Gujarat High Court
Bhimshi Rambhai Gojiya vs State Of Gujarat & on 22 January, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/20757/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 20757 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BHIMSHI RAMBHAI GOJIYA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
MR KP RAWAL, APP for the Respondent(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/01/2015
ORAL JUDGMENT
This is an application under Section 439 of the Code of Criminal Procedure, 1973 (for short, 'the Code') filed by an Page 1 of 20 R/CR.MA/20757/2014 JUDGMENT under-trial accused through jail, arrested in connection with the I-CR No.82 of 2012 registered at the Jamnagar city B- Division Police Station, of the offence punishable under Sections 376, 363 of the Indian Penal Code and Section 3(2) of the Atrocity Act.
It appears from the materials on record that the accused was arrested on 31st August 2012. On completion of the investigation, the charge-sheet was filed and the case was committed to the Court of the learned Special Judge at Jamnagar which came to be registered as the Special Atrocity Case No.23 of 2012. It appears that the accused is in custody as an under-trial prisoner past two years and two months.
In his application dated 15th November 2014 forwarded to this Court through the Jailor of the Jamnagar District Jail, he has prayed that his right of speedy trial has been infringed as there has been no progress in the trial. He has also tried to make out few grounds on merits, more particularly, the defence of consent of the prosecutrix. In his application, he has stated that he was in love with the girl, and even as on today, the girl is ready and willing to get married to him, however, her parents are highly opposed to such relations. It also appears from the materials on record that the victim, after the incident, got married to a boy named Sunil Rana, a resident of village Ranavav. It also appears that the applicant is a married person and a father of two minor children. It has been further stated that he was earlier ordered to be released on bail, but it appears that the bail was cancelled by the High Court.
Mr.K.P.Rawal, the learned APP appearing on behalf of the Page 2 of 20 R/CR.MA/20757/2014 JUDGMENT State has raised a preliminary objection as regards the maintainability of this bail application filed by an under-trial accused through jail directly before this Court. The objection is raised in the wake of an order passed by a learned Single Judge of this Court (Coram: K.J.Thaker, J.) dated 1 st January 2015 in Criminal Misc. Application No.21912 of 2014 filed by one Pramod Narhari Manjrekar.
It appears that the said Pramod Narhari Manjrekar, an under-trial prisoner, was ordered to be released on temporary bail by this Court. He prayed for extension of the temporary bail. While deciding the application for extension of temporary bail, the learned Judge passed the following order :
"1. This is an application for temporary bail by the applicant, who is an under-trial prisoner, whose date of arrest is shown to be 23.12.2011. The applicant has been arrested in connection with a heinous offence punishable under the provisions of the N.D.P.S. Act. My learned Brother Judge had, earlier, shown discretion in the matter by entertaining and granting the same vide order dated 24.12.2014 passed in Criminal Misc. Application No.21539 of 2014, though, the applicant is an under-trial prisoner and he had not moved the Court of the competent jurisdiction.
2. It, now, appears that the discretion, which was exercised earlier, is sought to be asked as of a right. It is, therefore, CLARIFIED that from now onwards all the UNDER-TRIAL prisoners shall send their applications to the concerned / competent Court DIRECTLY, instead of filing such applications before this Court under Section 439 of the Cr.P.C..
3. So far as the present application is concerned, same lacks merit and deserves dismissal. The applicant, herein, has not moved the Court of competent jurisdiction before approaching this Court. This Court has already shown leniency and granted temporary bail to the applicant for a period of eight days, in view of the Page 3 of 20 R/CR.MA/20757/2014 JUDGMENT peculiar facts and circumstances of the case and same does not deserve extension.
4. In the result, this application fails and is DISMISSED.
5. Registry is DIRECTED to send a copy of this order to all the Jail Authorities and the Session Courts through concerned Sessions Judges within the State of Gujarat, for their follow-up, necessary actions."
Thus, the plain reading of the order passed by the learned Single Judge of this Court referred to above would suggest that His Lordship has taken the view that any bail application filed by an under-trial accused under Section 439 of the Code through jail directly before this Court should not be entertained unless and until the same is first filed and dealt with by the trial Court. It also appears that the registry has been directed to forward a copy of the order to all the jail authorities and the sessions courts through the concerned sessions judges within the State of Gujarat in that regard.
