MAKWANA SAMBHUBHAI CHETHABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr. D. N. Patel, Asstt. Public Prosecutor waives service of Rule.

(2.) This is an application under Sec. 439(1) of the Criminal Procedure Code by the petitioner who has been accused of the offence of murder. It appears that the applicant had earlier made similar application to the Sessions Court, Bhavnagar, and by a reasoned order dated 10/12/1991, the learned Additional Sessions Judge, Bhavnagar had rejected the petitioner's application being Miscellaneous Criminal Application No. 819 of 1991. The main accusation levelled against the petitioner is that, on the day of the incident, he had dealt axe blows to Raghav and as a result of the axe blow given to him on his head, Raghav died. According to the version emanating from F.I.R and other police papers, three persons had accosted Raghav who was going on a motor-cycle and way-laid him inflicting injuries with various weapons resulting in his death.

(3.) It was submitted by the learned Counsel appearing for the applicant that this second application under Sec. 439(1) of the Criminal Procedure Code would directly lie before the High Court because the High Court also has a special power under that provision to release such person on bail. There can be no dispute about the fact that any person accused of an offence and in custody may be directed to be released on bail by the High Court or a Court of Sessions. Therefore, a person accused of an offence may directly apply to the High Court for bail and the High Court in its discretion can entertain such an application, though, ordinarily, an application ought to be made first to the Sessions Court which is a Court subordinate to the High Court. Once, however, an application is made to the Sessions Court and is considered on merits culminating in an order made by the Sessions Court, the power, contemplated to be exercised under Sec. 439(1), is exercised by that Court. When the Sessions Court rejects an application for bail made under Sec. 439(1) on merits, an order refusing to grant bail would be a judicial order. The Criminal Procedure Code makes elaborate provisions for appeals and revisions for challenging judicial orders. In all the matters where appeals or revisions lie, subject to the conditions prescribed for the exercise of such powers, the High Court can pass appropriate orders exercising powers similar to those of the subordinate Courts while setting aside their orders. Judicial discipline demands that a judicial order made by the subordinate Sessions Court having powers concurrent to those of the High Court should be examined when the concurrent power of the High Court is invoked under Sec. 439(1) of the Code. The scheme of the Code clearly indicates that the judicial orders made by the subordinate Courts hold the field until they are set aside by the higher judicial forum. The requirement to challenge the order of the subordinate Court in no way detracts from the power conferred on the High Court under Sec. 439(1) of the Code. Therefore, for effective exercise of the powers of the High Court under Sec. 439(1), the validity of the order of the Sessions Court rejecting bail has to be examined. That order passed in exercise of the power under Sec. 439(1) would, as stated above, govern the field until set aside and substituted by an order made by the High Court under Sec. 439(1) of the Code.