BALAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Is an applicant seeking bail bound to approach the Court of Sessions before he can move the High Court? Should the High Court refuse to entertain a petition under Section 438 or 439 of the Criminal Procedure Code directly unless 'exceptional circumstances' are shown? This is the core of the controversy in this case. The sequence of events leading to this 'reference' to the Division Bench may be briefly noticed.

(2.) A petition for the grant of anticipatory bail viz. Cr.M.C. No. 3265/2003 was filed by Usman. The applicant apprehended arrest in a case registered under Sections 498A and 306, IPC. Similarly, there was another application viz. Cri. M.C. No. 3391/2003. This had been filed under Section 439. The applicant had been arrested on the allegation that he was guilty of the offence punishable under Section 55(a) of the Kerala Abkari Act. Both the applications were decided by a learned single Judge of this Court vide order dated May 3, 2003. On a consideration of the matter, the learned Judge had taken the view that "in respect of bail applications, 'frog leaping' cannot be permitted." While it was acknowledged that this Court had the "Jurisdictlonal competence.... to consider and exercise powers in an application for bail/anticipatory bail under Section 438/ 439 of the Criminal Procedure Code at the first instance," it was observed that there was need for a "salutary procedural self-imposed rule or restriction." Thus, it was held that the "High Court shall not ordinarily (and except under exceptional circumstances) exercise its powers under Sections 438 and 439 of Code of Criminal Procedure without and before the Sessions Court having concurrent jurisdiction is moved for identical relief." It was further observed that the Court "must be very careful and circumspect in identifying such exceptional cases." To effectuate this order, the learned Judge gave the following directions :

(3.) On June 26, 2003, a Bail Application was put up before another Court. The learned Judge noticed the above-mentioned directions and expressed certain reservations. Thus, the matter was referred to the Division Bench.