The Uttarakhand High Court has, while deciding a reference sent by a single judge, reiterated that “the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C (anticipatory bail)” and that, “it is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly”.
A bench of Justice Rajiv Sharma and Justice Manoj Kumar Tiwari said: “The principles of Sections 438 and 439 of Cr.P.C. (regular bail) are not para materia”.
The bench was deciding the reference sent by a single judge who doubted the views of a concurrent court which had held that provisions of anticipatory bail are guided by the principles of regular bail and that the provisions of Section 438 of Cr.P.C. were pari materia with Section 439.
While deciding the question, the division bench said, “According to plain 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.”
“The principles of Sections 438 and 439 of Cr.P.C. are not para materia. 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. 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,” it said.
The bench referred to the Supreme Court’s judgment in Gurbaksh Singh Sibbia etc. vs. The State of Punjab, wherein the court drew a distinction between an ordinary order of bail and an order of anticipatory bail and 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.
It also referred to the decision of full bench of Himachal Pradesh High Court in Mohan Lal & others vs. Prem Chand & others, wherein it was held that “Once the statute has given a right to a person to choose between the High Court and the Court of Session it is for him to choose the Court. The Parliament having spoken we cannot be wiser”.
In yet another case titled Y Chendrasekhara Rao & others vs. YV Kamala Kumari & others, the division bench of Andhra Pradesh High Court had in 1993 held that Section 438 CrPC confers power both on High Court and Court of Session to grant anticipatory bail and that denial of right of moving to the high court in the first instance amounts to violation of Article 21 of the Constitution.
Similarly, the Kerala High Court had in the year 2004 held in a case titled Balan vs. State of Kerala, held that “…even under Section 439 CrPC, 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 Uttarakhand High Court also referred to a recent Supreme Court judgement in case titled Barun Chandra Thakur vs. Central Bureau of Investigation & others wherein the court had held that the act of the respondent in approaching the high court directly for anticipatory bail cannot be faulted when both high court and the court of sessions have concurrent jurisdiction.
Holding that in view of the legal position, the high court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C and it is for the accused to choose the forum, the bench remitted the matter back to the single judge.