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2001 DIGILAW 315 (ORI)

USMAN ALI KHAN v. STATE OF ORISSA

2001-07-23

N.Y.HANUMANTHAPPA

body2001
JUDGMENT : N.Y. Hanumanthappa, C.J. - Petitioner has filed this petition u/s 438, Code of Criminal Procedure with a prayer for grant of anticipatory bail. Offence alleged against the Petitioner is punishable u/s 366, I.P.C. Considering serious nature of offence alleged, when I was about to direct the Petitioner to first move the learned Sessions Judge for anticipatory bail, Mr. A.K. Acharya, learned Counsel appearing on behalf of the Petitioner, submitted that the learned Sessions Judges as also the learned Additional Sessions Judges are not receiving the applications u/s 438, Cr.P.C. According to him, whenever applications u/s 438, Code of Criminal Procedure are filed before the learned Sessions Judges in the State, the learned Sessions Judges are asking the applicants to move the High Court. If the statement made by Mr. Acharya that the learned Sessions Judges and the Additional Sessions Judges are not entertaining the applications filed u/s 438, Code of Criminal Procedure is correct, then it has to be said that such an approach on the part of the learned Sessions Judges and the Additional Sessions Judges is only incorrect, contrary to Section 438, Code of Criminal Procedure, and also an act refusing to exercise the powers conferred on them. 2. Section 438, Code of Criminal Procedure reads as under: 438. Direction for grant of bail to person apprehending arrest (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section, and that Court may, if it thinks fit, direct that in the event of.such arrest he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under Sub-section(1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including,: (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that Section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section( 1). 3. The powers u/s 438, Code of Criminal Procedure are concurrent powers conferred both on the High Court and the Sessions Judges. Normal practice shall be to move the Sessions Court first. Approaching the High Court shall be sparingly and only under extraordinary circumstances. Object behind conferring power on Sessions Judges is that the party who apprehends arrest may move the Court nearer to his place for interim relief to save his honour and self-respect. On the other hand, to get relief, if entitled, quickly and without much financial burden. It is made c I ear that whenever an application u/s 438, Code of Criminal Procedure is filed, it is the duty of the learned Sessions Judge to entertain and dispose of the same on merit instead of directing the parties to approach the High Court straightaway. 4. With the above observation, the petition is disposed of directing the Petitioner to first move the learned Sessions Judge for necessary relief. 4. With the above observation, the petition is disposed of directing the Petitioner to first move the learned Sessions Judge for necessary relief. Let copies of this order be sent to all the Sessions Judges in the State for their guidance.