Applications for Bail - can be to the High court !!

30 views
Skip to first unread message

Vinayak

unread,
Feb 20, 2006, 4:13:03 AM2/20/06
to DivorceCases
*With thanks for Keralalawyer.com*

http://www.keralawyer.com/asp/detailedJudgement.asp?id=1237

Judgement - 03KLC-984

(Before R. Basant, J)

Saturday, the 3rd May 2003/ 13th Vaisakha, 1925

Party Array / Case No.

Usman : Petitioner

Vs

The Sub Inspector of Police & Ors : Respondents

Head Notes
---------------------

The powers vested in the High Court and the Court of Session
under Section 438 and 439 Crl. P.C. are concurrent. The powers are
equal and identical. I do also agree that the powers of the High Court
are not appellate, revisional or supervisory under Sections 438 and
439. It is a special original jurisdiction which the High Court
exercises under Sections 438 and 439. No doubt about the jurisdictional
competence of the High Court to entertain an application under Section
438/439 at the first instance.

1. There is absolutely no want of jurisdictional competence for the
High Court to consider and exercise powers in an application for
bail/anticipatory bail under Section 438/439 Crl. P.C. at the first
instance. It can exercise such jurisdiction even if the Sessions Court
were not called upon earlier to exercise such jurisdiction.

2. Following the salutary procedural self imposed rule of
restriction, a High Court shall not ordinarily, (and except under
exceptional circumstances) exercise its powers under Section 438 and
439 Crl. P.C. without and before the Sessions Court having concurrent
jurisdiction is moved for identical relief. say the High Court must be
very careful and circumspect in identifying such exceptional cases.
Myriad are the facts scenarios and the real life situations possible.
The High Court should not refuse to invoke its powers/discretion under
Section 438 and 439 merely because the Court of Session has not been
moved if circumstances warrant the exercise of such powers in the
interests of justice and in the interests of the sacro sanct right to
liberty of the individual. Without intending to be exhaustive I may
mention that the need to settle a question of law of general public
importance, the need to protect the interests of an accused
apprehending arrest in more than one Sessions Division within a State,
the incompetence of the Sessions Court to afford adequate and effective
relief in a given case for whatever reason, shall certainly bring the
case within the class of exceptional cases where this salutary rule
will not apply.


Judgement

JUDGMENT (Full Text)
----------------------------------------------------------

Basant, J.

1. Does an accused apprehending arrest or arrested already have
an unfettered option to approach this court under Section 438 or 439
Crl.P.C? Cannot this court in the interests of justice, expediency and
convenience insist, (re)introduce and enforce compliance with the
salutary and accepted rule of procedure that where two fora have
concurrent powers the forum lower in the hierarchy must be approached
before the doors of the superior one are knocked? These interesting
questions arise for determination in these Crl.MCs.

2. The facts scenario is simple.Crl.M.C.3265 of 2003 is an
application for anticipatory bail under Section 438 Crl.P.C. The
accused apprehends arrest in a crime registered under Sections 498A and
306I.P.C. Crl.M.C.3391 of 2003 is a petition for regular bail under
Section 439 Crl. P.C. where the accused has already been arrested on
4.4.2003 on the allegation that he has committed offences punishable
under Section 55(a) of the Kerala Abkari Act.

3. As this court sitting as the vacation court entertained doubts
about the desirability of approving the course adopted in many cases
that came up for consideration of the accused approaching this court
directly with applications under Sections 438 and 439 without and
before approaching the court of Sessions which has concurrent
jurisdiction under these statutory provisions, the learned Public
Prosecutor and the learned counsel were requested to advance arguments
on this interesting legal question. Most of the counsel chose to adopt
the very convenient course of getting their applications dismissed as
withdrawn with liberty to move the Sessions Court. Considering the
importance and the significance of the question raised, counsel who
have appeared before me on 29.4.2003, 30.4.2003 and 2.5.2003 have all
been permitted to advance detailed arguments if any on this question to
assist the court.

4. I shall first of all extract the relevant portions of the
statutory provisions.
"438. Direction for grant of bail to person apprehending
arrest.-(1) When any person has reason to believe that he may be
arrested on an accusation of having committed a non-bailable offence,
he may apply to the High Court or the Court of Session for a direction
under this section, and that Court may, if it thinks fit, direct that
in the event of such arrest he shall be released on bail.

