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Madhya Pradesh High Court · body

2011 DIGILAW 506 (MP)

Sanjay Avasthi v. Vijay Jain

2011-04-27

I.S.SHRIVASTAVA

body2011
JUDGMENT : Preliminary arguments on the application filed by the applicant under Section 439(2) of the Cr.P.C. for cancellation of anticipa­tory bail order dated 22.03.2011 passed in favour of the respondent No.1 heard. The applicant has prayed for the cancel­lation of anticipatory bail order dated 22.03.2011 passed in favour of the respon­dent No.1 Vijay by the Court of Shri R;K.S.Gautam, A.S.J., Indore. According to Section 439 (2) of the Cr.P.C. the power of cancellation of bail is vested in the Court which granted the bail. Though the High Court and Court of Ses­sion has concurrent powers for the cancel­lation of bail under Section 439 (2) of the Cr.P.C. but for the cancellation of the bail the principle is that the High Court shall not ordinarily, and except under exceptional circumstances, exercise its powers under Sections 438 and 439 of the Cr.P.C. with­out and before the Sessions Court having concurrent jurisdiction is moved for iden­tical relief. In the case of Smt. Manisha Neema vs. State of MP, 2003 Cr.L.J. NOC273 (M.P.), it has been held that application for grant of anticipatory bail should be filed before the Court of Sessions at first instance. On rejection thereof applicant can approach High Court. The same principle is appli­cable for cancellation of bail. In the case of Mohanlal Nandram Choudhary vs. State of Maharashtra, 2007 Cr.L.J. 4656 (Bombay), it has been held that Sessions Court and High Court though have concurrent jurisdiction to entertain application for anticipatory bail. It is pertinent for High Court not to entertain application directly by pass­ing the Sessions Court unless applicant points out exceptional circumstances. In the case of Bholai Mistri vs. State, 1977 Cr.LJ. 492 (Calcutta) (DB), it has been held that anticipatory bail granted by the High Court can only be cancelled by it and not by the Magistrate or the Sessions Judge. The same analogy applies here that the Court which has granted the bail should be first approached for its cancellation under Section 439 (2) of the Cr.P.C. In the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra, 2011 (1) SCC 694, it has been held that it is a settled legal position that the Court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant on finding new material or cir­cumstances at any point of time. Under these circumstances the applicant should move to the same Court which granted an­ticipatory bail to the respondent No. 1. In this case the applicant has not stated any reason that why he is approaching this Court directly. The learned Additional Ses­sions Judge, Indore has granted the antici­patory bail to the applicant, therefore, he has exercised his discretion in this respect, therefore, he has to consider for the can­cellation of bail granted to the respondent. The arguments that if he considers the cancellation of bail then it will amount to reviewing of its order is baseless because this power is vested in that Court under Sec­tion 439(2) of the Cr.P.C. The applicant has argued on the basis of law laid down in the case of Pooran vs. Rambilas AIR, 2001SC 2023, but in this case the anticipatory bail was granted by the Sessions Court which was cancelled by the High Court and it was challenged before the Supreme Court and Supreme Court held that such powers can be exercised by the High Court. This case was considered on different aspect. Despite this where two fora have concur­rent powers the forum lower in the hierar­chy must be approached before the doors of the superior one are knocked. The ap­plicant has not explained any reason or ex­ceptional circumstances that why he is ap­proaching directly in the High Court? While he has an opportunity to apply for the can­cellation of bail before the same Court granting the bail. The time of the Court is precious and it should be saved for more sublime pursuit. If the applicant approaches the Court of Additional Sessions Judge definitely his expenses are reduced and he will have one more opportunity for the same relief in the High Court in the same State. Therefore, under these circumstances, this application for cancellation of bail should be filed before the same Court which granted the anticipatory bail. The applicant cannot be permitted to frogleap in the mat­ter of cancellation of bail granted by the Additional Sessions Judge. Therefore, under these circumstances, this application for cancellation of bail should be filed before the same Court which granted the anticipatory bail. The applicant cannot be permitted to frogleap in the mat­ter of cancellation of bail granted by the Additional Sessions Judge. First of all he should approach before the Court of Addi­tional Sessions Judge which granted the anticipatory bail and obtain the appropri­ate orders from that Court and thereafter he should approach the High Court. Under these circumstances, this application is not maintainable at this stage, hence it is dis­missed accordingly.