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1 - 9 of 9 (0.22 seconds)Section 438 in The Code of Criminal Procedure, 1973 [Entire Act]
Section 482 in The Code of Criminal Procedure, 1973 [Entire Act]
Amiya Kumar Sen vs State Of West Bengal on 26 July, 1978
The learned single Judge dissented from a Division Bench judgment of the Calcutta High Court in Amiya Kumar Sen v. State of West Bengal, (reported in 1979 Cri. LJ 288), in which it was held that, Section 438 has given a choice of selecting the forum for filing the petition for anticipatory bail-to choose either the High Court or the Court of Sessions though both the Courts have been made forums for the approach of the applicant. It was held by the Calcutta High Court that, if the petitioner approaches the Court of Sessions for relief under Section 438 and if his prayer is rejected, he cannot again be entitled to approach the High Court for the same relief on the same ground under that section. These decisions are on the provisions of Section 438 of the Criminal Procedure Code and it will be noticed that there is difference of language in the provisions of Sections 438 and 439. It is, therefore, not necessary to express any opinion on the provisions of Section 438 of the Criminal Procedure Code in this matter since there is no question of anticipatory bail involved. As indicated above, this Court can always exercise its powers under Section 439(1) no sooner it is brought to its notice that the order, which is made under that provision by the Sessions Court, is unjust and the powers can be exercised by this Court effectively by setting aside the order of the Sessions Court and passing an adequate order under this provision.
Mahmood Muzaffar vs State on 14 February, 1962
8. Reliance was sought to be placed on the decision of the Allahabad High Court in Mahmood Muzaffar v. State () in which the Allahabad High Court held that the unfettered discretion which was vested in the High Court under Section 498 of the Cr. P. Code of 1898 in the matter of grant of bail was not in any manner as a matter of law affected or narrowed down merely because the Sessions Judge has refused to exercise a discretion in favour of the accused. There can be no dispute about this proposition and the mere fact that Sessions Court is also vested with the power would not, in any way, undermine the powers of the High Court under that provision. In fact the Allahabad High Court as can be seen from paragraph 13 of its judgment had examined the validity of the order of the Sessions Court and came to its own conclusions for exercising its discretion under Section 498 of the Code. The question as to whether a judicial order passed by the Sessions Court under Section 439(1) should be totally ignored and as to the change in situation in view of the fact that an order is made under Section 439(1) by the Sessions Court was neither agitated nor considered by the Allahabad High Court.
Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977
The decision of the Supreme Court in Amar Nath's case (supra) has been overruled in Madhu Limaye v. State of Maharashtra (, in so far as it held that, inherent powers under Section 439 of the Code would not be available to defeat the bar contained in Section 397(2) and the Supreme Court, in terms held that even assuming that the revisional powers of the High Court were impermissible, the inherent powers under Section 482 can be invoked.
The Code of Criminal Procedure, 1973
Usmanbhai Dawoodbhai Menon & Ors. Etc vs State Of Gujarat on 14 March, 1988
In Usmanbhai Dawoodbhai Memon and Ors. v. State of Gujarat , the Supreme Court has, in terms, held that it cannot be doubted that grant or refusal of bail application is essentially an interlocutory order and there is no finality to such an order though an application for bail can always be renewed from time to time.
Madhu Limaye vs The State Of Maharashtra on 31 October, 1977
To this extent, by the later decision of the Supreme Court in Madhu Limaye's case, which of a larger Bench the statement of law earlier made was modified. It is, therefore, now well settled that, even if a revision application does not lie under Section 397(2) of the Code, that would not preclude the exercise of the inherent powers by the High Court under Section 482 of the Code. Therefore, a judicial order, which cannot be amenable to revisional jurisdiction, would still become subject to the scrutiny of the High Court under Section 482 of the Code in exercise of its inherent powers. In this view of the matter, an order made by the Sessions Court under Section 439 can be challenged before the High Court invoking its inherent jurisdiction and if the High Court finds that in exercising its powers under Section 439, the Sessions Court has passed an unjust order, the High Court can set it aside and can grant bail in exercise of its own powers under Section 439(1) of the Code. Therefore, this application can be rejected simply on the ground that, so long as the order of the Sessions Court made under Section 439(1) governs the field, there is no occasion for invoking the power of the High Court under the same provision especially when the order is not even challenged in this application.
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