Jammu & Kashmir High Court
Zubair Ahmad Bhat vs State Of Jammu And Kashmir on 3 May, 1989
Equivalent citations: 1990CRILJ103
ORDER M.L. Bhat, J.
1. Learned counsel for the respondent, Mr. Riaz Rasool has raised an objection to the maintainability of this application. His submission is that the petitioner has moved for anticipatory bail before the 2nd Addl. Sessions Judge, Srinagar. That bail application was rejected. He cannot move a fresh bail application on the same grounds under Section 497-A, Cr.P.C. to this court. Reliance is placed on Amiya Kumar v. State of West Bengal reported in 1979 Cri LJ 288. The Division Bench of the Calcutta High Court has dealt with this question and it was held that anticipatory bail can be granted by the High Court or the Sessions Court and the choice is given to the person who seeks bail in anticipation of arrest. Once a person applies to Sessions Court and the Sessions Court rejects the application fresh application for grant of bail in anticipation cannot be moved before the High Court on the same grounds.
2. Mr. H. M. Sadiq has controverted this position and has referred to a Full Bench authority of Himachal Pradesh in Mohan Lal v. Prem Chand, AIR 1980 Him Pra 36. The Full Bench was answering the reference and the question referred to the Full Bench was :
"Is it incumbent upon an applicant to approach the Court of Session before moving the High Court for grant of anticipatory bail under Section 438 of the Central Cr. Procedure Code."
While answering this question the Full Bench has taken into consideration the provisions of Section 397, Cr.P.C. which correspond to Section 435 of our Code and they have answered that it is not incumbent on the person to move the Sessions Court first. He can directly move the High Court. This had become necessary because in an earlier authority of the same High Court titled Joginder Singh v. State of H. P., ILR (1975) Him Pra 181, the Division Bench had taken a view that a bail application for grant of anticipatory bail cannot be moved directly before the High Court without first moving the Sessions Court. The view expressed by the Division Bench obviously was not in conformity with the provisions of law because for grant of anticipatory bail Sessions Court and the High Court have concurrent jurisdiction. In that context the Full Bench has said that it is not necessary for a person to move the Sessions Court first and that he cannot come directly to the High Court for grant of anticipatory bail. The Full Bench authority referred to above is not authority for the proposition that once the anticipatory bail is rejected by the Sessions Court on the same grounds High Court can be moved for grant of anticipatory bail. In the observations made by the Full Bench, there may be a passing reference, but that is only obiter because the Full Bench was not considering that question at all. The limited question before the Himachal Pradesh High Court was whether it was necessary to approach the Sessions Court before moving the High Court for grant of anticipatory bail and that question is answered in the negative by the Full Bench.
3. The opinion expressed by the Calcutta High Court (1979 Cri LJ 288) (supra) referred by Mr. Riaz Rasool is correct and they appear to have laid down the correctly. Therefore, the application under Section 497A for grant of anticipatory bail when the first application on the similar grounds was rejected by the Sessions Court will not be maintainable because the court of Sessions and the High Court have concurrent jurisdiction in the matter.
4. However, the matter would not rest here. If the Sessions Court has refused the bail, High Court in revision against the refusal of bail is not powerless because Sub-section 3 of Section 397, Cr.P.C. as amended in the Central Act does not apply to the State of J. & K. nor is a similar provision contained in our Code which has taken away the power of revision of this Court in such matters nor is an order recorded by the Sessions Judge to be treated as final and beyond the purview of judicial scrutiny of this court. Therefore, the petitioner is well within his power to file a revision petition against the order rejecting the bail in anticipation. Such an order would not be interlocutory because it seeks to take away the liberty of a man and he is to be arrested. Therefore, it affects his rights. Reliance is placed on Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 : (1978 Cri LJ 165) for this proposition.
5. At this stage Mr. Hakim Sadiq submits that the petition filed by him under Section 497A, Cr.P.C. be treated as revision petition. 1 order accordingly Registry shall list it as revision petition. Issue notice M/s. Riaz Rasool and N. A. Hakak accept notice. Send for the record of the trial Court. List after the record is recieved. List next week.