(2)..............

439. Special powers of High Court or Court of Session regarding
bail.-(1) A High Court or Court of Session may direct-
(a) that any person the accused of an offence and in custody be
released on bail, and if the offence is of the nature specified in
sub-s (3) of s. 437, may impose any condition which it considers
necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any
person on bail be aside or modified:
................" (emphasis supplied)

5. The learned Public Prosecutor contends that though there can
be no dispute about the jurisdictional competence of this court in
appropriate and exceptional cases to entertain an application for
anticipatory bail/bail under Section 438/439 Crl. P.C. at the first
instance itself that cannot be the rule. The learned Public Prosecutor
relies on the well established and salutary rule of procedure that
where two fora are vested with concurrent authority, the superior one
can be approached by a party only after the inferior one is approached,
except in exceptional cases. The learned Public Prosecutor submits that
this rule must be adhered to in the interests of convenience,
expedition, inexpensive justice, avoidance of conflict of decisions and
of saving the time of the superior court for more sublime pursuits. The
learned Public Prosecutor submits that if the case is a fit one where
discretion can be invoked in favour of the petitioner, the Court of
Session would and should as well, invoke the discretion. In that case
the litigant would be saved of the unnecessary trouble approaching the
superior court. There is only one seat for the High Court of Kerala and
that is situated almost at the middle of the State. It would be very
inconvenient, more expensive and cumbersome for the parties to approach
the High Court. Relatively therefore, it will certainly advance the
interests of parties and save unnecessary expenses if the local
district courts in each district can entertain applications under
Section 438/439. So far as the State is also concerned, there can be
saving of a lot of expenditure as officers have to come from outlying
districts to the seat of the High court to instruct the Prosecutor. In
the interests the proper disposal of cases also it is very essential
that the Prosecutor gets proper assistance so that he can be of useful
assistance to the court. It would serve the cause of efficient and
prompt investigation as the investigating officers will not have to
proceed to the seat of the High Court and the case diary will not have
to be carried there to instruct the Prosecutor. It helps also in
adoption of uniform standards in respect of application/bail
applications in each district. It also saves the time of this court as
it will not be flooded with applications for bail/anticipatory bail
when relief can be obtained from the court of Session itself. If only
fit cases, where the discretion has not been exercised correctly by the
court of Session, come before the High Court for its consideration, the
time of the High Court can be saved. In that process quicker disposal
of applications for bail can also be ensured. The High Court also would
get the advantage of application of mind by the Court of Sessions to
the same facts earlier. In these circumstances the learned Public
Prosecutor submits that it will be more advantageous if this court
follows a self imposed rule of restriction that ordinarily applications
under Section 438/439 will be entertained by this court only if and
after the court of Session has considered the application earlier.

6. My attention has been brought to many precedents showing that
other High Courts have imposed such restrictions on
themselves-reserving always the jurisdictional competence and the
discretion to entertain an application for bail/anticipatory bail
directly at the first instance if the peculiar facts of a given case
warrant such a course.

7. As against this the learned counsel for the petitioners
contend that it is not permissible to impose any such fetter on the
right of a litigant to approach the superior court. The language of
Section 438 Crl. P.C. shows that the option to file an application
before the court of Sessions or the High Court is left to the
discretion of the applicant and not the court. So far as Section 439 is
concerned, though it does not refer to applications by the parties (and
the powers can be exercised even in the absence of an application) both
courts have concurrent jurisdiction and by a process of interpretation
or by imposing restrictions on itself the court cannot introduce any
such fetters on the option conceded under Section 438 and 439.
8. It is then contended that Section 438 and 439 are concurrent
powers. The High Court does not exercise appellate, revisional or
supervisory jurisdiction under Section 438 and 439. The jurisdiction in
both these cases, of the High Court, is special and original and in
these circumstances no such fetter can be placed on the option of the
party. Under Section 438/439 the petitioners are entitled to have first
consideration by the High Court uninfluenced by any earlier
consideration by the Sessions Court. If such a rule were followed the
High Court will never have the option/ability to consider facts without
being influenced by an earlier consideration by a subordinate court, it
is urged.

