USMAN Vs. SUB INSPECTOR OF POLICE

JUDGEMENT

(1.) Does an accused apprehending arrest or arrested already have an unfettered option to approach this Court under S.438 or 439 Crl. P.C. Cannot this Court in the interests of justice, expediency and convenience insist, (re)introduce and enforce compliance with the salutory and accepted rule of procedure that where two fora have concurrent powers the forum lower in the hierarchy must be approached before the doors of the superior one are knocked These interesting questions arise for determination in these Crl. M.Cs.

(2.) The facts scenario is simple. Crl. M.C. 3265 of 2003 is an application for anticipatory bail under S.438 Crl. P.C. The accused apprehends arrest in a crime registered under S.498A and S.306 I.P.C. Crl. M.C. 3391 of 2003 is a petition for regular bail under S.439 Crl. P.C. where the accused has already been arrested on 4.4.2003 on the allegation that he has committed offences punishable under S.55(a) of the Kerala Abkari Act.

(3.) As this Court sitting as the vacation court entertained doubts about the desirability of approving the course adopted in many cases that came up for consideration of the accused approaching this Court directly with applications under S.438 and S.439 without and before approaching the Court of Sessions which has concurrent jurisdiction under these statutory provisions, the learned Public Prosecutor and the learned counsel were requested to advance arguments on this interesting legal question. Most of the counsel chose to adopt the very convenient course of getting their applications dismissed as withdrawn with liberty to move the Sessions Court. Considering the importance and the significance of the question raised, counsel who have appeared before me on 29.4.2003, 30.4.2003 and 2.5.2003 have all been permitted to advance detailed arguments if any on this question to assist the court.