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TMI Blog2003 (8) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... pplications were decided by a learned Single Judge of this Court vide order dated May 3, 2003. On a consideration of the matter, the learned Judge had taken the view that in respect of bail applications, 'frog leaping cannot be permitted'. While it was acknowledged that this Court had the jurisdictional competence.... to consider and exercise powers in an application for bail/anticipatory bail under Section 438/439 of the Criminal Procedure Code at the first instance, it was observed that there was need for a salutary procedural self-imposed rule or restriction . Thus, it was held that the High Court shall not ordinarily (and except under exceptional circumstances) exercise its powers under Sections 438 and 439 of Code of Criminal Procedure without and before the Sessions Court having concurrent jurisdiction is moved for identical relief . It was further observed that the Court must be very careful and circumspect in identifying such exceptional cases . To effectuate this order, the learned Judge gave the following directions: In the result, the petitions are dismissed and the following directions are issued:- i. Applications under Sections 438 and 439 Crl. P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain language of the statute, there was no reason for imposing the restrictions laid down in the judgment. The claim made on behalf of the applicant has been supported by Mr. Rajendran who states that even a petition under Article 226 has been filed to challenge the legality of the directions given by the learned Judge. Mr. Madhavan Nambiar, Director General of Prosecution appearing for the State has also submitted that the directions as given by the learned Judge need to be given a second look. 4. The Code of Criminal Procedure did not initially provide for the grant of anticipatory bail. Whether a petition could be entertained under the inherent jurisdiction of the court was a debatable issue. There was divergence of judicial opinion. The preponderance of judicial opinion was that only a person in custody could claim bail. The Law Commission considered the advisability of providing for anticipatory bail. In the 41st report. it observed: The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e need for making a provision regarding grant of anticipatory bail was recognised. The obvious object was to protect a person who was apprehending arrest at the instance of an 'influential' opponent. The purpose was to save him from humiliation and harassment. The provision was made to ensure that he must get an opportunity to approach the Court and save himself from harm to his reputation. He was, thus, given the choice to approach the Court of Sessions or the High Court. 8. The learned Judge has taken the view that considerations of convenience, expediency, inexpensive justice and saving time of the superior court for' sublime pursuits' are relevant. Thus, there is need to adopt the salutary principle of self-imposed restraint. 9. It is undoubtedly true that the provision in Sections 438 and 439 confer jurisdiction on the Sessions Judge to entertain an application for anticipatory as well as regular bail. It is also true that the Court should respect institutional hierarchy. The higher court must show faith and respect for the lower court. However, it is equally important to remember that in matters of personal liberty, the right conferred on a citizen has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns Court. The petition is clearly maintainable. Equally. it cannot also be said that he must make out an 'exceptional' case before his petition for bail can be entertained. Acceptance of the view as laid down by the Court in Usman's case may result in defeating the right to liberty as guaranteed under the Constitution. 12. It is undoubtedly true that the courts have not commenced 'frog leaping'. This view was expressed in Mathew Zacharia vs. State of Kerala, 1974 KLT 472. while examining a petition under S. 497. The court was obviously considering a matter before S. 438 had been brought on the Statute book. The obvious reason was that the Code did not confer the right to choose. Even otherwise, the Courts respect the principle of hierarchy. This, however, cannot mean that the doors of this Court shall be shut out to a person whose liberty is under an imminent threat and he will be allowed entry only after the bail has been declined by the Sessions Court. Accepting this principle may result in denial of liberty. We need to remember that for a majority of people, the sight of prison is painful. The thought of the trauma is terrifying. It creates a terror in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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