Madhya Pradesh High Court
Smt. Priya Agrawal @ Shubhlata Agrawal vs The State Of Madhya Pradesh on 9 January, 2012
(1)
HIGH COURT OF MADHYA PRADESH : JABALPUR
M.Cr.C. No. 14504/2011
Smt. Priya Agrawal @ Shubhlata Agrawal
and others
Vs.
State of M.P.
As Per : G.S.Solanki, J.
Shri T.S.Ruprah, Sr. Counsel with Shri Harmeet Ruprah
for the applicants.
Shri Akshay Namdeo, PL for the State.
Shri H.S.Dubey, Advocate for the objector.
Order reserved on : 3.1.2012
Order passed on : 9.1.2012
ORDER
1. The applicants are apprehending their arrest in connection with Crime No. 197/2011 registered at P.S. Civil Lines, District Sagar for the offence punishable under sections 406, 420/34 of IPC, therefore, they preferred this application under section 438 of Cr.P.C. for grant of anticipatory bail directly before this Court without approaching the Court of Session at the first instance.
2. On 29.12.2011, when this matter was listed before the coordinate Bench of this Court, this Court made a query whether without exhausting the remedy before the Sessions Court, having the lowest jurisdiction over the matter, this petition could be entertained directly by this (2) Court ? Learned counsel for the applicants sought time to argue on this point.
3. Learned counsel for the applicants submits that Section 438 of Cr.P.C. provides concurrent jurisdiction and therefore, it is the choice of the applicants to approach either of the Court. The applicants are resident of Jhansi (U.P.) and husband and in-laws of applicant No. 1 are big businessman of Sagar, they are influential persons and have good connections in the government as well as in the Police Department, therefore, it is not at all safe for the applicants to go to Sagar and apply for anticipatory bail, thus, they directly approached this Court. Learned Sr. counsel has placed reliance on the decision in Y. Chendrasekhara Rao and others Vs. Y.V. Kamala Kumari and others - 1993 Cri.L.J. 3508(1) and Balan Vs. State of Kerala - 2004 Cri.L.J. 3427.
4. Learned counsel appearing for the State and objector have opposed the contentions raised by the learned counsel for the applicants and submitted that view of this Court is consistent since 1989 till today in regard to concurrent jurisdiction of the Court of Session and High Court, that though High Court has concurrent jurisdiction with the Court of Session under sections 438 and 439 of Cr.P.C. yet applicant should have approached the Court of Session at the first instance. Counsel have placed reliance on the decisions of this Court in Daini @ Raju Vs. State (3) of M.P. - 1989 JLJ 323; and Smt. Manisha Neema Vs. State of M.P. - 2003 (2) MPHT 303 in which the principle laid down by the Apex Court in Gurcharan Singh and others Vs. State (Delhi Administration)- AIR 1978 SC 179 have been followed.
5. I have gone through the decisions of Andhra Pradesh High Court in Y. Chendrasekhara Rao and others Vs. Y.V. Kamala Kumari and others (supra) and Kerala High Court in and Balan Vs. State of Kerala (supra), in which it has been held that the application filed under section 438 of Cr.P.C. cannot be returned to the applicant because the he did not move at the first instant to the Sessions Court, if such application is returned, that is illegal and violative of Article 21 of the Constitution of India. In the aforesaid judgments of Andhra Pradesh High Court and Kerala High Court, the judgment passed by this Court in Daini @ Raju Vs. State of M.P. (supra) has not been referred and considered, though so many judgments of other High Courts have been considered.
6. I have also gone though the decisions of this Court in Daini @ Raju Vs. State of M.P. (supra) and Smt. Manisha Neema Vs. State of M.P. (supra) and the decision of Apex Court in Gurcharan Singh and others Vs. State (Delhi Administration) (supra). The view of this Court has been consistent since 1989 till today that though the High Court has concurrent jurisdiction with the Court of (4) Sessions under section 438 of Cr.P.C. yet the applicant should approach the Sessions Court at the first instance, which would examine the facts and pass the suitable order and may be in that case petitioner was not required to apply before this Court.
7. The applicants pleaded their apprehension that they are not safe to go to Sagar but the aforesaid apprehension has no basis. It may be possible that husband and in-laws of applicant No. 1 are the big businessman of Sagar and they are influential persons, but it cannot be said that they own the government and the Police Department. It is also not necessary to personally appear before the Sessions Court to pursue the application under section 438 of Cr.P.C.
8. In view of the aforesaid decisions of Apex Court and this Court, I am of the view that the application under section 438 of Cr.P.C. should have been filed by the applicants at the first instance before the Sessions Court at Sagar and thereafter, in case necessity arises, the applicants are free to approach this Court.
9. Thus, this application is disposed of with liberty to the applicants to file application under section 438 of Cr.P.C. before the Sessions Court concerned and if such application is filed, the concerned Sessions Court expected to decide the same expeditiously as far as possible within one week from the date of filing of the (5) aforesaid application. However, it is made clear that this Court has not expressed any view on the merits of the case and the Sessions Court is free to decide the matter on its merits.
10. This application is disposed of with the aforesaid observations.
(G.S.Solanki) Judge PB