Placing strong reliance on the order dated 1 st January 2015, Mr.Rawal, the learned APP, submits that this application should not be entertained and liberty may be reserved for the applicant to file an appropriate application, praying for bail first before the trial Court, and if, ultimately, the trial Court rejects the application, then he may file an application thereafter before this Court.
Having heard the learned APP appearing for the State and having gone through the materials on record, the only question that falls for my consideration is, whether the learned Single Judge of this Court could have issued such directions, the effect thereof would be to take away the right of an under-
Page 4 of 20R/CR.MA/20757/2014 JUDGMENT trial accused to apply for bail under Section 439 of the Code directly before the High Court through jail.
I am conscious of the fact that sitting in a co-ordinate Bench I am otherwise duty-bound to follow the order passed by a learned Single Judge. However, with profound respect, I am unable to subscribe to the view taken by His Lordship, more particularly, considering the directions issued to the registry of this Court.
Ordinarily, if a learned Single Judge wants to differ with the view taken by another Single Judge, then the judicial decorum and propriety demands that the matter should be referred to a Division Bench for its consideration of the issue. However, in the present case, it appears that the attention of His Lordship was not drawn to a binding precedent of a Division Bench of this High Court in the case of Rameshbhai Lallubhai Luni v. Devraj Bhalabhai and others, reported in 1987(2) GLH 543. The view taken by His Lordship in the order dated 1st January 2015 is in direct conflict with the principle of law explained by the Division Bench in the case of Rameshbhai Lallubhai Luni (supra). In such circumstances, the order dated 1st January 2015 is rendered per incurium.
Section 439 of the Code reads thus :
"439. (1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;Page 5 of 20
R/CR.MA/20757/2014 JUDGMENT
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified;
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not to triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
Section 439 indicates a special power being vested with the High Court or Court of Sessions regarding the bail. It provides for release of an accused on bail with conditions which are considered necessary for the purposes mentioned in that sub-section. A bare reading of the section shows that the concurrent jurisdiction has been conferred on the two courts, one, superior and the other, inferior. If we go by the plain reading of the section, a person is not required to move the Sessions Judge first. It is ultimately for the High Court to decide, whether in the facts and circumstances of the case the bail application, whether regular or temporary, filed by an under-trial through jail should be entertained or, whether the accused should be first asked to approach the Sessions Court. However, to give a mandate to all the jail authorities that the under-trial accused, if they want to pray for bail, regular or temporary, should first file their applications before the Sessions Court, and only thereafter, before the High Court, would be nothing but thereby depriving a person of his right to Page 6 of 20 R/CR.MA/20757/2014 JUDGMENT file a bail application when the Legislature itself has thought fit to confer concurrent jurisdiction on both the Courts. There could be various reasons a person may like to move the High Court straightway and may not like to approach the Sessions Court. The convenience of an accused who prays for bail sitting in jail is also a factor which needs to be considered in its true perspective. Ordinarily, when an accused files a bail application either praying for regular bail or temporary bail through jail, it would suggest that he is not able to avail of the services of an advocate and that could be due to many reasons like financial problems, etc. A Division Bench of this Court in the case of Rameshbhai Lallubhai Luni (supra) had the occasion to consider almost an identical issue. The Division Bench was called upon to answer a reference made by a learned Single Judge. Before the learned Single Judge, a question was raised, whether the application for cancellation of bail which was made directly before the High Court without first approaching the Sessions Judge was maintainable or not. The question which fell for the consideration of the Division Bench was, whether a person seeking cancellation of a bail order made by a Judicial Magistrate, can directly approach the High Court under Section 439(2) of the Code or he should first approach the concerned Sessions Judge and can approach the High Court only thereafter if he was aggrieved by the order of the Sessions Judge. While answering the reference, the Division Bench considered the entire Section 439 of the Code. The Division Bench considered the most important aspect that Section 439 conferred concurrent jurisdiction upon the High Court as well as the Sessions Court. Although the issue before the Division Page 7 of 20 R/CR.MA/20757/2014 JUDGMENT Bench was one of cancellation of bail, yet the analogy of the same is directly applicable in the present case. I may quote the relevant paragraphs of the judgment rendered by the Division Bench of this Court :
"5. In effect, the question which falls for consideration by, and the decision of, the Division Bench is whether a person seeking cancellation of a bail order made by a Judicial Magistrate, can directly approach the High Court under Section 439(2) of the Criminal Procedure Code or he should first approach the concerned Sessions Judge and can approach the High Court only thereafter if he is aggrieved by the order of the Sessions Judge. In other words, the question is, whether, if a person seeking cancellation of a bail order approaches the High Court directly under Section 439(2) of the Criminal Procedure Code, without having recourse to the concerned Sessions Judge for the purpose, his application should entertained by the High Court or he should be asked first to approach the concerned Sessions Judge.