9. It is then submitted that the rule that the lower forum having
concurrent jurisdiction must be moved first is certainly not one of
universal acceptance. Considering the language of Section 438 and 439
such rule cannot be followed, it is urged.

10. It is contended that it may perhaps be permissible for courts
which have been following such a self imposed rule to continue with the
practice. But this court having not imposed any such restriction on
itself earlier, should not and need not introduce any such rule of
practice for the future.

11. Some of the counsel contend that the question to be decided
is one of signal significance. This is definitely not only an important
or very important question but it is a crucial question of general
public importance. Hence this court sitting as a vacation court may not
decide the issue and may make a reference to the Division Bench under
the relevant provisions of the Kerala High Court Act, it is submitted.

12. The counsel further urged that if such a practice were
introduced, the accused will have to suffer the evil consequences of
the laws delays. It would hurt their interest. Some of the Session
Court take a minimum of 10 to 15 days before an application under
Section 438 and 439 is finally disposed of. There is inevitable delay
in furnishing copies thereafter also. In these circumstances the
introduction of such a self imposed rule would jeopardize the interests
of the accused persons in custody/facing the prospect of arrest.

13. Finally it is contended that wherever the Legislature had
wanted such restrictions to be imposed on the exercise of concurrent
jurisdiction, that has been made clear in the respective statutory
provisions. Reliance is placed on Section 399(3) Crl. P.C. where it is
said that if one court having concurrent jurisdiction has exercised its
jurisdiction, the other will not be entitled to invoke such powers.
Reliance was also placed on the proviso to Section 407(2) Crl. P.C. to
contend that wherever the legislature wanted the superior court not to
exercise such concurrent jurisdiction before the subordinate court
exercises such powers, it is made clear in the provision itself. In
these circumstances by a process of interpretation such restrictive
rule may not be introduced placing fetters on the powers of the court,
it is urged.

14. It is submitted that under the Crl. Procedure Code or the
Kerala High Court Act or under the relevant rules framed there is no
provision by which it can be insisted that the Sessions Court must be
moved before the High Court is moved for grant of bail/anticipatory
bail. In these circumstances there can be no question of introduction
of a self imposed rule restricting the powers of the High Court, it is
argued.

15. My attention has been drawn to various precedents on the
point also. I shall advert to them later.

16. At the very outset I must note that the powers vested in the
High Court and the Court of Session under Section 438 and 439 Crl. P.C.
are concurrent. The powers are equal and identical. There is of course
the difference that the command of the High Court would run over a
larger geographical area. So far as the nature of the relief is
concerned both courts have exactly identical equal and concurrent
powers. This is a very serious distinction when we consider the other
analogous provisions as also precedents. Any relief which the High
Court can grant under Section 438/439 can also be granted by the Court
of Sessions. This is explicit from the language of the statutory
provisions. It is evident from precedents also.

16. I do also agree that the powers of the High Court are not
appellate, revisional or supervisory under Sections 438 and 439. It is
a special original jurisdiction which the High Court exercises under
Sections 438 and 439. It is by now trite and the decisions reported in
Gopinath v. State of Kerala (1986 K.L.T.107) and Puran v. Rambilas
(2001(6) S.C.C.338) make it very clear that notwithstanding the fact
that the powers are concurrent the High Court can exercise such powers
even after the Sessions Court exercises such powers earlier.

17. There can also be no doubt about the jurisdictional
competence of the High Court to entertain an application under Section
438/439 at the first instance. The question is only whether a self
imposed rule of restriction can be introduced in the procedure. In an
appropriate case, notwithstanding any such self imposed restriction the
High Court will be at liberty to entertain the application at the first
instance.

18. Under Section 438 and 439 a very wide discretion is conferred
on the superior courts. The legislature has chosen to confer such
discretion without any limitations. As to how the discretion must be
exercised and what restrictions must be imposed is certainly left to
the courts concerned. It is trite that in appropriate cases the High
Court would be justified in not entertaining an application under
Section 438/439 itself and can direct the court of Sessions to consider
such application or refer the parties to the Sessions Court. All that I
intend to note is that such a self imposed restriction on sound
judicial discretion is certainly not outside the amplitude of the
discretion conferred under Section 438 and 439 Crl. P.C.

