Nirav Dilipbhai Patel vs State Of Gujarat on 22 December, 2014
6.2 So far as case of Panki (supra) is concerned, it is a judgment by
the equivalent bench i.e. Single Judge of the Rajasthan High Court and
that to of the year 1996 and it is mainly based and relied upon the case
of Guracharan Singh (supra), irrespective of any specific observations
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R/CR.MA/17476/2014 CAV JUDGMENT
in that judgment, since the judgment of Gurucharan Singh (supra) is
not relevant for the situation on hand and such judgment would not help
the complainant/prosecution to arrive at a conclusion that this Court has
no jurisdiction to entertain such bail application. However, even after we
consider the observations in such reported case, in my opinion, the
conclusion in such reported case that legitimately the High Court and
the Court of Sessions will be approached by an accused only after failure
before the Magistrate under Section 437 of Code of Criminal Procedure
is against criminal jurisprudence, which stand in force as on date, for the
simple reason that, if we follow such findings then provisions of Section
438 of Code of Criminal Procedure become null and void, wherein there
is an ample power vested to the High Court and the Court of Sessions to
direct the release of a person on bail in the event of his arrest where any
person has reason to believe on execution of having been committed on
nonbailable offence. Thereby, if we believe the aforesaid two judgments
then it seems that no one has a right to apply for the anticipatory bail
under Section 438 of the Code of Criminal Procedure before the Sessions
Court or High Court. However, at present we are concerned with the
findings with reference to Section 437 and 439 of the Code of Criminal
Procedure. Probably, therefore, when there is a finding with reference to
Section 437 and 439 in aforesaid citations, it is submitted by the
prosecution/complainant that accused must first surrender before the
Magistrate and that ordinarily at the first instance bail application is to
be moved before the Court of Magistrate as envisaged under Section 437
of the Code of Criminal Procedure.