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2015 DIGILAW 450 (GAU)

Kwmta Gwra Brahma v. State of Assam

2015-04-10

K.SREEDHAR RAO, PRASANTA KUMAR SAIKIA

body2015
JUDGMENT 1. The learned single Judge in State of Tripura v. Samuel Ruhul Askar alias Kutti Mia [(2001) 2 GLR 546] has held that an accused before approaching this Court under section 438 of the Cr.P.C. and 439 of the Cr.P.C. should exhaust his remedy before the Sessions Judge and then file application before this Court. The other learned single Judges in Mayur Bordoloi v. State of Assam [(2013) 6 GLR 201] and in Shri Kashinath Sarkar and 4 others v. The State of Tripura [(1984) 2 GLR 93] have taken a contra view in the matter. Therefore this case related to bail application the Division Bench has seized of the matter for deciding the following question of law. (i) Whether it is essential that a person/accused before approaching the High Court for grant of anticipatory bail under section 438 of the Cr.P.C. and grant of bail under section 439 of the Cr.P.C. should exhaust his remedies before the Sessions Court and then file application before the High Court. 2. The provisions of sections 438 and 439 of the Code of Criminal Procedure, 1973 are reproduced hereunder for convenient reference. "438. Direction for grant of bail to person apprehending arrest. 2. The provisions of sections 438 and 439 of the Code of Criminal Procedure, 1973 are reproduced hereunder for convenient reference. "438. Direction for grant of bail to person apprehending arrest. (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or Court of Session for a direction under this Section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following of actors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail; Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the applicant for grant of anticipatory bail, it shall be open to an officer-in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. 439. 439. Special powers of High Court or Court of Session regarding bail.- (1) A High Court or Court of Session may direct-- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody" 3. Senior counsels Sri N. Dutta and Sri B.D. Konwar were appointed as amicus curiae to assist the Court in the matter. 4. Sri N. Dutta and Sri B.D. Konwar, the senior counsels for the petitioner and for the state the state public prosecutor submitted their arguments. 5. The power and jurisdiction of the Sessions Court and the High Court is concurrent in granting anticipatory bail under section 438 of the Cr.P.C. and bail however under section 439 of the Cr.P.C. It is seen that in majority of the bail applications filed before the High Court have been filed directly without exhausting the remedy before the Sessions Court. Therefore the question that arose for consideration is to the effect that whether it was essential that a person/accused before approaching the High Court for grant of anticipatory bail (438 of the Cr.P.C.) and bail (439 of the Cr.P.C.) should exhaust his remedy before the Sessions Court and then file application before the High Court. 6. Therefore the question that arose for consideration is to the effect that whether it was essential that a person/accused before approaching the High Court for grant of anticipatory bail (438 of the Cr.P.C.) and bail (439 of the Cr.P.C.) should exhaust his remedy before the Sessions Court and then file application before the High Court. 6. In the decisions of the Madhya Pradesh High Court in Abdul Karim Khan v. State of Madhya Pradesh ( AIR 1960 MP 54 ), the Rajasthan High Court in Hajialisher v. State of Rajasthan (1976 CriLJ 1658), the Punjab and Haryana High Court in Chhajju Ram Godara and others v. State of Haryana and another (1978 CriLJ 608), the Bombay High Court in Jagannath v. State of Maharashtra (1981 CriLJ 1808), the Karnataka High Court in K.C. Iyya and etc. v. State of Karnataka (1985 CriLJ 214), the Gujarat High Court in Rameshchandra Kashiram Vora and etc. v. State of Gujarat and another (1988 CriLJ 210), the Madhya Pradesh High Court in Smt. Manisha Neema v. State of M.P. ( 2003(2) Crimes 402 ), and the Kerala High Court in Mathew Zacharish v. State of Kerala (1974 CriLJ 1198) and Usman v. The Sub-Inspector of Police and another (2003 CriLJ 3928), it is held that the accused should first exhaust his remedy before the Sessions Court before making an application before the High Court for grant of anticipatory bail under section 438 of the Cr.P.C. and bail under section 439 of the Cr.P.C. 7. The reasons stated in the above decisions, by and large, are as follows. (i) Whenever the concurrent jurisdiction is vested by the statute simultaneously in two courts of whom one is superior to the other, it is appropriate that the party should apply to the inferior court first because the superior court would have the advantage of considering the opinion of the inferior court when occasion arises for exercise of other's jurisdiction in the matter. (ii) The inferior court normally will be the nearest accessible court. Therefore it is necessary that the applications be made before the inferior court. (iii) The superior court is flooded with heavy pending cases. (ii) The inferior court normally will be the nearest accessible court. Therefore it is necessary that the applications be made before the inferior court. (iii) The