19. I find merit in the submission of the learned Public
Prosecutor that in actual practice the imposition of such a restriction
while exercising the discretion would advance the interests of justice
convincingly. Experience shows that considerable amount of time in this
court is wasted for the Public Prosecutor to get instructions and to
enable him to peruse the case diary. The officers of the State have to
undertake unnecessary and avoidable trips to the seat of the High Court
to bring the case diary and to instruct the public Prosecutor. Often
this court finds that proper assistance is not available from the
public prosecutor on account of want of instructions and their
inability to have access to end peruse the case diary. The travelling
up and down of the case diary does also interfere with proper and
prompt investigation also. Unnecessary delay, inconvenience and
expenses is caused to the parties also when relief which could have
been obtained from the court of Sessions is unnecessarily sought from
this court.

20. The argument that the party has an unfettered option to
choose the forum does not appeal to me. The legislature when it
conferred concurrent jurisdiction must be presumed to have been aware
of the salutary rule of procedure that ordinarily the superior
court's time and resources will be and can be called in aid only
after the court of lower jurisdiction is moved. From the language of
Section 438 and 439 according to me it would be imprudent to jump to
the conclusion that an unfettered option was conferred on the applicant
in an application under Section 438 and 439 Crl. P.C.

21. I do not find mush merit in the contention that if the
Sessions court once applies its mind, the High Court will not be able
to apply its mind independently. That proposition does not appeal to me
as correct or reasonable. In the hierarchy of courts it must be
presumed that the superior courts do have the judicial competence and
ability to exercise their discretion appropriately whether the
subordinate court has earlier considered the question or not. It will
be apposite to note that powers under Sections 438 and 439 are vested
only in superior courts like the court of Sessions and the High Court
which are presumed to be manned by experienced and competent personnel.
The fact that a subordinate court has already applied its mind does not
appeal to me as a sufficient reason to assume that the superior court
will not be able to apply its mind independently and properly. That it
has the result of application of mind by another authority having
concurrent jurisdiction is to be reckoned only as an advantage and not
certainly as a fetter or disadvantage.

22. Reference to Section 399(3) and 407(2) do not also lead me to
any contra conclusion. Section 399(3) is a peculiar provision, which
after concurring concurrent powers takes away the powers of the
authority if the other authority having concurrent powers has already
exercised its powers. That restriction cannot and does not apply to
application u/s. 458/459 Crl. P.C. cannot lead to the conclusion that
in all that cases where there is conferment of concurrent powers on two
for a no self imposed restrictions can apply. Similarly the powers
under Sec. 406 and 407 cannot certainly be reckoned as concurrent.
Separate conferment is made of the power of transfer on the court of
Session and the High Court under these provisions. The proviso to S.
407(2) cannot in these circumstances help the court to conclude that no
self imposed restriction can be made in the matter by the court in the
absence of an identical salutary stipulation in S. 438 and 439 Crl.
P.C.

23. The argument that such a self imposed restriction cannot be
placed and that would run against the intent of the legislature cannot
also obviously succeed as the salutary rule has been tested by the
times and has been accepted and followed by courts in the absence of
exceptional reasons. The legislature when it conferred concurrent
powers on the court of Session and the High Court must be presumed to
have known and assumed that the provision will be understood and
interpreted consistent with the well accepted rules of interpretation
and that the statutory rule of procedure referred above shall also be
followed while construing the statutory provision.

24. Coming to the delay I am appalled to hear the submission that
some Sessions Courts take as many as 10 to 15 days on an average to
dispose of applications under Sections 438/439 Crl. P.C. The system
must hang its head down in shame if that submission were factually
correct. Liberty of an individual is given paramount importance under
the system of laws in which we function. If courts of session do not
imbibe the sublime respect for liberty which the system mandates, it
would be a very unfortunate state of affairs. If such a practice exists
it must certainly be discontinued forthwith. Every application for
bail, whichever be the court, must ideally be disposed of on the same
date as its filing. But sometimes to comply with the requirement of
giving notice and getting instructions, it may be necessary to deviate
from that ideal rule. But even then there can be no justification for a
bail application remaining without disposal beyond a period of three
working days. That must be the outer limit whatever be the hierarchy of
the court.

