ONKAR NATH ASRAWAL Vs. STATE

JUDGEMENT

(1.) THIS reference arises out of two applications for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973. Criminal Misc. Bail Application No. 4386 of 1975 is by Onkar Nath Agrawal, Rajendra Nath Agrawal and Mahendra Nath Agrawal, who were alleged to have committed a non-bailable offence under Section 7 read with Section 3 of the Essential Commodities Act and Tractors (Distribution and Sale) Control Order, 1971. Criminal Misc. Bail Application No. 4408 of 1975 is by Jyoti Prasad Misra, who apprehended his arrest for an offence under Rule 43 read with Rule 36 of the Defence of India Rules and under Section 121 of the Indian Penal Code.

(2.) A preliminary objection as to the maintainability of the applications in the High Court appears to have been taken by the learned Government Advocate inasmuch as the applicants did not move the Sessions Judge concerned before making an application for anticipatory bail in the High Court. Accordingly the following question has been referred to us:

(3.) LEARNED Government Advocate has urged that an application under Section 439 of the Code of Criminal Procedure, 1973, is not to be entertained in the High Court unless the applicant has approached the Sessions Judge in the first instance inasmuch as there is a practice in the High Court to that effect. He has relied upon Shailabala Devi v. Emperor AIR 1933 All 678 : 34 Cri LJ 1115 (FB), Hashim v. Notified Area Moghalsarai AIR 1933 All 283 : 34 Cri LJ 1048, S. P. Dubay v. Narsingh Bahadur 1960 All LJ 880 : 1961 (2) Cri LJ 185 and Municipal Board v. Bhim Singh