Orissa High Court
Mitu Das And Others vs State Of Odisha .... Opposite Party on 26 April, 2021
Author: S. K. Panigrahi
Bench: S. K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No. 5283 of 2021
Mitu Das and others .... Petitioners
Mr.G.Muduli, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. J.Katikia,
Additional Government Advocate
CORAM:
JUSTICE S. K. PANIGRAHI
ORDER
Order No. 26.04.2021
02 1. This matter is taken up by video
conferencing mode.
2. This is an application under Section 438 of the Cr. P.C..
3. Heard learned counsel for the petitioners and learned counsel for the State.
4. The petitioners herein are apprehending arrest in G.R. Case No. 85 of 2021 arising out of Bhuban P.S. Case No.91 of 2021 on the file of learned J.M.F.C., Bhuban for commission of offences under Sections 341/294/323/379/ 506/ 34 of the Indian Penal Code.
5. Without going into the merits of the present petition filed by the petitioners under Section // 2 // 438, Cr. P.C. seeking direction for pre-arrest bail, this Court is to observe first that whether the petition under Section 438 Cr. P.C. is maintainable before this Court without exhausting remedy under the said provision before the Court of Sessions which has concurrent jurisdiction.
6. The provisions of bail create a balance between the personal liberty of an accused and the interest of the society. Bail is a matter of right in bailable offences as provided under Section 436 of the Cr. P.C. and a matter of judicial discretion in non-bailable offences under Sections 437 and 439 of Cr.P.C. Where bail under Sections 436, 437 and 439 Cr. P.C. can be granted only after an arrest. On the other hand Section 438 Cr. P.C. provides for a pre-arrest bail which is commonly known as Anticipatory Bail.
7. A plain reading of Section 438 Cr.P.C. necessitates an immediate conclusion that the jurisdiction conferred on the High Court and the Sessions Court for entertaining prayer for anticipatory bail is concurrent in nature. However, the controversy as to whether the application would be maintainable before the High Court only after exhaustion of the remedy before the Sessions Court has been posed before different High Courts in plethora of cases.
8. A bare perusal of the Section 438 of Cr. P.C. which reads as follows:
Page 2 of 10// 3 // "438. Direction for grant of bail to person apprehending arrest-(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely-
(i) the nature and gravity of the accusation:
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offences;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail."
The rest of the provision is not necessary for the purpose of considering the present question.
9. Upon a plain reading of the provision under Section 438 of Cr. P.C., it is crystal clear that it confers concurrent jurisdiction on the High Court as well as on the Court of Sessions. The wide Page 3 of 10 // 4 // discretion has been entrusted on the Court of Sessions as well as on the High Court to enlarge such person who comes to the Court, on anticipatory bail. Both the Courts have got jurisdiction to enlarge the applicant on anticipatory bail, considering the relevant guidelines in the said provision. As it is seen in the provisions itself, there is no embargo or any rider incorporated under the provision that the person who approaches the High Court must first exhaust the said remedy before the Court of Sessions.
10. Though such remedy, cannot be whittled down by imposing any extraordinary condition, still the Court can refuse to entertain the bail petition and direct the party to approach the Court of Sessions first because Section 438 of Cr. P.C. is purely a discretionary power of the Court to exercise power depending upon the facts and circumstances of each case. Therefore, the High Court can direct the party to go first before the court of Sessions and then come to the High Court. It is true that there is no embargo under the statute, but the Court can do so on the basis of various factors arising for its consideration.
11. The law Commission of India had to confront with this issue, 203rd Law Commission Report (December, 2007) succinctly analyses that concurrent jurisdiction of the Court of Sessions and the High Court under Section 438 has Page 4 of 10 // 5 // 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 to the Court of Sessions or to the High Court for anticipatory bail, one after another or otherwise. There is a conflict of opinion amongst various High Courts as to whether the Court of Sessions should originally be approached in the first instance or the High Court can be straightway approached for grant of anticipatory bail without first taking recourse to the Court of Sessions. It may be noted that both the Court of Sessions and the High Court exercises original jurisdiction under Section 438 Cr. P.C.. However, when the High Court is moved after the anticipatory bail application has been dismissed by the Court of Sessions, the petition for anticipatory bail in the High Court is required to be accompanied with a copy of the Session Court's order, from which, reason(s) for dismissal of anticipatory bail application can be ascertained. In such a case, the High Court essentially exercises revisionary powers over the order of the Court at the first instance i.e. Sessions Court though it is purporting to be exercising original jurisdiction under Section 438 Cr. P.C.. On the other hand, it has been held in some cases that where the applicant moves the High Court for anticipatory bail which is rejected, then the Court of Sessions Page 5 of 10 // 6 // should not grant anticipatory bail to the applicant on the same facts and material, as otherwise, it would be an act of judicial impropriety.