25. Similarly it is submitted that it takes a long period of time
to get copy applications complied with. I am shocked tp hear submission
on this sad state of affairs also. Order in every bail application must
be given to the party/counsel by the court on the date on which such
orders are pronounced. It must be the duty of the system to ensure
this. It would be unreasonable to deny the party the advantage of a
copy on the date of the order. Lip service to the cause of liberty will
not suffice. A person is entitled to know immediately why his
application for bail is dismissed. He is entitled thereafter to seek
his relief before superior courts. Fetters cannot be placed on such
rights by the unreasonable delay in furnishing copies. The law has
already accepted this obligation to furnish copies on the date of
pronouncement of the order. Order Rule 6B C.P.C. and Section 363 (1)
Crl.P.C. recognize and accept this requirement. If that be so I can
find no reason why the principle should not be followed in the matter
of furnishing copies of orders in bail/anticipatory bail applications
also.

26. It is submitted that separate applications are insisted for
copies. This is totally unnecessary. It is common knowledge that any
person who makes an application before court would be interested in
getting copy of the order passed on such application. The court fee
collected must definitely and certainly include or deemed to include
the requisite expenses for furnishing copy also. If necessary court fee
may have to be increased. But certainly it is puerile to insist on a
separate application for a copy of the order from a party. At any rate
here it must certainly be insisted that copies of orders in bail and
anticipatory bail applications must be furnished free of cost to the
party-simultaneously with the pronouncement of the orders.

27. It is submitted that at the Sessions Court the Prosecutors do
not have as much and efficient assistance as is available to the law
officers of the High Court. In the Magistrate's court also, such
assistance is not available. In these circumstances it is submitted
that unnecessary and avoidable delay would unfortunately occur if the
claimants have to approach the Sessions Court for the relief under
Section 438 and 439 Crl.P.C. This again should not occur and should not
in any way contribute to the delay in disposal of applications under
Section 438 and 439. It is the responsibility of the system to make
sure that such delay is avoided.

28. Appropriate safeguards can be insisted to avoid such delay in
the disposal of bail/anticipatory bail applications and the furnishing
of copies and in these circumstances the delay aspect cannot stand
against the acceptance of such a salutary self imposed procedural rule
of restriction.

29. It is submitted that there is no practice available in the
High Court of Kerala. All the relevant precedents were considering only
the advisability of continuing with an existing practice. A new
practice may not be introduced by this court by accepting such a rule,
it is urged. It is true that such a rigid rule has not been insisted by
this court. But that again cannot persuade me to hold that it is not
necessary to adhere to such a salutary procedural rule of self imposed
restriction if the same is found to be proper, legal and advantageous.

30. That no rules under the Crl.P.C. , the High Court Act and
Rules impose such a restriction is not at all relevant. If such a rule
of restriction can be imposed it is in exercise of the wide discretion
available to the court under Section 438 and 439. When the High Court
has powers to entertain applications under Section 438 and 439 and
exercise their discretion, the power or the jurisdiction to impose such
a salutary rule is inherent in such powers itself. It is not necessary
to trace such power outside such discretion or under the relevant
rules.

31. I do not find merit in the submission that the question must
be referred to a Division Bench for its decision. The decision reported
in Babu Premarajan v. Supdt. Of Police (2000(3) K.L.T. 177) does not at
all mandate that a single Judge who has powers under the relevant
provisions of the Kerala High Court Act must refer the matter to a
Division Bench for decision even if the question raised be one which is
important very important or one of public importance. I do not find any
reason therefore to adjourn the matter for hearing by a Division Bench.
Certainly if necessary the matter will have to be considered by a
Division Bench/Larger Bench later.

32. I now come back to the precedents cited at the bar. Two
rulings of the Full Bench of this court have first been cited. The
earlier one reported in S. Narayanan v. Kannamma Bhargavi (1968 K.L.T.
495 (FB) does not at all support the contention that such self imposed
restriction cannot be made. In fact the said decision stems from the
fact that the revisional powers available under the former Crl.
Procedure Code to the court of Session and the High Court in the matter
of revision are not really concurrent-joint and equal in authority.
The operative portion of the said decision clearly shows that in
respect of matters where concurrent jurisdiction is available such a
rule can be imposed. I extract below the relevant operative portion.

