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Report No 203

6.4 Note on Concurrent Jurisdiction:

6.4.1 One of the objections raised against the amended section has been that if the applicant seeking anticipatory bail is required to be compulsorily present in the Court in terms of new sub-section (1B), he is most likely to be arrested from the Court precincts in the event of rejection of his bail. Such an arrest of the applicant will deprive him of his right otherwise available to him to move the alternative forum provided in Section 438 of the Code. Concurrent jurisdiction of the Court of Session and the High Court under Section 438 has generated much litigation.

The Code has not prescribed any specific order in which the two alternative forums are to be approached. It is left to the option of the applicant to move either the Court of Session or the High Court for anticipatory bail one after another or in reverse order. There is conflict of opinion amongst various High Courts as to whether the Court of Session should originally be approached in the first instance or the High Court can be straightaway approached for grant of anticipatory bail without first taking recourse to the Court of Session.

It may be noted that both Court of Session and the High Court exercised original jurisdiction under Section 438. However, when the High Court is moved after the anticipatory bail application has been dismissed by the Court of Session, the petition for anticipatory bail in the High Court is required to be accompanied with a copy the Session Court's order from which reason for dismissal of anticipatory bail application can be gathered.

In such a case, the High Court essentially exercises revisionary powers over the order of the Court of first instance. i.e. Session Court though purporting to be exercising original jurisdiction under Section 438. On the other hand, it has been held in some cases that where the applicant moved High Court for anticipatory bail which was rejected then the Court of Session should not grant anticipatory bail to the applicant on the same facts and material as otherwise it would be an act of judicial impropriety.

There are also cases where similar view has been taken in reverse order in respect of rejection of application for anticipatory bail by Court of Session. Accordingly, it has been held in some cases that if an application for anticipatory bail is rejected by the Court of Session, then similar application on the same fact would not lie in the High Court unless there is some new material or facts. There are cases also where contrary view has been taken whereby no such fetter is admitted on the powers of the High Court.

6.4.2 It will be useful to refer to some of these cases for better appreciation.

6.4.3 In Onkar Nath Agrawal and others v. State 1976 Cri. L.J. 1142, the Full Bench of Allahabad High Court held that Section 438 "clearly contemplates two forums for moving an application for anticipatory bail, namely the Court of Session and the High Court. Both the jurisdictions are concurrent and it is left for the person to choose either of the two. The provision read as a whole does not prima facie create any bar that he must apply to the Court of Session first before coming to the High Court to seek his redress. Thus, a bail application under Section 438 may be moved in the High Court without the applicant taking recourse to the Court of Session."

6.4.4 In Y. Chendrasekhara Rao v. Y.V. Kamala Kumari, 1993 Cri. L.J. 3508, the Division Bench of Andhra Pradesh High Court held that an application for anticipatory bail was maintainable in the High Court without the party approaching the Court of Session in the first instance. The Court did not find any justification for the registry to return the papers on the ground that the applications in the first instance were not maintainable in the High Court under Section 438. The Court observed:

"The provision clearly implies that not only concurrent power is conferred on the High Court and the Court of Session but choice is given to the affected person to move either of the two fora if the party who intends to move an application under Section 438 feels that moving the Court of Session is more convenient, he may do so. But if he thinks that approaching the High Court is more convenient and less time-consuming, he shall not be precluded from doing so.

Situations may conceivably arise when a person may find it more efficacious to approach the High Court under Section 438. A resident of Srikakulam or Visakhapatnam, if apprehends arrest when he is in Hyderabad, may find it more convenient to move the High Court under Section 438 for anticipatory bail without any loss of time instead of moving the Court of Session of his native district. It is not possible to visualize comprehensively what precise reasons impel persons to invoke jurisdiction of the High Court, in the first instance, under Section 438.

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 to move the High Court, in the first instance, clearly amounts to violation of the guaranteed fundamental right under Article 21 of the Constitution of India".

6.4.5 In Devidas Raghu Naik v. State, 1989 Cri. L.J. 252, a Single Judge of Bombay High Court held "that in view of the concurrent jurisdiction given to the High Court and Session Court, the fact that the Session Court has refused a bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence. However, if the choice was made by the party to move first the High court and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Session Court is moved with a similar application on the facts, the said application be dismissed."