12. As a matter of propriety and policy, should the applicant move to the higher judicial forum instead of a lower one in such cases as is done in cases of the applicant under Section 439 Cr. P.C. It is inherent in the scheme of things that when two alternative forums are provided in law for seeking directions for anticipatory bail, one lower and another higher, then it is prudent to approach the lower first then the higher. Except in some exceptional cases where the applicant should mention in the preambulary paragraphs of the application about the reason(s) for such direct approach. Some of the precedents do enlighten this issue at hand.
In case of Shailbala Devi v. Emperor,1 it is held as follows:
" It is quite clear that a practice has grown up in this Court to refuse to entertain applications direct, until the District Magistrate or the Sessions Judge has been approached. This practice is based largely on convenience and seems to me to be sound. The District Magistrate or the Sessions Judge is on the spot and easily accessible and the record can be locally called for promptly without any loss of time and without the necessity of sending it through the post. The proceedings are also likely to be less expensive. The High Court is a superior Court and its time would not be unnecessarily spend in examining the 1 A.I.R.1933 Alld.678 Page 6 of 10 // 7 // record and in some cases even considering the evidence, when a subordinate court has already considered the matter and made its report.
Similarly, in the case of S.P. Dubey v. Narsingh Bahadur2 it is held that "Accordingly it was held that though the normal practice for the High Court is to refuse to entertain application where the applicant did not approach the Sessions Judge first, but there is no hard and fast rule and in suitable cases the High Court has been known to depart from this practice and to accept revisions that have not been previously considered by a Sessions Judge."
Further in the case of Hajialisher v. The State of Rajasthan,3 the Rajasthan High Court observed that:
"choice of Court for moving an application under Section 438 of the Cr. P.C. cannot be left completely to the option of the accused as for the decision of this question no distinction can be made between an application under Section 438 and one under Section 439 of the Cr. P.C. and if it is accepted that under Section 438 of the Cr. P.C. an accused person has a right to have his prayer for bail considered in the first instance by the High Court, the same argument can very well be pressed into service with respect to applications under Section 439 of the Cr. P.C. The Court held that it is desirable that the ordinary practice should be that the lower court should be first move in the matter, though in exceptional cases or special circumstances, the High Court may entertain and decide an application for bail 2 1960 A.L.J. 880 3 1976 Cri L.J 1658 Page 7 of 10 // 8 // either under Section 438 or under Section 439 of the Cr. P.C. directly before the High Court.
In case of Rameshchandra Kashiram Vora v. State of Gujarat4 , it is held as follows:
"10.... I am of the opinion that it would be a sound exercise of judicial discretion not to entertain each and every application for anticipatory bail directly by-passing the Court of Session. Ordinarily, the Sessions Court is nearer to the accused and easily accessible and remedy of anticipatory bail is same and under same section and there is no reason to believe that Sessions Court will not act according to law and pass appropriate orders. In a given case, if any accused is grieved, his further remedy to approach the High Court is not barred and he may prefer a substantive application for anticipatory bail under Section 438 or revision application under 397 of the Cr. P.C. to the High Court and the High Court would have the benefit of the reasons given by the Sessions Court. It would be only in exceptional cases or special circumstances that the High Court may entertain such an application directly and these exceptional and special circumstances must really be exceptional and should have valid and cogent reasons for by-passing the Sessions Court and approaching the High Court.
13. Even the Legislature in its wisdom has conferred concurrent jurisdiction on the Court of Sessions perhaps bearing those very reasons in mind. The barriers of access to justice like the distance, time, expense of litigation etc. are all relevant factors which appear to have guided the 4 1988 Cri L.J 210 Page 8 of 10 // 9 // Legislature in clothing the Court of Sessions with contemporaneous jurisdiction.
14. In view of the above discussion, the applicants should approach the Sessions Court first then to the High Court like that is adopted in Section 439 of the Cr. P.C. The reasons for approaching the Court of Sessions first may be due to the following:
i) Whenever concurrent jurisdiction is provided under the statute simultaneously in two courts of which one is superior to the other, then it is appropriate that the party should apply to the subordinate Court first, then he/she may seek his/her remedy in the High Court.
ii) The Sessions Court will always be nearer and accessible court to the parties.
Moreover, considering the work load of the High Courts in the country and the cases of this nature are nothing but contributing to heavy pendency of cases. The applications under Section 439 of Cr.P.C often fail to get the required attention because of the docket arising out of such applications filed under Section 438 of Cr.P.C. directly in the High Court bypassing the Courts of Sessions.
iii) The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts Page 9 of 10 // 10 // and perusal of the entire materials on record. In this context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case with expedition.
15. In view of the above, the petitioners are granted interim protection for a period of three weeks to approach the Court of Sessions for seeking similar relief and the Court of Sessions shall list this matter as early as possible before the expiry of three weeks of protection granted to the petitioners.
16. Accordingly, the ABLAPL is disposed of.
17. As the restrictions due to the COVID-19 situation are continuing, learned counsel for the petitioners may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notice No.4587, dated 25th March 2020.
(S. K. Panigrahi) Judge LNB Page 10 of 10