"We are of the view that it would be improper to compel a party
having a strong case in his favour under S. 439 of the Code, to
approach first the Sessions Judge of the District Magistrate. He should
not be compelled to do so except in cases where the Sessions Judge or
the District Magistrate is capable of passing effective orders as in a
case of discharge or dismissal of complaint. In all other revisional
matters the aggrieved party may approach this Court direct if so
inclined...."

33. The next Full Bench ruling reported in Sivan Pillai v.
Rajamohan &Ors (1978 K.L.T. 223 (FB)) was rendered taking into account
Section 399(3) Crl. P.C. which mandates that though both courts are
vested with concurrent jurisdiction one cannot exercise such
jurisdiction if the other has already exercised such jurisdiction. The
Court had in the said decision certainly accepted the rule of salutary
practice requiring the party to resort to the lower forum before moving
the higher one so long as the two for a are available for resort. In
the instant case, it is by now trite, that the petitioner/accused will
be at liberty to move the High Court even after he has unsuccessfully
sought relief from the court of Sessions. The reason which prompted the
Full Bench to hold that such a rule of restriction need not be imposed
in the matter of revisions after the 1973 amendment, is therefore not
available in this case.

34. In the decision reported in M. Zacharia v. State of Kerala
(1974 K.L.T. 42) a division Bench of this court has certainly accepted
the principle that in respect of bail applications 'frog leaping'
cannot be permitted and the party is obliged to move the
Magistrate/Sessions Court before coming to the High Court. Of course
the fact scenario was slightly different as the petitioner in that case
had chosen to surrender before the High Court even before appearing
before the Magistrate/Court of Sessions. But that distinction in facts
is not very crucial while considering the dictum laid down. It is very
clearly held in the said decision that a petitioner/claimant cannot be
allowed "to frog leap the Magistrate and Sessions Judge and make a
direct approach to the High Court for bail". The decision in 1974
K.L.T. 42 still holds the field and this court is bound by the same.

35. Reference has been made to decisions rendered by other
courts. Though the counsel were specifically requested to research, no
other binding precedent of the Supreme Court or this court (other than
1974 K.L.T. 42) having a direct bearing on the question has been
traced. There are conflict of views among other High Courts. The
Rajasthan High Court in Hajialisher v. State of Rajasthan (1976 Crl.
L.J. 1658), the Punjab and Haryana High Court in Rajpal Singh v. State
of Haryana (1978 Crl. L.J. 608) the Bombay High Court in Jagannath v.
State of Maharashtra (1981 Crl. L.J. 1808), Karnataka High Court in
1985 Crl. L.J. 214=Iyya v.State of Karnataka (1983(2) Kar. L.J.8) have
held that such a rule of self imposed restriction is perfectly
justified while exercising the discretion under Section 438 and 439
Crl.P.C.

36. The contra view has been taken by a Full Bench of the
Allahabad High Court in Onkar Nath v. State (1976 Crl. L.J. 1142). I
have gone through the said decision in detail. All that the Full Bench
of the High Court of Allahabad disapproved was a rigid imposition of
the rule. A reading of the entire decision clearly shows that their
Lordships did approve of the salutary rule of procedure obliging the
Sessions Court having concurrent jurisdiction considering the exercise
of discretion first before the High Court is called upon to exercise
such jurisdiction. My attention has also been drawn to a detailed
judgment rendered by a Division Bench of the Andhra Pradesh High Court
reported in Y. Chendrasekhara Rao v. Y.V. Kamala Kumari (1993 Crl.L.J.
3508) as also the decision of the Himachal Pradesh High Court (Full
Bench) reported in Mohanlal v. prem Chand (AIR 1980 HP 36). These also
according to me do not at all lay down that such a self imposed
restriction should not be placed in the matter of exercise of
discretion u/s 438 and 439 Crl. P.C. The Andra Pradesh High Court was
considering the practice of the registry refusing to send up petitions
to the Bench. That of course is improper. No one can perhaps dispute
the fact that the High Court retains its jurisdiction to entertain an
application under Section 438 and 439 Crl. P.C. That discretion cannot
certainly be surrendered to the Registry. It has to be exercised by the
court. 1973 Crl. L.J. 3508 and AIR 1980 HP 36 can only be understood to
mean that the Judges are obliged to consider request for grant of
anticipatory bail even when the High Court is moved without and before
moving the Court of Session. That is far from saying that ordinarily
and unless exceptional reasons exist the High Court would exercise such
discretion if and only after the Sessions Court having concurrent
jurisdiction is moved earlier. At any rate I prefer to accept the
former view.

