JOGINDER SINGH ETC. Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) These are seven applications under Sec. 438 of the Code of Criminal Procedure, 1973, (hereinafter referred to as the new Code) for grant of bail to persons apprehending arrest under various non -bailable offences for which they have reason to believe that they may be arrested. When notices were issued to the learned Advocate -General he sustained a preliminary objection that these applications should have been filed, in the first instance, before the Court of Sessions and only thereafter the applicants could have asked the High Court to make an order under Sec. 438 of the new Code. The objection of the learned Advocate -General is essentially based on a rule of practice laid down by this Court in Gulam Ali v/s. State, 1972 H.L.R. 8. As the question was likely to arise in a number of cases and was considered of some importance, the same was referred to a larger bench. This is how we are called upon to decide the question in controversy,

(2.) At the very outset, a little comparison of the corresponding provisions of revision as well as bail enumerated in the Code of Criminal Procedure, 1898, (hereinafter to be referred to as the old Code) and those in the new Code be made. First we take up the provisions regarding revision, Sec. 435 of the old Code gave revisional powers to High Court or Court of Sessions to call for and examine the record of any proceeding before any inferior criminal court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceeding of any such inferior court. There is no restriction as to revision against interlocutory order or as to second revision before the High Court after the first has been preferred before the Court of Sessions. The corresponding Sec. 397 of the new Code engrafts both these restrictions. No revision against interlocutory order is permissible and if an application in revision has been made to the Court of Sessions a further application cannot be made to the High Court. In place of Sec. 438 of the old Code, Sec. 399 of the new Code has been provided for and the powers of Courts of Sessions have been made at par with the powers of the High Court under Sec. 401 of the new Code and as a necessary corollary to that, no second revision before the High Court is permissible. The powers of the High Court under Sec. 439 of the old Code are almost the same as the powers of that court given under Sec. 401 of the new Code. But a new Sec. 402 of the new Code has been provided for, but that applies to a case of conviction and in that case also a second revision to High Court is not permissible. In the present controversy, however, we are not concerned with Sec. 402 of the new Code.

(3.) As regards the provisions regarding bail, Sec. 497 of the old Code dealt with non bailable offences where the person accused appears before a court either under arrest or otherwise. In those cases where he is not arrested, he may be suspected of the commission of any non -bailable offence. Under certain conditions the court can grant bail to such an accused person. Sec. 437 of the new Code has carefully avoided the words "suspected of the commission of any non -bailable offence" because Sec. 438 of the new Code has been provided for to look after that contingency -what we call the contingency of getting anticipatory bail. There was some confusion in the old Code as to the grant of anticipatory bail and some of the courts granted such bails under Sec. 497 of the old Code by taking aid of the words "suspected of the commission of any non -bailable offence" or under Sec. 498 which gave the jurisdiction to grant bail to a High Court or to a Court of Sessions "in any case" which obviously included a case where the person is not in custody. In order to set at rest that controversy, Sec. 438 of the new Code has been provided and that Sec. clearly deals with those persons who are apprehensive of arrest for a non -bailable offence and who are not yet arrested for any offence. The present applications deal with such type of cases. Sec. 437 of the new Code does not deal with High Court or Court of Sessions, and deals with the court of the Magistrate, and we are not concerned with it. Sec. 498 of the old Code has been bifurcated in two Ss. 438 and 439 of the new Code. The High Court or the Court of Sessions can grant bail under Sec. 438 if the person is not in custody, while under Sec. 439 if the person is in custody.