been relied upon. 12. A Full Bench of the Himachal Pradesh High Court in Mohanlal's case (supra) has considered an identical question. Emphasising the aspect that concurrent jurisdiction has been conferred both on the High Court and the Court of Session, and that under Section 438 the High Court does not exercise revisional jurisdiction, the Full Bench expressed the view at page 38 : A bare reading of the section shows that no restriction, unlike Ss. 397(3) and 399(3), has been placed on a person wishing to mov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court of Session. 14. Learned Public Prosecutor says that it will be in the interests of the petitioners themselves to approach the Court of Session in the first instance because of the easy accessibility of the forum. In the event of the Court of Session not granting anticipatory bail, it is always open to the party to approach this Court, and while exercising the discretion under Section 438 this Court will have benefit of knowing the views of the Court of Session. He also says that, as Section 439 also confers powers both on the High Court and the Court of Session concurrent, the practice followed by this Court all-through is not to entertain any application in the High Court in the first instance under Section 439. In the matter of filing of revisions under the old Code the same was the practice of this Court. 15. In Shailabala Devi v. Emperor, a Full Bench of the Allahabad High Court highlighted the importance of the practice eclipsing the specific language of the statute. One of the questions before the Full Bench of the Allahabad High Court was whether an application in revision should be entertained by the High Court when the matter had not been taken to the Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to the High Court and cannot themselves pass an order in favour of the accused. Many accused persons may therefore think it more expeditious and much cheaper to come up straight to the High Court. The High Court would then be flooded with such applications. 16. A Division Bench of the Andhra High Court in Veera Ramayya v. Venkata, has approvingly referred to the aforesaid opinion of the Allahabad High Court and also observed inter alia that the legislature in conferring concurrent jurisdiction may reasonably assumed to have intended that inferior court should exercise jurisdiction in the first instance. 17. The authority of the Full Bench of the Allahabad High Court, as already noticed, was considerably weakened after the later decision of a Full Bench of that High Court in Onkar Nath's case (supra). There is no warrant for the supposition that, when concurrent jurisdiction is conferred, the legislature intended that the inferior Court should exercise jurisdiction in the first instance, especially in the field of Penal Law. After the authoritative view of the Supreme Court in Gurbaksh Singh's case (supra) : the proof of legislative intent can best be found in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 397(1) on the ground that the Sessions Judge has not been moved because once the Sessions Judge is moved, the High Court's jurisdiction will stand ousted by Sections 397 and 399(3). We are therefore of the view that the rule of practice laid down by the Full Bench in Alapati Sriramamurthy cannot any longer be followed ..... 21. A subsequent Full Bench of this Court in Re Puritipati Jagga Reddy, AIR1979AP146 , laid down that the law that .... a party who was been unsuccessful before the Sessions Judge, may seek to bring it to the notice of the High Court under Section 482 Cr.P.C. But that shall not be automatically taken notice of by the High Court. It must be scrutinised and examined whether there has been miscarriage of justice of in any particular case before it entertains any such petition filed by an unsuccessful party ..... 22. The practice followed by this Court in entertaining revision petitions under the old Code of Criminal Procedure 1898 cannot afford any guidance in the interpretation of Section 438 of the present Code. Which should be more convenient to the affected party cannot be conjectured by the High Court when Code confers concurrent jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y days, as the case may be, as enjoined in Proviso (a) to sub-section (2) of Section 167 of the Code. Viewed in this light, there is a discernible degree of difference as to the immediacy in moving the applications under Sections 438 and 439 : Compared to Section 438, the sense of urgency in Section 439 is less. Threat of being arrested on an accusation of having committed a non-bailable offence impels a person to rush to the Court under Section 438, because of fear of implication by rivals in false cases with the object of disgracing him, as very realistically observed by the Law Commission of India in its 41st report dated 24th September, 1969. 24. Protection of life and personal liberty is a guaranteed fundamental right under Article 21 of the Constitution of India. It enjoins that no person shall be deprived of his life and personal liberty except according to the procedure established by law. The protective umbrella of Article 21 comprehends many facets of personal liberty. As the Supreme Court recognised in Gurbaksh Singh's case (supra) denial of bail amounts to deprivation of personal liberty (paragraph 27 at page 1646). When the procedure incorporated under Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, therefore, it is not possible to interpret the Division bench judgment as laying down the proposition that even in the absence of any material, relief can be granted under Section 438 by this Court. The words 'reason to believe' occurring in Section 438 obligate the existence of objective material for the subjective satisfaction of the person apprehending arrest. That objective material must be capable of being examined by the Court. Only then the Court, if satisfied, will grant relief under Section 438 but not otherwise. 26. When the words are plain in an enactment, reliance on usage for interpreting the same is forbidden. It is only when the provision of law is silent on some aspects but speaks on some other aspects, usage may well supply the defect. (See 'Craies On Statute Law', Seventh Edition page 153). 27. Whether relief can be granted under Section 438 in the absence of registration of crime cannot be subject-matter of objection by the Registry; that must be decided by the Court on the judicial side. 28. For the foregoing reasons we hold that it is not obligatory under Section 438 to move the Court of Session in the first instance. It is always o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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