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TMI Blog2018 (11) TMI 1847X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. - Criminal Writ Petition No. 2059 of 2018 - - - Dated:- 2-11-2018 - Rajiv Sharma And Manoj Kumar Tiwari, JJ. For the Appellant Bhuwan Bhatt, Advocate. For the Respondents : Kuldeep S. Rawal, Brief Holder. JUDGMENT Rajiv Sharma, J. 1. Learned Single Judge has referred to the Court a question of great public importance. 2. The core issue involved in the references is whether the High Court and the Court of Sessions exercises concurrent jurisdiction under Section 438 of Cr.P.C. 3. A learned Single Judge of this Court in Anticipatory Bail Application No. 02 of 2018 has held that the provisions of Section 438 of Cr.P.C. are guided by the principles of Regular Bail. He has also held that the provisions of Section 438 of Cr.P.C. are pari materia with Section 439. 4. Anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition that he will appear to take his trial. Personal recognizance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Code of Criminal Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that, after all, the legislature in its wisdom has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected. 10. The principles of anticipatory bail have also been dealt with by the Full Bench of Himachal Pradesh High Court in AIR 1980 Himachal Pradesh 36, in the case of Mohan Lal others vs. Prem Chand others . The Full Bench has held that the applicant cannot be compelled to apply to Sessions Judge before approaching High Court. The Full Bench has held as under:- 5. The new Code has made material changes in respect of the powers of revision of the Sessions Judge. While conferring concurrent revisional jurisdiction on the High Court and the Court of Session, the right of a person to invoke the revisional jurisdiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be entertained by the High Court or any other Court. 6. It will be noticed that Sub-section (3) of the aforementioned section prohibits a person from invoking the revisional jurisdiction of more than one courts. But an applicant is given liberty to choose the court. If he so desires he may straightway make an application to the High Court. 7. In view of the changes made by: the new Code, Rule 3 of Chapter I-A (b) of Vol. V of the High Court Rules and Orders so far as it requires an applicant to move the Sessions Judge before making an application before the High Court has become ultra vires. A rule cannot alter, amend or modify the statutory provisions. The right conferred by the new Code cannot be taken away by a rule framed by the High Court. The enforcement of this rule will result in preventing all persons to move the High Court in revision against all orders passed by a Magistrate. Once the statute has given a right to a person to choose between the High Court and the Court of Session it is for him to choose the Court. The Parliament having spoken we cannot be wiser. 9. We, therefore, hold that an applicant cannot be asked to apply to the Sessions Judge before mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n High Court and Court of Session to grant anticipatory bail. The denial of right of moving to High Court in first instance amounts to violation of Article 21 of the Constitution. The Division Bench has further held that it is not obligatory to file an application under Section 438 of Code before Court of Session in the first instance. The Division Bench has held as under:- 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 438 in unequivocal language confers power both on the High Court and the Court of Session to grant anticipatory bail, denial of the right of move the High Court, in the first instance, clearly amounts to violation of the guaranteed fundamental right under Article 21 of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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). 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 open to this Court when an application is filed under Section 438, without first moving the Court of Session, to consider all the circumstances, and if the situation warrants, this Court can direct the party to move the Court of Session. Passing of such an order in consequence of exercise of discretion is different from insisting upon the party to move the Court of Session in the first instance as an inflexible rule of practice. The existing practice of the Registry in returning applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other hand, a restricted view has been taken in certain Single Bench decisions by the High Court of Rajastan, Punjab and Bombay. These cases are Hajialisher v. State of Rajasthan, 1976 Crl. L.J. 1658; Chhajju Ram Godara Others v. State of Haryana Another. 1978 Crl. L.J. 608, Jagannath v. State of Maharashtra 1981 Crl. L.J. 1808 and K.C. Iyya v. State of Karnataka 1985 Crl. L.J. 214. However, on consideration of the matter, the view taken by the two Full Benches and the Division Bench commends itself to us. We respectfully follow it. 17. In view of the above, we are of the opinion that the provisions of Sections 438 and 439 do not call for a restricted interpretation. The citizen has the right to choose. His application should be considered. Each case should be examined on its own merits. If it is found that the ground for grant of bail is not made out, the Court has the full jurisdiction to deny relief. Equally, if a case is made out the citizen's liberty should not be allowed to be curtailed. However, we do not find any ground to deny the citizen's right to choose the forum to approach the Court and to make a prayer. This is not warranted by the provision. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal vendetta of the complainant. But at the same time the provisions of Section 438 Cr.P.C. cannot also be invoked to exempt the accused from surrendering to the court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 Cr.P.C., since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the court at all even during the trial. 20. Section 438 Cr.P.C. contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the court and pray for regular bail. On the strength of an order granting anticipatory bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court. 21. If what has been submitted on behalf of the appellant that Respondent 1 has never appeared before the trial court is to be accepted, it will l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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