6.4.6 In Jagannath v. State of Maharashtra, 1981 Cri. L.J. 1808, the Bombay High Court held that "the Session Court and the High Court have the concurrent jurisdiction in the matter of grant of anticipatory bail." Referring to Section 397(3) of the new Code providing that if one Court was moved in its revisional jurisdiction, the other Court shall not entertain similar application, the Court stated that "nothing prevented Parliament from putting a similar bar in the provisions relating to bail - either pre-arrest or post-arrest - and this indicates that what was intended was exercise of concurrent jurisdiction by Court of Session and High Court in the matter of grant of bail."

6.4.7 In Amiya Kumar v. State of West Bengal, 1979 Cri. L.J. 288, a Division Bench of Calcutta High Court held that "Section 438 has given a choice of selecting the forum for filing the petition for anticipatory bail - to choose either the High Court or the Court of Session though both the Courts have been made forums for the approach of the applicant. This section gives right to the party with restricted choice.

Two Courts are empowered to grant bail under Section 438, namely, the High Court and the Court of Session, but the petitioner may choose one of the two Courts and apply to the court of his choice. We cannot hold that if the petitioner approaches the Court of Session for the relief under Section 438 and if his prayer is rejected, he will be again entitled to approach the High Court for the same relief on the same ground under that Section."

6.4.8 However, a three member's Bench of the same High Court did not agree with this view in Diptendu Nayak and others v. The State of West Bengal, 1989(1) Crimes 435 (Calcutta) wherein it was held that the bail application under Section 438 Cr.P.C. might be moved to the High Court after the applicant had not succeeded before the Court of Session.

6.4.9 Similar views were expressed by Delhi High Court in Arun Madan v. State, 1993(1) Crimes 599: 1993 Cri. L.J. 1493 wherein it was held that "a person after unsuccessfully moving the Court of Session for anticipatory bail under Section 438 of the Code of Criminal Procedure can again approach the High Court for the same purpose under the same section."

6.4.10 In Mohan Lal and others etc. v. Prem Chand and others, AIR 1980 Himachal Pradesh 36, the Full Bench of the High Court held that "a person can apply for anticipatory bail to the High Court direct without first invoking the jurisdiction of the Session Judge."

6.4.11 In K.C. Iyya v. State of Karnataka, 1985 Cri. L.J. 214, it was ruled that: "Since both the Courts, the Court of Session and the High Court have concurrent powers in the matter of grant of anticipatory bail under Section 438 of the Criminal P.C., a person seeking anticipatory bail under Section 438 should approach the Court of Session in the first instance as this would 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 the High Court at the first instance. If the reasons assigned by him to approach the High Court at the first instance are found genuine, such an application may be considered by the High Court."

6.4.12 In Smt. Manisha Neema v. State of Madhya Pradesh, 2003 (2) Crimes 402, the High Court expressed the opinion that the applicant should have filed the application at the first instance before the Court of Session and thereafter, if it was rejected, he could have approached the High Court.

In reaching this conclusion, the Madhya Pradesh High Court relied on one of its earlier judgments in the case of Dainy alias Raju v. State of MP, 1989 JLJ 232 wherein Hon'ble Justice R.C. Lahoti (later on the Judge of the Supreme Court and Hon'ble Chief Justice of India) has held that though under Sections 438 and 439 of the Cr.P.C. there is concurrent jurisdiction, but the application should be filed first before the Court of Sessions and on failure before that Court, the application should be filed before the High Court accompanied with the first order of Sessions Court and also mentioning all the relevant facts. His Lordship, in paras 19, 20 and 21 has given detailed reasons for holding so. For convenience, the same are reproduced below:-

"19. The jurisdiction of High Court and Court of Session under Section 439, Cr.P.C. being concurrent, as a matter of practice, the bail applicants are required ordinarily to approach the Court of Sessions in the first instance and if relief is denied they approach the High Court u/s 439, Cr.P.C. itself, not as a superior Court sitting in appellate or revisional jurisdiction over the order of the Court of Sessions, but because the superior Court can still exercise its own jurisdiction independently, unaffected by the result of exercise by the Court of Session because the latter is an inferior Court though vested with concurrent jurisdiction.