superior court is flooded with heavy pending cases. It would be more appropriate that the inferior court has to be approached in the first instance so that the superior court will have sufficient time to deal with the other pending cases which require serious judicial attention for a just and expeditious disposal. (vi) The grant of anticipatory bail or bail is by and large requires appreciation and scrutiny of facts to see whether a person/accused is entitled to bail or not. 8. In the above decisions, however, it is laid down that it is not a strict rule that the party should first approach the Sessions Court and then move the High Court under section 438 of the Cr.P.C. or 439 of the Cr.P.C. However in exceptional circumstances it is said that the party can move the High Court directly without approaching the Sessions Court. 9. Per contra, a Full Bench of the Allahabad High Court in para 8 of its judgment in Onkar Nath Asrawal and others v. State (1976 CriLJ 1142) has made the following observations. "8. It may, however, be mentioned that inasmuch as Section 438 of the Code of Criminal Procedure, 1973 gives 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 Session initially. Similarly there may be cases in which the Court may feel justified in asking the applicant to move the Sealing Court or to refer the matter to that Court. In any case all depends upon the discretion of the Judge hearing the case". 10. The High Court of Himachal Pradesh in Mohan Lal and others etc v. Prem Chand and others etc ( AIR 1980 HP 36 ) has held that it is not necessary that the applicant should be asked to apply to the Sessions Judge before making an application to the High Court for anticipatory bail under section 438 of the Cr.P.C. However in para 11 of its judgment the High Court has made the following observations. "11. "11. A bare reading of the section shows that no restriction, unlike Sections 397(3) and 399(3), has been placed on a person wishing to move the High Court for anticipatory bail. A person is not required to move the Sessions Judge first. It is true that under the old Code whenever 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 the High Court in the first instance". 11. The High Court of Calcutta in Diptendu Nayek and others v. State of West Bengal (1993 CWN 119) has held that an accused can move anticipatory bail before the High Court even though his application under section 438 of the Cr.P.C. is rejected by the Sessions Judge: while doing so, the petitioner cannot apply under the revisional jurisdiction of the High Court but can apply under section 438 of the Cr.P.C. 12. The Andhra Pradesh High Court in Y. Chendrasekhara Rao and others v. Y.V. Kamala Kumari and others (1993 CriLJ 3508) has held that the provisions of section 438 of the Cr.P.C. conferred power both in the High Court and the Sessions Court for anticipatory bail. As for the denial of moving the High Court in the first instance, the High Court in para 22 of its judgment has made the following observations. "22. The practice followed by this Court in entertaining revision petitions under the Code of Criminal Procedure, 1898 cannot afford any guidance in the interpretation of Section 438 of the present Code. Which should be more convenient to the affected party cannot be conjectured by the High Court when Code confers concurrent jurisdiction both on the High Court and the Court of Session. If the party who intends to move an application under Section 438 feels that the moving the Court of Session is more convenient, he may do so. Which should be more convenient to the affected party cannot be conjectured by the High Court when Code confers concurrent jurisdiction both on the High Court and the Court of Session. If the party who intends to move an application under Section 438 feels that the moving the Court of Session is more convenient, he may do so. But if he thinks that approaching the High Court is more convenient and less time-consuming he shall not be precluded from doing so. Situations may conceivable arise when a person may find it more efficacious to approach the High Court under Section 438. A resident of Srikakulam or Visakhapatnam, if apprehends arrest when he is in Hyderabad, may find it more convenient to move the High Court under Section 438 for anticipatory bail without any loss of time instead of moving the Court of Session of his native district. It is not possible to visualise comprehensively what precise reasons impel persons to invoke jurisdiction of the High Court, in the first instance, under Section 438". 