6. It is obvious that a reference should first be made to Section 439, and especially to Section 439(2), of the Criminal Procedure Code to resolve the aforesaid question.
7. Section 439 of the Criminal Procedure Code provides :
439. (1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 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 set aside or modified;
Provided that the High Court or the Court of Session Page 8 of 20 R/CR.MA/20757/2014 JUDGMENT shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not to triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
8. It is manifest on a plain reading of Section 439(2) of the Criminal Procedure Code that the jurisdiction to direct that any person, who has been released on bail under Chapter XXXIII of the Code, be arrested and committed to the custody, is vested both in the Court of Session and the High Court, even though the bail order may have been made by a Magistrate. Even a bare reading of the provision leaves no doubt as to the fact that the jurisdiction of the Court of Session and the High Court is a concurrent jurisdiction and there is nothing in the provision itself even remotely suggesting that the High Court cannot entertain an application for cancellation of bail under Section 439(2) of the Criminal Procedure Code directly, that is, without an approach having been first made to the Court of Session in that behalf. It is also not brought to our notice that a practice has grown in our High Court whereby an application for cancellation of bail is not directly entertained by the High Court and if somebody makes such an application directly to the High Court he is asked to approach the Sessions Court first or that such an application directly made to the High Court is transmitted down to the concerned Sessions Judge for hearing and disposal. In fact, we were told at the Bar that all along such applications for cancellation of bail are directly entertained by the High Court even though the bail order might have been made by a Judicial Magistrate.
9. Still, however, the question is whether there is anything in the decision of R.A. Mehta, J. in the case of Ramchandra Kashiram Vora v. State of Gujarat (supra) to show that there is any embargo on the power of the High Page 9 of 20 R/CR.MA/20757/2014 JUDGMENT Court in entertaining such an application directly or there is even a practice that such an application should not be entertained by the High Court directly. We find nothing in the decision of R.A. Mehta, J. to show or to suggest that an application for cancellation of bail under Section 439(2) of the Criminal Procedure Code cannot or should not be entertained directly by the High Court. The case before R.A. Mehta, J. was certainly not a case for cancellation of bail under Section 439(2) of the Criminal Procedure Code, but it was a case where anticipatory bail was sought from the High Court directly under Section 438 of the Criminal Procedure Code without first making an approach to the concerned Sessions Court. It is true that R.A. Mehta, J. has held that it would be sound exercise of Judicial discretion not to entertain each and every application for anticipatory bail directly, bypassing the Court of Session. This view of the learned single Judge is based on the convenience or inconvenience of the parties, and especially of the Public Prosecutor and the investing officer, because the Sessions Court is nearer to the accused persons and is easily accessible and even if an accused-person fails in getting an order for anticipatory bail from the Sessions Court, he has a further remedy to approach the High Court and, therefore, the practice of insisting upon the petitioners for anticipatory bail first approaching the Sessions Court will not prejudice them. It is said that it is only where there are special and exceptional circumstances to approach the High Court directly that High Court should entertain anticipatory bail applications directly without insisting upon the petitioners first approaching the Sessions Court.
