TaxTMI 
TaxTMI 
TaxTMI 
2018 (11) TMI 1847
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....lain language of Section 438(1) of Cr.P.C., any person who has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, may apply to the High Court or the Court of Session. 6. The principles of Sections 438 and 439 of Cr.P.C. are not para materia. 7. Section 438 of Cr.P.C. is invoked by the accused who believes and is apprehending his arrest on accusation of committing a non-bailable offence. 8. Section 439 of Cr.P.C. enables the High Court or Court of Session to enlarge a person on bail who is accused of an offence and is in custody. 9. In AIR 1980 SC 1632, in the case of "Gurbaksh Singh Sibbia etc. vs. The State of Punjab", their Lordships of the Hon'ble Supreme Court have drawn the distinction between an ordinary order of bail and an order of anticipatory bail. Their Lordships have also held that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. ....
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....y word or action". A direction under Section 438 is intended to confer conditional immunity from this 'touch' or confinement." "26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi 6, that in order to meet th....
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....ding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398. (2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them." The reason for such a restriction is that Section 399 confers on t....
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....true that under the old Code wherever a concurrent jurisdiction was conferred on more than one court, the inferior Court was expected, as a matter of practice, to be approached first. However, in the case of anticipatory bail to force a person to move the Sessions Judge first may result in uncalled for curtailment of his right. For various reasons a person may like to move the High Court straightway and may not like to: approach the Sessions Judge. Since the section relates to the liberty of a person, we would not like to impose any kind of restriction on his right to move that High Court in the first instance. 13. We have given our earnest consideration to the reason given in Joginder Singh's case. We are afraid we cannot agree with that view. When a person makes an application for anticipatory bail in the High Court after a similar application of his has been rejected by the Sessions Judge, he does not invoke the revisional jurisdiction of the High Court but applies under Section 438. Assuming that revisional jurisdiction is invoked, we are not prepared to hold that Sessions Judge's order refusing anticipatory bail is an interlocutory order. 14. A learned single Judge o....
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....sion is clearly unfounded. If this Court has to exercise discretion, in the first instance, under Section 438, there is no warrant to predicate that the exercise of the discretion would result in large number of persons being granted relief under Section 438. In this context, we must clarify the legal position regarding the exercise of discretion under Section 438. Citing K. Dayanand Rao v. State of Andhra Pradesh, the learned Public Prosecutor says that, even if one does not have any material to believe that he may be arrested on an accusation of having committed a non-bailable offence, he can still move this Court and obtain anticipatory bail to ensure a possible future arrest. The aforesaid case does not warrant such an inference. After considering Gurubaksh Singh's case (supra), the Division Bench held that it is not a condition precedent for passing an order under Section 438, that there should be in existence of a crime number or FIR, against the person on whose behalf the petition is filed. From this it is not possible to infer that without any basis whatsoever any one can move this Court under Section 438 and obtain anticipatory bail. The Supreme Court in Gurubaksh Sing....
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....ch Court of Sessions before he can move the High Court. The Division Bench has held as under:- "11. 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 had 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. 14. Thus, it is no surprise that the statute has given the a....
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....onal vendetta of the complainant. Their Lordships have held as under:- "17. Having carefully considered the submissions made on behalf of the respective parties and the decisions referred to in support of their respective cases, we are of the view that the role of Respondent 1 in the entire episode did not entitle him to the relief of anticipatory bail, much less a blanket order of bail. However, that is now a closed chapter. But what is of relevance is whether the High Court should have worded its order in such a way that it could be interpreted to mean, as has been done by all concerned, that Respondent 1 was not required to even appear and surrender before the court during the entire investigation stage and the trial. Taking advantage of the same, Respondent 1 has successfully avoided the court from the very initial stage of investigation and even the trial. Such kind of an order is not contemplated under Section 438 Cr.P.C. as has been repeatedly explained by this Court. The said position has been clearly enunciated in Adri Dharan Das case. 18. Furthermore, it has also been consistently indicated that no blanket order could be passed under Section 438 Cr.P.C. to prevent the a....
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....rthwith and pray for regular bail and the trial court shall dispose of the same on merits, in accordance with law, before proceeding further with the trial." 14. Recently, in Supreme Today in 2014 (3) Supreme 285, their Lordships of the Hon'ble Supreme Court have held that the Session Court as well as the High Court exercises concurrent powers under Section 439 of Cr.P.C. Their Lordships have held as under:- "26. In conclusion, therefore, we are of the opinion that the learned Single Judge erred in law in holding that he was devoid of jurisdiction so far as the application presented to him by the Appellant before us was concerned. Conceptually, he could have declined to accept the prayer to surrender to the Courts' custody, although, we are presently not aware of any reason for this option to be exercised. Once the prayer for surrender is accepted, the Appellant before us would come into the custody of the Court within the contemplation of Section 439 Cr.P.C. The Sessions Court as well as the High Court, both of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide whether the applicant/Appellant had sh....