13. The High Court of Kerala in para 12 and 13 of its judgment in Balan v. State of Kerala (2004 CriLJ 3427) has made the following observations. "12. It is undoubtedly true that the courts have not commended 'frog leaping'. This view was expressed in Mathew Zacharia v. State of Kerala, 1974 KLT 472, while examining a petition under Section 497. The Court was obviously considering a matter before Section 438 had been brought on the Statute book. The obvious reason was that the Code did not confer the right to choose. Even otherwise, the Courts respect the principle of hierarchy. This, however, cannot mean that the doors of this Court shall be shut out to a person whose liberty is under an imminent threat and he will be allowed entry only after the bail has been declined by the Sessions Court. Accepting this principle may result in denial of liberty. We need to remember that for a majority of people, the sight of prison is painful. The thought of the trauma is terrifying. It creates a terror in the mind. The court cannot be mindless of such a person's plight. The need to save him from the shame and shock has to be kept in view. 13. Thus, it is no surprise that the statute has given the applicant a choice. The thought of the trauma is terrifying. It creates a terror in the mind. The court cannot be mindless of such a person's plight. The need to save him from the shame and shock has to be kept in view. 13. Thus, it is no surprise that the statute has given the applicant a choice. On a plain reading of the statutory provisions, it is clear that the right to choose the forum is with the person who is apprehending arrest or has been actually arrested. This right should not be curtailed by any self-imposed restraint. Such restrictions, as mentioned in the order, can result in more harm than good and defeat the object with which the provision was introduced". 14. After carefully analyzing the ratio laid down in the above decisions the salient aspect that emerges is to the effect that- (i) Although under section 438 of the Cr.P.C. a person/accused is given the right to move an anticipatory bail either before the Court of Sessions or the High Court it is always at the discretion of the High Court that whether to entertain the application or not. There is no absolute right on the person/accused to insist that the High Court should decide his application on merits: it all depends upon the facts and circumstances of each case. (ii) In so far as the provisions of section 439 are concerned no option to choose the forum is given to the person/accused unlike under section 438. When the inferior court and the superior court are invested with concurrent jurisdiction, normally a person/accused has to exhaust his remedy before the inferior court. If the person/accused is aggrieved by the order of the inferior court then he can approach the High Court, in which event the High Court will have the benefit of considering the reasons and opinion given by the inferior court. The objective of investing concurrent jurisdiction in the Sessions Court and in the High Court is basically for the reason that the legislators reposed trust in the wisdom of the Sessions Judges who by their longstanding experience would have acquired and equipped with necessary skills to exercise the powers under the concurrent jurisdiction. The suitable and eligible Sessions Judges would also be elevated to the High Court. The objective of investing concurrent jurisdiction is to share the serious responsibility and powers of the High Court. The suitable and eligible Sessions Judges would also be elevated to the High Court. The objective of investing concurrent jurisdiction is to share the serious responsibility and powers of the High Court. (iii) For consideration of bail applications a lot of miscellaneous work is to be done like going through the case-diary, remand applications, statements of the witnesses recorded, etc. Many a time the investigating officers from different places of the state have to summon case-diary and it becomes a more time-consuming exercise. The Sessions Court which are nearest to the police stations in its division where investigations are done it is easy for the Sessions Court to summon the case-diary and investigation papers for considering the bail applications. Therefore it is necessary that the Sessions Court which is invested with the concurrent jurisdiction could effectively deal with all preliminary work of scrutiny of the investigation material while considering the bail applications. In the event of rejection of bail application by the Sessions Court the persons/accused can still move the High Court for grant of anticipatory bail under section 438 of the Cr.P.C. or bail under section 439 of the Cr.P.C., as the case may be. (iv) The High Court in its writ jurisdiction will have heavy filings questioning the actions of the government and the statutory authorities etc. Besides, the High Court as a court of appeal and second appeal will have to deal with civil appeals, criminal appeals. Besides, the High Court has revisional and inherent jurisdiction under the Code of Criminal Procedure. The High Court under Article 227 of the Constitution of India will have to consider the orders of the tribunals and quasi-judicial authorities; besides, shall have to consider the orders passed by the Civil Courts in the matter of interlocutory application orders. The quality of work the High Court done at the High Court is of very important nature which requires laying down the law on the varied and several cases that come before the High Court. (v) The number of pendency of cases at the High Court would be usually high and a large chunk of the judicial time has to be devoted to several subjects where questions of law have to be resolved and ratio has to be laid down as precedent to be followed by the lower court. (v) The number of pendency of cases at the High Court would be usually high and a large chunk of the judicial time has to be devoted to several subjects where questions of law have to be resolved and ratio has to be laid down as precedent to be followed by the lower court. Therefore in order to avoid the avoidable additional burden on its board it is just and necessary that a person/accused be asked to approach the Sessions Court: if he is able to get the relief before the Sessions Court it would be unnecessary to approach the High Court. (vi) The practice under the Code of Criminal Procedure earlier to the 1973s was that in the matters of revision and bail concurrent jurisdiction was invested in the High Court and the Sessions Court. It was the practice that a person/accused had to exhaust his remedy before the Sessions Court before he invoked the revisional jurisdiction or sought bail under section 498 of the Cr.P.C. before the High Court. 