Y CHENDRASEKHARA RAO Vs. Y V KAMALA KUMARI

JUDGEMENT

(1.) A learned Single Judge has referred these matters for consideration by a Division Bench as there is divergence of judicial opinion on the question as to whether it is obligatory that an application under Section 438 of the Code of Criminal Procedure 1973 should first be filed in the Court of Session ?

(2.) All these petitions are sought to be filed under Section 438 seeking anticipatory bail. The Registry, at the stage of numbering, inter alia, has taken an objection as to the maintainability on the ground that the petitioners did not approach the Court of Session. When the matters came up for consideration of the objections raised by the Registry, a learned single Judge on 15-12-1992, after noticing the legal position that the Himachal Pradesh High Court in Mohanlal v. Prem Chand, AIR 1980 HP 36 has taken the view that it is for the petitioner to move either the Court of Session or the High Court under Section 438 but the Karnataka High Court in K. C. Iyya v. State of Karnataka, 1985 Cri LJ 214 (Karnataka), the Allahabad High Court in Onkar Nath v. State, 1976 Cri LJ 1142 (Allahabad), and the Gujarat High Court in Rameshchandra v. State of Gujarat, 1988 Cri LJ 210 (Gujarat) expressed the opinion that in exceptional cases under Section 438 it is open to the High Court to entertain applications in the first instance, felt that, as this question is frequently cropping up for consideration and as there is no authoritative pronouncement by this Court, the matter may be considered by a Division Bench. In consequence of the aforesaid order of reference, these matters have been listed before us.

(3.) In view of the importance of the question we have requested Sri. K. G. Kannabhiran, Senior Advocate, to assist us as Amicus Curiae. The question is whether an application under S. 438 is maintainable in the High Court without the party approaching the Court of Session in the first instance Section 438(1) reads :