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TMI Blog1976 (1) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 4408 of 1975 is by Jyoti Prasad Misra, who apprehended his arrest for an offence under Rule 43 read with Rule 36 of the Defence of India Rules and under Section 121 of the Indian Penal Code. 2. A preliminary objection as to the maintainability of the applications in the High Court appears to have been taken by the learned Government Advocate inasmuch as the applicants did not move the Sessions Judge concerned before making an application-for anticipatory bail in the High Court. Accordingly the following question has been referred to us: Whether an application for, anticipatory bail under the provisions of the Section 438 of the Code of Criminal Procedure, 1973, is maintainable in the High Court without such an applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the first place there must exist a ground to believe that he may be arrested and secondly there must be an accusation of his having committed a non boilable offence. The language is plain and unambiguous. It clearly contemplates two forms for moving an application for anticipatory bail, namely the court of Sessions and the High Court. Both the jurisdictions are concurrent and it is left for the person to chose either of the two. The second part enables the High Court or the court of Sessions, as the case may be to give a direction for his release. The provisions read as a whole does not prima facie create any bar that he must apply to the court of Sessions first before coming to the High Court to seek his redress. 7. The words th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court under Section 498 of the Code of Criminal Procedure without moving a similar application in the court of Sessions. This contention was repelled and it was observed: I think the power of the High Court under Section 498 of the Code of Criminal Procedure are wide and unfettered. The High Court in its discretion can exercise those powers even if the accused does not approach the subordinate courts or authority for his release first. 9. It may, however, be mentioned that inasmuch as Section 438 of the Code of Criminal Procedure, 1973 gives a discretionary power to grant bail, this discretion is to be exercised according to the facts and circumstances of each case. There may be cases in which it may be considered by the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut any loss of time and without the necessity of sending it through the post. The proceedings are also likely to be less expensive. The High Court is a superior Court and its time would not be unnecessarily spent in examining the record and in some cases even considering the evidence, when a subordinate court has already considered the matter and made its report. Further, the High Court would have the opinion of another Court before it which would be of help. In practice no great harm is likely to be suffered by the accused, if he is required to go to the District Magistrate or the Sessions Judge in the first instance. When a practice of this kind becomes well-known to the members of the Bar in the Mofussil and in the High Court the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court is to refuse to entertain application where the applicant did not approach the Sessions Judge first, but there is no hard and fast rule and in suitable cases the High Court has been known to depart from this practice and to accept revisions that have not been previously considered by a Sessions Judge. Similarly in Municipal Board v. Bhim Singh 1962 AWR 199 D.S. Mathur, J. as he then was, observed: But where the High Court entertains a revision directly without the party having approached the Sessions Judge there would be no illegality but a mere departure from the above practice.... 12. The recent view, therefore, appears to be that the Courts should have unfettered discretion and may entertain revision notwithstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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