15. The profile of the filing of bail application before the Gauhati High Court from the year 2004 to 2014 (31.10.2014) is as follows. Year Institution 2004 2778 2005 3288 2006 3745 2007 4934 2008 6022 2009 5171 2010 6543 2011 7049 2012 9120 2013 9622 2014 7424 16. The above figures disclose that yearly there is great deal of increase in the number of filing of bail application directly before the High Court and it consumes a large chunk of the judicial time for disposal of bail applications only. Almost 2-3 benches are regularly constituted to deal with the bail applications. There is huge pendency of criminal appeal before the Division Bench, and criminal appeal, criminal revision and criminal petition (482 of the Cr.P.C.) before the single Judges, besides there is huge pendency of civil appeals. Not usually this High Court has always functioned with full sanctioned strength. There is always dearth of Judges. There are currently three outlying benches where Judges have to be deputed to deal with the work at the outlying benches. 17. It is therefore necessary that normally a person/accused should file an anticipatory bail application under section 438 of the Cr.P.C. or a bail application under section 439 of the Cr.P.C. before the Sessions Court and thereafter he can approach the High Court. However, this is not an inviolable rule. 17. It is therefore necessary that normally a person/accused should file an anticipatory bail application under section 438 of the Cr.P.C. or a bail application under section 439 of the Cr.P.C. before the Sessions Court and thereafter he can approach the High Court. However, this is not an inviolable rule. In exceptional circumstances a person/accused can directly approach the High Court. The following are the circumstances under which a person/accused can directly approach the High Court. (i) When a person/accused from other State has to move an application for grant of anticipatory bail under section 438 of the Cr.P.C., if it is convenient for him to move such application before the High Court directly, which is nearer to any point of distance, such application should not be rejected on the ground that he can approach the Sessions Court. (ii) Whenever in a Sessions' jurisdiction a particular incident or crime has attracted a lot of public and media attention with an adverse public opinion having been built up against the person/accused in such cases the 438-CrPC-applications and 439-Cr.P.C.-applications can be filed directly before the High Court. (iii) When the Sessions Court has already rejected an application for grant of bail under section 439 of the Cr.P.C. where one of the persons/accused is similarly placed it is not necessary that the similarly-placed person/accused should approach the Sessions Court for grant of bail; he can file an application before the High Court under section 439 of the Cr.P.C. 18. The above circumstances are illustrative and not exhaustive. There could be other exceptional circumstances which would always depend upon the facts and circumstances of each case. 19. In view of the reasons and discussions made above it is held that normally a person/accused should exhaust his remedy under section 438 or 439 of the Cr.P.C. before the Sessions Judge before making an application before the High Court under section 438 or 439 of the Cr.P.C. However in exceptional illustrated circumstances a person/accused can approach the High Court without exhausting his remedy before the Sessions Judge. 20. With the above observations we are now dealing with the bail application in question. 21. The petitioner is in custody for committing offence under sections 387, 507, read with section 34 of the IPC, with the case crime number 56/2014 on the file of Serfanguri police station in Kokrajhar district. 22. 20. With the above observations we are now dealing with the bail application in question. 21. The petitioner is in custody for committing offence under sections 387, 507, read with section 34 of the IPC, with the case crime number 56/2014 on the file of Serfanguri police station in Kokrajhar district. 22. It appears that grave allegations are made in the complaint. The petitioner has filed an application without exhausting his remedy of filing an application before the Sessions Court. For the reasons stated above it is just and necessary that the petitioner should exhaust his remedy before the Sessions Judge and then approach the High Court. Accordingly the petition is disposed of. 23. The fee of the amicus curiae is fixed at Rs. 7000/- each, which will be paid to them by the State. 24. Registry is directed to communicate this order to the Magistrates and the Sessions Judges in the State. Disposed off.