The application seeking bail before the High Court is accompanied by an order of the Court of Session rejecting a similar prayer. The idea is to provide the superior Court with an advantage of apprising itself with the grounds as considerations which prevailed with the Court of Session in taking the view which it did. It has come to my notice in several cases that the first order of the Court of Session rejecting a prayer for bail is a detailed order and when another application is repeated before the same Court, the subsequent order rejects the application simply by stating that earlier application having been rejected on merits, the Court did not see any reason to take a different view of the matter.

The latter order is not a detailed one. This subsequent order is filed before the High Court to fulfil the formality but the inevitable consequence is that the High Court is deprived of the opportunity of apprising itself with the reasons which formed foundation for rejection of the prayer by the Sessions Court. The possibility cannot be ruled out that such a course is adopted purposely because the bailapplicant does not feel comfortable before the High Court in the presence of a detailed order of the Court of Session rejecting the prayer for bail.

20. To sum up the disciplines of the system are:

(i) In view of the decision of the Apex Court in Shahzad Hssan Khan (supra), a subsequent application for bail in the same jurisdiction, must be placed before the same Judge (so long as he is available) before whom had come up the earlier application, with whatever result;

(ii) a subsequent application for bail must mention all the earlier or pending attempt to that and made before the High Court as well as the Court of Sessions along with their fate;

(iii) while moving an application for bail before the High Court, the application ought ordinarily to be accompanied by the order of the Court of Session rejecting the first prayer for bail and containing reasons, unless dispensed with;

(iv) a bail petition is expected to incorporate a statement as to all facts and circumstances considered relevant by the applicant in support of his prayer so that whatever is put forth before the Court does not vanish in thin air, but is retained in the record, though there is no format prescribed for bail applications; if any statement is likely to be controverted by the opposite party, the party would do well to support its statement by an affidavit or documents, as advised.

21. A question may be posed whether these requirements falling within the domain of format or procedural requirements only, laying down rules of discipline only can be treated so imperative as to override the substantive law of bails, negativing the right or privilege for failure of compliance therewith. The requirements have a laudiable purpose, principle and policy behind. They have been projected by judicial wisdom founded on judicial experience. The rightful result must be achieved by rightful means.

That is the rule of law. If bifocul interests of justice to the individual involved and the society affected (as spoken of in Babusingh and others, supra), are to be secured, if fallacies as to bail jurisdiction are to be removed: if fairness in dispensation of criminal justice has to be retained, nay brightened, if abuse of process of law is to be avoided, and if unwanted practice/tactics are to be curbed: these rules of discipline have to be treated as imperative. A failure to observe them may be destructive of the very purpose sought to be achieved."

6.4.13 In Chhajju Ram Godara and others v. State of Haryana, 1978 Cr. L.J. 608 (Punjab & Haryana), it was held that "Section 438 of the Cr. P.C. gives concurrent powers of granting anticipatory bail both to the High Court and the Court of Session. As in other analogous provision in the Code, it is normally to be presumed that the Court of Session would be first approached for the grant thereof unless an adequate case for not approaching the said court has been made out."

6.4.14 In Hajialisher v. State of Rajasthan, 1976 Cri. L.J. 1658, the High Court observed that although the High Court has concurrent jurisdiction with the Session Court to grant bail under either of the aforesaid two Sections, viz. Sections 438 and 439, it is desirable that the ordinary practice should be that the lower court should be first moved in the matter, though in exceptional cases or special circumstances, the High Court may entertain and decide an application for bail either under Section 438 or Section 439, Cr. P.C.

This is specially important because any expression of opinion by the superior court is likely to prejudice, if not frequently, in cases few and far between, the trial in the lower court. On proof of special circumstances the High Court would certainly entertain an application under Section 439 and decide it on merits. But, for that reason, an accused person cannot claim as a matter or right to get such an application decided in the first instance by the High Court."



Section 438 of the Code of Criminal Procedure, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 2005 - Anticipatory Bail Back




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