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TMI Blog1983 (6) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... ple S. 439 of the Code is one such. It enables these courts to grant bail to a person in custody. Similarly S. 397 of the Code has invested both this Court and the Court of Session with concurrent revisional jurisdiction. However, under S. 397 if a person approaches either of these courts he cannot again agitate that matter by way of a revision in the other Court. But such is not the case in the case of applications under S. 438 or S. 439 of the Code. Even under the Code of Criminal Procedure, 1898 (old Code) this Court and the Court of Session had concurrent powers of revision under S. 435 and power to grant bail under S. 498 of that Code. Similar questions having arisen under those provisions of the old Code courts in India had occasion to deal with this matter. Several High Courts in the Country had followed uniformly, for a number of years, the practice of directing the parties to first approach the Court of Session and later, if need be, the High Court. Some High Courts also had taken a contrary view. Those decisions will be of considerable help to us in understanding the question posed above. In this connection may also be relevant to note that the new Code has enlarged the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anan v. Kannamma Bhargavi, (FB) where a Full Bench of the Kerala High Court has observed that there is no legal bar to a party approaching the High Court without first moving the Sessions Judge or the District Magistrate Reference was made to the practice prevailing in that High Court. There is no doubt that a party is entitled to apply to the High Court even as he is entitled to do so before the learned Sessions Judge. But whenever concurrent jurisdiction is vested by the statute simultaneously in two courts, one superior to the other. I consider it appropriate that the party should apply to the inferior court first. There are a number of reasons persuading me to that conclusion. Firstly, if a party is required to go to the inferior court in the first instance the superior Court has the advantage of the opinion of the inferior Court when the occasion arises for the exercise by it of its jurisdiction in the matter. Secondly, the inferior court is generally situated in the same or very near the place where the authority is situate from whose order the revision application is made, and it is more convenient and saves time for the record to be sent from that authority to the inferior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med's case 1973 Cri LJ 832 (J K) (FB) not to agree with those views but to give freedom of choice to the litigant to approach the High Court directly was that the revisional powers of the Sessions Judge under Section 435 of the old Code was very much limited unlike that of the High Court. In that case the challenge was to the order of a Magistrate stopping further proceedings on the ground that a civil dispute involving the very matter was pending. The Sessions Judge, in revision, by himself had no powers to grant the relief but had to make a reference to the High Court. Adverting to that fact, para-11, the learned Judge has observed as follows : It is manifest that if a litigant is forced to go to the Sessions Judge for considering matters in which the Sessions Judge cannot pass effective orders but only make a reference to this Court, then he will have to undergo two hearings before the matter can come up to the High Court. In these days when the needs of the nation have expanded beyond proportion, it will be a relevant factor to consider whether a litigant should be burdened with an additional cost of litigation when our duty is to make justice cheap and expeditious. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need be, so that he can assist the Sessions Court ? One of the relevant considerations that had weighed with the learned Judge (Pathak C.J.) was that such a practice would also ease the pressure of the High Court, as otherwise the High Court would be flooded with cases which can be more appropriately disposed of by the inferior court . If that was so, a decade ago, in 1972, is it not very much so now when the dockets of every superior court are full to the brim and when people, who are aware of their rights are approaching courts in larger numbers. 11. The learned Counsel for the petitioners, while urging that their applications may be considered on merits by this Court itself, offered their views separately viewing this question from different angles. 12. The learned Counsel at the Bar submitted that it may not be desirable to shut the doors of this Court completely in the matter of applications arising under section 438. Such a blanket bar, in their view, may cause great hardship to the persons seeking relief. It may be made clear that is not certainly the intention of this Court. The rule that ordinarily a litigant, coming with an application under S. 438, should approach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt may feel justified in asking the applicant to move the Sessions Court or to refer the matter to that Court. In any case all depends upon the discretion of Judge hearing the case. Thus that court is in fact of the view that the High Court, in the matter of dealing with applications arising under section 438, may use its discretion and direct the applicant, in cases where the High Court of considers appropriate, to approach the Court of Session first. 16. If that is so, why not all concerned agree to follow some common guidelines. That in my view, would be healthier and all concerned would be aware as to how the matter, when it arises, may be approached. Counsel for the petitioner further argued that the litigants feel more confident in this Court, that it is easier to obtain relief here rather than in the Sessions Court, that the State Prosecutor and his colleagues would be readily available here, and therefore it may cause hardship to place any bar for persons approaching this Court under S. 438. I am unable to agree with these submissions of his. As already stated our Sessions Courts are manned by senior judicial officer - Sessions Judges. They are trusted to deal with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d serve the ends of justice, public interest, and also the administration of justice. There may be cases with special reasons or involving special circumstances necessitating the person concerned to approach this Court at the first instance. If the reasons assigned by him to approach this Court at the first instance are found genuine, such an application may be considered by this Court. As Pathak C.J., puts it in Sher Singh's case (1972) Cri LJ 1607) (Him Pra) the rule must then give way to the interests of justice. 19-A. Now, in the light of what is stated above let us examine each case. In Cr.P. No. 472 of 1983 the apprehension is that the petitioner may be arrested in connection with an offence registered against him under section 420 I.P.C. There are no special circumstances. He may approach the Court of Session at the first instance. The petition is, therefore, disposed of. In Cr.P. No. 460/83 the offence alleged against the petitioner, it is said, is one under section 376, I.P.C. The petitioner is a resident of Bangalore City. He may approach the Court of Session. The petition is, therefore, disposed of. In Cr.P. No. 461 of 1983 the apprehension is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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