10. It is thus clear that the view taken by R.A. Mehta, J. in the aforesaid case which would virtually discourage people from approaching the High Court directly was taken in respect of anticipatory bail applications under Section 438 of the Criminal Procedure Code and not in respect of applications for cancellation of bail under Section 439(2) of the Criminal Procedure Code.
11. It may, however, be said that the jurisdiction to grant anticipatory bail under Section 438 of the Criminal Procedure Code is also a concurrent jurisdiction vested Page 10 of 20 R/CR.MA/20757/2014 JUDGMENT both in the High Court and in the Sessions Court and, therefore, on analogy, the same view should be taken in respect of applications for cancellation of bail as has been taken by R.A. Mehta, J. in respect of anticipatory bail applications in the aforesaid case. Now, so far as Section 438 of the Criminal Procedure Code is concerned, its material part provides that 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 that action and that Court may, if it thinks fit, direct that, in the event of such arrest he shall be released on bail. It is thus clear that Section 438 of the Criminal Procedure Code also confers concurrent jurisdiction in the High Court and the Sessions Court to grant anticipatory bail. In fact it can be argued with some force that Section 438 of the Criminal Procedure Code confers on the applicant a right of choice of forum between the High Court and the Sessions Court inasmuch as it provides that the concerned person may apply to the High Court or the Court of Sessions. It may be said that despite this petition. R.A. Mehta, J. has taken the view that a person seeking anticipatory bail should ordinarily be made first to approach the Sessions Court. The view of R.A. Mehta, J. in the aforesaid case was challenged before us but we do not consider it necessary, for the purposes of deciding the question before us, to go into the correctness or otherwise of the said view. This is so, because, even assuming that the view of R.A. Mehta, J. in respect of anticipatory bail applications under Section 438 of the Criminal Procedure Code is correct, the analogy of that view cannot be applied to an application for cancellation of bail under Section 439(2) of the Criminal Procedure Code. The main factor which influenced R.A. Mehta, J. in taking the above view was that if the applications for anticipatory bail were directly entertained by the High Court, it would cause hardship and inconvenience to the Public Prosecutor and the investigating officer and no prejudice would occur to the persons seeking anticipatory bail even if they were directed first to approach the Sessions Court. Even assuming that this was a valid consideration justifying restriction of choice (regarding the forum to be approached) which is granted by the Parliament to the petitioners, we are of the opinion that similar considerations of hardship or inconvenience would not Page 11 of 20 R/CR.MA/20757/2014 JUDGMENT arise in the case of applications for cancellation of bail under Section 439(2) of the Criminal Procedure Code. When a person moves for anticipatory bail for the first time, there is no earlier judicial order containing a discussion about the nature of the offence, the nature of the evidence, the antecedents of the applicant etc. in the circumstances, it may be necessary for the Public Prosecutor sometimes to seek instructions from the investigating officer. However, when the question is of cancellation of bail already granted to an individual there is in existence a judicial order by which he was granted bail which order would contain the necessary facts as to the nature of the offences, the nature of the evidence, the antecedents of the accused person and the suitability or otherwise of the accused-person in other respects for being admitted to bail or for being denied bail. In such a case, it may hardly ever be necessary for the State Public Prosecutor appearing before the High Court to seek other instructions from the investigating officer. It must be assumed that the investigating officer would place all such material before the Magistrate which would, in his opinion, require refusal of bail to the accused. The State Public Prosecutor can make use of such material when the matter comes up before the High Court for cancellation of bail.
12. Further more, the incidence of bail cancellation applications may not be as high as that of anticipatory bail applications. In view of that fact also it may not be proper to whittle down the clear effect of the language of Section 439(2) of the Criminal Procedure Code which confers concurrent jurisdiction on the High Court and the Court of Session to cancel bail without any words of limitation such as that the petitioner must first move the Sessions Court and can approach the High Court only if he is aggrieved by the order of the Sessions Court.
