HARISHANKAR Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS is a petition filed by the petitioners under section 439 of the Code of Criminal Procedure for their release on bail.

(2.) AT the time of hearing of this petition learned counsel who appeared for the State filed an application raising a preliminary objection on the maintainability of this petition. The objection raised on behalf of the State is that as these applicants have earlier moved the Sessions Court under section 439 of the Code of Criminal Procedure for grant of bail, they cannot now file an application before this Court under section 439 as they could move either to High Court or Court of Sessions and having moved the Court of Sessions their right to move for bail under section 439 is exhausted. Learned counsel for the State in support of his contention placed reliance on a decision reported in Amiya Kumar Sen v. State of West Bengal (1979 Cr. L. J. 288).

(3.) IT was also contended that similar language is used in section 397 of the Code but as the Legislature intended that the revisional powers could be exercised only by the Sessions Court or the High Court and both could not exercise the powers against the same order clause (3) has been specifically provided in section 397. This clearly goes to show that where ever the Legislature intended to restrict the exercise of jurisdiction, they have specifically provided and this also goes to show that the Legislature used the word "or" in a sense which means "and". It was also contended that a similar language was used in section 498 and section 498 has been on the statute book for a long and there is no decision which could be referred to support the objection raised by the learned counsel for the State.