MANZOOR AHMED Vs. STATE OF RAJASTHAN
HIGH COURT OF RAJASTHAN
STATE OF RAJASTHAN
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KISHORE SINGH LODHA, J. -
(1.)THIS is a bail application Under Section 438 Cr.PC. on behalf or Manzoor Ahmed against whom the Police is Investigating a case Under Sections 406 and 420 I.P.C. The petitioner has moved this Court Under Section 438 without first moving the Court of Sessions. This Court has consistently held that the Sessions Court should first be moved before an application is moved before the High Court Under Section 438 Cr.PC. Reference in this connection may be made to Bhoora Ram v. The State of Rajasthan 1976 Raj. Cri. Cases 222 and Hazi Alisher v. State of Rajasthan 1976 Cri. LJ 1658. However, the learned counsel for the petitioners has placed before me authorities of other courts, namely, Onkar Nath v. State 1976 Cri.LJ 1142, Mohan Lal v. Prem Chand AIR 1980 MP 36 and Jagannath v. State of Maharashtra 1981 Cri.LJ 1838. I have carefully considered these authorities but I am of the opinion that the view taken by this Court in the aforesaid cases should be adhered to. In Onkar Nath's case (supra), a Full Bench of the Allahabad High Court had considered the matter and was of the opinion that the powers Under Section 438 are such which can be concurrently exercised by the Court of Sessions as also by the High Court and, therefore, there is no legal bar in entertaining an application filed direct before the High Court Under Section 438 Cr.PC. without first moving the Court of Sessions. However, their Lordships observed asunder:
It may, however, be mentioned that in as much as Section 438 of the Code of Criminal Procedure, 1973 given a discretionary power to grant bail, this discretion is to be exercised according to the facts and circumstances of each case. There may be cases in which it may be considered by the High Court to be proper to entertain an application without the applicant having moved the Court of Sessions initially. Similarly there may be cases in which the Court may feel justified in asking the applicant to move the Sessions Court or to refer the matter to that Court. In any case all depends upon the discretion of the Judge hearing the case.
This clearly goes to show that even according this decision, the discretion entirely rests with the Judge hearing the application. In the circumstances if the exigencies of the case so require, an application under Section 438 may be entertained by the High Court even though the Court of Sessions may not have been moved earlier but that appears to be only an exception and not the general rule. The general rule according to this view also appears to be that the Court of Sessions must be moved first. In Jagannath's case (supra), a learned single Judge of the Bombay High Court has followed the Allahabad view. He has also referred to a decision of the Punjab & Haryana High Court reported in Chhajju Ram v. State of Haryana 1978 Cri.L.J. 608 wherein it has been observed that the petitioner should ordinrialy first move the Court of Sessions for grant of an anticipatory bail and after exhausting that remedy, he should approach the High Court for grant of an anticipatory bail. Therefore, this case goes in line with our own decisions referred to above rather than helping the petitioner. In Mohan Lal's case (supra), a Full Bench of that Court had taken the view that the petitioner cannot be compelled to go to the Court of Sessions before moving the High Court under Section 438 Cr.PC. but that case also appears to be distinguishable in as much as in that case their Lordship were concerned with a rule framed by the High Court to the effect that the Court of Sessions has to be moved first before moving the High Court in revision etc. This rule appears to have been in existence before the amendment in the Code of Criminal Procedure and their Lordships were of the view that such a rule cannot be upheld after coming into force of the new Criminal Procedure Code and in that light they had observed that a petitioner cannot be compelled to move the Court of Sessions first. However, they have not departed from the view that the Court of Sessions must be generally moved first.
(2.)IN these circumstances, I am clearly of the opinion that the petitioner should have first moved the Court of Sessions before coming to this Court under Section 438 Cr.PC. The petitioner has not been able to make out any extra ordinary reason why this practice should not be adhered to in this case. He has merely stated that on account of the atmosphere created by the complainant department, he is not likely to receive justice at Bhilwara and the learned Sessions Judge, according to him, is also of the opinion that Section 438 Cr.PC. is not meant for that court. The first reason is mere unfounded apprehension and the second is, to say the least, preposterous.
The application is, therefore, rejected.
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