13. It is true that Section 439(2) of the Criminal Procedure Code invests the High Court and the Court of Session with judicial discretion to cancel bail. The question is whether exercise of this discretion embraces or implies any power to restrict the petitioner's choice of forum where the legislature has in clear and unequivocal terms given him such choice by conferring concurrent Page 12 of 20 R/CR.MA/20757/2014 JUDGMENT jurisdiction on two Courts. We are clearly of the opinion that the discretion to be exercised is only with respect to the question whether the facts and circumstances of the case would justify cancellation of bail which is already granted. The exercise of discretion cannot be extended to the question whether the petitioner should have approached the Sessions Court first or should be allowed to approach High Court first. In fact we have also some doubts about High Courts power to evolve any practice which would fly in the face of the clear and unequivocal language of the enactment. The assumption, in our opinion, should be that the Parliament has, advisedly and in all its wisdom, conferred concurrent jurisdiction after considering all pros and cons and all the implications of what it was doing. We may, however, hasten to add that we are deliberately refraining from entering into the question of correctness or otherwise of the view taken by R.A. Mehta, J. in the case of Ramchandra Kashiram Vora v. State of Gujarat (supra) in respect of anticipatory bail applications under Section 438 of the Criminal Procedure Code because we feel that we are not called upon to enter into that question for the purpose of deciding the present reference. We may only note that a view similar to one taken by R.A. Mehta, J. in respect of anticipatory bail applications is taken by certain other High Courts also, to wit, by the Rajasthan High Court in Hajialisher v. State of Rajasthan 1976 Cri. LJ 1658 by the Karnataka High Court in K.C. Iyyar and etc. v. State of Karnataka 1985 Cri. LJ 214 and by the Punjab and Haryana High Court in Chhajju Ram Godera and Ors. v. State of Haryana and Anr. 1978 Cri. LJ 608. A contrary view has also been taken in Mohan Lal and Ors. v. Prem Chand and Ors. is a Full Bench decision. There is also the case of Amiya Kumar Sen v. State of West Bengal 1979 Cri. LJ 288 wherein the propositions laid down are (i) choice is given to the petitioner for anticipatory bail to choose either of the forums that is either the High Court or the Sessions Court and (ii) this choice is, however, restricted, in the sense that he cannot approach both the forums one after the other. In that case, an application for anticipatory bail was first made to the Sessions Court and it was rejected by the Sessions Court and then a fresh application for anticipatory bail was made to the High Court but it was held that it cannot be made because the party can approach either the Sessions Court or the High Court and not both the courts even though it may be one Page 13 of 20 R/CR.MA/20757/2014 JUDGMENT after the other. One may or may not agree with this view but the necessary corollary which flows from the view taken by the Calcutta High Court in this decision is that one can apply directly to the High Court for anticipatory bail under Section 438 of the Criminal Procedure Code without first approaching the Sessions Court. But this conflicting view are all in respect of anticipatory bail applications under Section 438 of Criminal Procedure Code,
14. Whatever may be the view one may take regarding applications for anticipatory bail, we find that so far as an application for cancellation of bail under Section 439(2) of the Criminal Procedure Code is concerned, it is open to the person seeking cancellation of bail to approach the High Court directly without first approaching the Sessions Court.