37. After an anxious consideration of all the relevant precedents
and statutory provisions I am of opinion that the following conclusions
emerge:-

1. There is absolutely no want of jurisdictional competence for
the High Court to consider and exercise powers in an application for
bail/anticipatory bail under Section 438/439 Crl. P.C. at the first
instance. It can exercise such jurisdiction even if the Sessions Court
were not called upon earlier to exercise such jurisdiction.

2. Following the salutary procedural self imposed rule of
restriction, a High Court shall not ordinarily, (and except under
exceptional circumstances) exercise its powers under Section 438 and
439 Crl. P.C. without and before the Sessions Court having concurrent
jurisdiction is moved for identical relief.

3. Needless to say the High Court must be very careful and
circumspect in identifying such exceptional cases. Myriad are the facts
scenarios and the real life situations possible. The High Court should
not refuse to invoke its powers/discretion under Section 438 and 439
merely because the Court of Session has not been moved if circumstances
warrant the exercise of such powers in the interests of justice and in
the interests of the sacro sanct right to liberty of the individual.
Without intending to be exhaustive I may mention that the need to
settle a question of law of general public importance, the need to
protect the interests of an accused apprehending arrest in more than
one Sessions Division within a State, the incompetence of the Sessions
Court to afford adequate and effective relief in a given case for
whatever reason, shall certainly bring the case within the class of
exceptional cases where this salutary rule will not apply. Other
exceptional circumstances if any which may be there, do not occur to me
now.

38. Having thus attempted to ascertain the law I shall consider
the facts of these cases specifically. I do not find any special or
sufficient reasons in the facts and circumstances revealed in Crl. M.C.
3265 and 3391 of 2003 which can bring the cases within the category of
exceptional cases where the salutary rule should not apply in the
interests of justice. When requested pointedly to bring to my notice
exceptional reasons if any the counsel do not strain to contend that
such exceptional reasons exist. It is in theses circumstances not
necessary to advert to the facts in greater detail in this common
order.

39. I place on record my appreciation for the assistance tendered
to this Court by various counsel including the counsel appearing for
the petitioners in these petitions and the learned Public Prosecutor to
resolve the controversy.

40. In the result these petitions are dismissed and the following
directions are issued:-

i. Applications under Section 438 and 439 Crl. P.C. shall
hereafter be numbered by the Registry of this Court only when it is
accompanied by the copy of the order of the Sessions Court (or
memo/petition as indicated in clause (ii) below).

ii. If it is not accompanied by copy of the order, such
applications must be accompanied by a petition/memo explaining why copy
is not produced or why the Session Court had not been moved earlier.
The application shall be numbered by the Registry only after the court
in its discretion by order passed in such memo/petition directs such
reception/numbering.

iii. Every application for bail/anticipatory bail must be
disposed of by the respective subordinate courts in the State on the
date of receipt of the application itself ideally if moved with
sufficient print notice to the Prosecutor. At any rate all courts
including the Sessions Courts shall scrupulously ensure that bail
applications are disposed of within the outer limit of three working
days of their filing without fail.

iv. The Director General of Police shall ensure that a competent
police officer is posted in every District to assist the District
Public Prosecutor to liaison between the police and the Prosecutor and
to ensure that relevant records and instructions are given to the
Prosecutor promptly. Similarly every police station shall also depute a
competent official to assist the Public Prosecutor in charge at the
court having local jurisdiction.

v. Copies of orders in every bail application (whether regular or
anticipatory) shall be furnished to the accused/counsel free of cost
and acknowledgment obtained from the respective counsel/accused (one in
each application irrespective of the number of petitioners) immediately
after pronouncement of orders on the same day as mandated in the case
of judgments in Section 363(1) Crl. P.C It shall be the duty of the
Presiding Officer of the court to ensure this.

41. The Registry shall ensure that the directions above are
complied with and communicated to all the criminal courts and the
officers concerned.

Reply all
Reply to author
Forward
0 new messages