Kerala High Court
Gopinath vs State Of Kerala on 5 December, 1985
Equivalent citations: 1986CRILJ1742
ORDER S. Padmanabhan, J.
1. The two questions arising for consideration in this application filed under Section 438 of the Cr. P.C. are (1) Whether the rejection of an application under Section 438 by the Sessions Judge is a bar to a second application being filed before the High Court, and (2) If there is no such bar whether this is a fit case for anticipatory bail.
2. One Sahadevan wanted his son to be admitted in the Dental College, Manipal. He approached the petitioner who offered to secure admission if Rs. 14,000/- is paid. The amount was paid. Son of Sahadevan got admission. But Sahadevan moved the police alleging that petitioner cheated him and he secured admission for his son through some other source. Petitioner apprehends that he may be arrested on an accusation of cheating. The application was not opposed-on the ground that the apprehension is not correct. That means the petitioner is likely to be arrested on the above Accusation.
3. An application filed by the petitioner under Section 438 was rejected by the Sessions Judge. That order is contended to be a bar in moving this Court again for the same relief. Amiya Kumar v. State of West Bengal 1979 Cri LJ 288 (CAL) was relied on in support of the argument. In that decision it was held:
We have given our best consideration to the provision contained in Section 438 of the Cr. P.C., 1973 and the language used therein and we have no doubt to hold that the said section gives the petitioner for anticipatory bail a choice as to the forum where he is to apply. 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. In the present case, therefore, the second petition for anticipatory bail by the petitioner before this Court is not maintainable after the rejection of the first one by the Court of Session.
Section 438(1). of the Cr. P.C. reads:
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 this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
The Section says "may apply to the High Court or the Court of Session". The conjunction 'or' appearing in between 'High Court' and 'the Court of Session' was held in that decision to have been used in an alternative or exclusive sense in contradiction with the term used in Sections 397 and 439 in non alternative sense as equivalent to 'and'. With due respect to the learned Judges who decided that case I beg to disagree, I do not think that the section was intended to give a restricted forum in the sense that when one forum is chosen the jurisdiction of the other is excluded. There cannot be any dispute that an accused is having the freedom to approach the Court of Session or the High Court under Section 438. But the question is only whether an accused who approached the Court of Session and got defeated is precluded from moving the High Court for the same relief. I am of the view that he is not precluded. The fact that the concerned person is given the freedom of applying to the High Court or the Court of Session need not necessarily mean that when the Court of Session is moved the option has become final and the approach to the High Court is thereafter barred. By the use of the word 'or' in Sub-section (1) the legislature has invested the Court of Session and the High Court with concurrent jurisdiction. If the accused makes an application to the Sessions Judge and the same is rejected, nothing in the Code prevents him from making a subsequent application to the High Court. That jurisdiction of the High Court is original and not revisional.
4. Under Article 227 of the Constitution the High Court is having supervisory jurisdiction over all the Courts and tribunals within its jurisdiction. The power under Section 438 of the Cr. P.C. is not being exercised under that supervisory jurisdiction, but under Section 438 itself. There is nothing in Section 438 or in any other provision to indicate that the legislature wanted to oust the jurisdiction of the High Court when an accused has chosen to approach the Court of Session first. Courts are existing for the dispensation of justice. For that purpose whatever is not prohibited and not inconsistent with the statutory provisions must be taken to have been permitted. There may be umpteen cases in which the Court of Session may wrongly exercise the jurisdiction under Section 438 resulting in prejudice to individuals or the State. To assume an imaginary prohibition in such cases will only result in the injustice being left unremedied.
5. There are identical wordings in other provisions of the Criminal Procedure also. For example we have got the provisions in Sections 397(1), 398 and 439 of the Code. In all these Sections the words used are "High Court or any Sessions Judge may". There is no basis for treating the conjunction 'or' in these provisions in contradistinction with the same conjunction used in Section 438. If those conjunctions are used in the non-alternative sense as equivalent to 'and', there is no reason why a different interpretation is necessary in the case of Section 438 alone. Such an interpretation may not be conducive to the spirit of Section 438 and the purpose sought to be achieved by it. Whenever the legislature wanted prohibition to be introduced in the exercise of concurrent jurisdiction it has not failed to express the intention in so many words. For example as in the case of Section 438 concurrent jurisdiction is given in the matter of revision under Section 397(1) to the High Court and the Court of Sessions. That means that the concerned party is having the option to approach the Court of | Session or the High Court in the first instance in revision. Section 399(3) says that the party who exercised the option under Section 397(1) and preferred the revision to the Court of Session has no further right to approach the High Court in revision. No such provision is made regarding exercise of rights under Section 438. If the word 'or' in Section 397(1) was alternative or exclusive, the provisions of Section 399(3) would be meaningless. Under Section 439 also the powers of the High Court and the Court of Session are concurrent and the power of the High Court is not merely revisional. When an application for bail is rejected by the Sessions Judge that is not treated as a bar in moving the High Court. Sections 438 and 439 deal with granting of bail. The only difference is that one is granted before arrest in apprehension of arrest and becomes effective when arrested and the other granted after arrest. There is no reason to read into Section 438 a prohibition which is neither expressly nor impliedly provided. If we read such a prohibition into the Section the result will be that even in cases where the High Court feels that a prayer under Section 438 was wrongly rejected by the Sessions Court, it cannot correct the mistake and will have to plead helplessness. I do not think that the legislative intent behind the introduction of Section 438 warrants such a situation Therefore, I hold that the rejection of a prayer under Section 438 by the Sessions Judge is not a bar to the High Court in entertaining an application for the same relief.
6. If so, the only remaining question is whether this is a fit case for the application of Section 438. It is true that resort to Sections 437 and 439 should be the rule and application of Section 438 should be the exception. But in appropriate cases the High Court and the Sessions Judges could invoke jurisdiction under Section 438, In this case the allegation is that Sahadevan sought the help of the petitioner for securing admission for his son and willingly paid Rs. 14,000/- demanded by the petitioner for that purpose. That his son got admission is also admitted. While petitioner says that admission was secured by him the case of Sahadevan is that petitioner cheated him by keeping quiet and he had to seek assistance from other sources to secure admission. It cannot now be considered which of the versions is correct.
7. Petitioner says that there was a news item in some paper that Sahadevan filed a complaint against him for cheating and he has reason to believe that he may be arrested. This apprehension is not contended to be baseless. If so, petitioner has the right to apply under Section 438. Petitioner further says that the allegations against him are false and they were made only to tarnish his image and reputation and harass him. He apprehends that if arrested he will be ill-treated at the instance of Sahadevan. I cannot now say that these allegations are totally baseless. Petitioner also says that he is suffering from deodinal ulcer and cannot withstand the atmosphere in the police station. Further from the undisputed facts it is evident that a direction under Section 438 is not likely to affect the investigation also.
8. In the above circumstances the petition is allowed and the petitioner is directed to be released in case of arrest in connection with the above accusations on his executing bond for Rs. 5,000/- with two solvent sureties each for a like amount to the satisfaction of the arresting officer on condition that he will make himself available for interrogation by the concerned police officers whenever required, that he will not interfere with investigation and that he shall not leave the limits of Cannanore District without previous permission of this Court or the Sessions Judge, Tellicherry until otherwise directed.