15. There is, of course, one decision of Himachal Pradesh High Court in Sher Singh v. Singha Singh 1972 Cri. LJ 1607 which is directly to the point and is in favour of the view that in the case of an application for cancellation of bail under Section 439(2) of the Criminal Procedure Code, it is 'desirable' that the parties should first approach the Sessions Judge. The decision was rendered by R.S. Pathak, C.J. (as he then was) of the Himachal Pradesh High Court and his observations are as under:
"It seems to me that in the circumstances, the petitioner should apply to the learned Sessions Judge in the first instance. That course will be in accordance with the law laid down by this Court in Gulam Ali v. The State 1972 Him. LR 8 : 1972 Cri. L.J. 551. Learned Counsel for the petitioner has drawn my attention to S. Narayanan v. Kannamma Bhargavi where a Full Bench of the Kerala High Court has observed that there is no legal bar to a party approaching the High Court without first moving the Sessions Judge or the District Magistrate. Reference was made to the practice prevailing in that High Court. There is no doubt that a party is entitled to apply to the High Court even as he is entitled to do so before the learned Page 14 of 20 R/CR.MA/20757/2014 JUDGMENT Sessions Judge. But whenever concurrent jurisdiction is vested by the statute simultaneously in two Courts, one superior to the other, I consider it appropriate that the party should apply to the inferior Court first. There are a number of reasons persuading me to that conclusion. Firstly, if a party is required to go to the inferior Court in the first instance the superior Court has the advantage of the opinion of the inferior Court when the occasion arises for the exercise by it of its jurisdiction in the matter. Secondly, the inferior Court is generally situated in the same or very near the place where the authority is situate from whose order the revision application is made, and it is more convenient and saves time for the record to be sent from that authority to the inferior Court when the revisional application is filed and upon disposal of the revision application for the record to be returned to the authority for disposal of the case, Thirdly, it provides against the superior Court being flooded with cases which can be more appropriately disposed of by the inferior Court. These are reasons which have generally prevailed with the High Courts in holding that where it is a case of concurrent jurisdiction a party should ordinarily apply to the inferior Court in the first instance. The rule is not an absolute rule. It is to be applied ex debito justitile. There may be a case where the interests of justice may be defeated if a party is required to apply to the inferior Court first before approaching the High Court. The rule must then give way to the interest of justice."
16. We are in respectful disagreement with the aforesaid view, because we find that the Parliament must be assumed to have considered all the implications of conferring concurrent jurisdiction on two Courts, one superior and the other inferior, and must then have deliberately and advisedly conferred concurrent jurisdiction. Once concurrent jurisdiction is conferred without limiting the choice of forum to which a party may take recourse, no practice which runs counter to such a provision can be countenanced. In our view, considerations of appropriateness cannot be allowed to arise in such a case. When a right is given to a party to Page 15 of 20 R/CR.MA/20757/2014 JUDGMENT choose one or the other forum, he must be taken to be the best Judge as to the forum which would be more convenient to him. We feel, with due respect, that the choice which the legislature has given to a party in respect of the forum to be taken recourse to by him, cannot be taken away by the High Court even for the reasons mentioned in the aforesaid decision in 1972 Cri. LJ 1607.
17. In the result of the above discussion, our answer to the question referred to us, is that the High Court can and should entertain an application for cancellation of bail under Section 439(2) of the Criminal Procedure Code directly, that is, even if the applicant has not approached the Sessions Court first."
I may also quote with profit a Division Bench decision of the Kerala High Court in the case of Balan v. State of Kerala, reported in 2004 Cri.L.J. 3427. The observations made by the Division Bench of the Kerala High Court are worth considering :
"10. It is undoubtedly true that the provision in Sections 438 and 439 confer jurisdiction on the Sessions Judge to entertain an application for anticipatory as well as regular bail. It is also true that the Court should respect institutional hierarchy. The higher court must show faith and respect for the lower court. However, it is equally important to remember that in matters of personal liberty, the right conferred on a citizen has to be liberally construed. A restricted meaning can defeat the very objective of the provision. It can happen that a person living in a remote village may be accused of a serious offence on account of wholly extraneous considerations. He may be involved in a totally false case with the sole object of harming his reputation and humiliating him publicly. In the normal course, he shall rush to the nearest court. He would not want to undergo avoidable expense. But, in a given situation, he may consider it more appropriate to approach the highest Court so that his right to personal liberty is not jeopardized. It may even be that his location is such that the highest Court is nearer than the Sessions Court. Should he be denied the Page 16 of 20 R/CR.MA/20757/2014 JUDGMENT right to choose? The provision does not restrict the choice. It gives him the right to "apply to the High Court or the Court of Sessions". We are of the view that his right must be respected. It should not be 'cribbed, cabined or confined'. He must be given the liberty to choose the forum that he wants to approach. Since the statute places no restriction, we are unable to find any reason to add an embargo.
11. It is undoubtedly true that there is a heavy burden of cases in the High Courts. There is a long pendency. The arrears are mounting. However, even in the subordinate courts, the situation is not very encouraging. Persons remain in custody for long time before the trials commence: In this situation and taking all the facts cumulatively into consideration, we do not think that on the plain language of the statute, there is any warrant for imposing the strict restrictions that have been laid down in Usman's case (supra).
12. In this context, it may also be noticed that even under Section 439, the Legislature has conferred power to grant bail on the High Court as well as the Court of Sessions. The two provisions do not even remotely suggest that the petition has to be filed before the Sessions Court first and then before the High Court. The power to grant bail has been conferred equally on both the Courts. It is clearly concurrent. The citizen has the opportunity to approach the Court of Sessions and then the High Court. It gives him a second chance to seek bail. However, in a case where he chooses to come directly to the High Court, he cannot be thrown out merely on the ground that he has failed to approach the Sessions Court. The petition is clearly maintainable. Equally, it cannot also be said that he must make out an 'exceptional' case before his petition for bail can be entertained. Acceptance of the view as laid down by the Court in Usman's case may result in defeating the right to liberty as guaranteed under the Constitution.
13. It is undoubtedly true that the courts have not commended 'frog leaping'. This view was expressed in Mathew Zacharia v. State of Kerala, 1974 KLT 472, while examining a petition under Section 497. The Court was Page 17 of 20 R/CR.MA/20757/2014 JUDGMENT obviously considering a matter before Section 438 had been brought on the Statute book. The obvious reason was that the Code did not confer the right to choose. Even otherwise, the Courts respect the principle of hierarchy. This, however, cannot mean that the doors of this Court shall be shut out to a person whose liberty is under an imminent threat and he will be allowed entry only after the bail has been declined by the Sessions Court. Accepting this principle may result in denial of liberty. We need to remember that for a majority of people, the sight of prison is painful. The thought of the trauma is terrifying. It creates a terror in the mind. The court cannot be mindless of such a person's plight. The need to save him from the shame and shock has to be kept in view.
14. Thus, it is no surprise that the statute has given the applicant a choice. On a plain reading of the statutory provisions, it is clear that the right to choose the forum is with the person who is apprehending arrest or has been actually arrested. This right should not be curtailed by any self-imposed restraint. Such restrictions, as mentioned in the order, can result in more harm than good and defeat the object with which the provision was introduced."
Thus, considering the above, I am of the view that since both the Courts i.e. the Court of Sessions and the High Court have concurrent powers in the matter of grant of regular bail, a person seeking regular bail under Section 439 of the Code should approach the Court of Sessions in the first instant as this would serve the ends of justice, public interest and also the administration of justice. However, there may be cases with special reasons or involving special circumstances necessitating the person concerned to approach the High Court at the first instant. If the reasons assigned by him to approach the High Court at the first instant are found to be genuine, such an application may be considered by the High Court.
Page 18 of 20R/CR.MA/20757/2014 JUDGMENT I may only say that ordinarily the regular bail applications which are filed by the accused through their respective advocates are always after approaching the Sessions Court. In cases where the accused is in jail and is unable to engage an advocate and there is none in the family even to help him, then in such circumstances, if he files an application directly to the High Court through jail, such application should not be rejected only on the ground that the same has been filed directly. Ultimately, it should be left to the sound and wise discretion of the Court whether to entertain or not.
Therefore, directing the registry to send a copy of the order dated 1st January 2015 to all the jail authorities and the sessions courts throughout the State of Gujarat is in direct conflict with the Division Bench decision of this High Court referred to above.
In view of the above, the preliminary objection raised on behalf of the State as regards the maintainability of this application is overruled.
So far as the plea of the accused for regular bail is concerned, I do not propose to go into the merit of the same as it appears that the trial is now ripe enough for recording of the evidence. The learned Special Judge, Jamnagar, is directed to see that the Special Atrocity Case No.23 of 2012 is taken up for recording of the evidence at the earliest and the same is dispose of on or before 30 th April 2015. The trial Court shall proceed to record the evidence on day-to-day basis as directed by the Supreme Court in the case of Akil Alias Javed v. State Page 19 of 20 R/CR.MA/20757/2014 JUDGMENT (NCT of Delhi), reported in (2013)7 SCC 125.
In view of the above observations and directions, this application stands disposed of.
(J.B.PARDIWALA, J.) MOIN Page 20 of 20