MANZOOR AHMED Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a bail application Under Section 438 Cr.PC. on behalf or Manzoor Ahmed against whom the Police is Investigating a case Under Sections 406 and 420 I.P.C. The petitioner has moved this Court Under Section 438 without first moving the Court of Sessions. This Court has consistently held that the Sessions Court should first be moved before an application is moved before the High Court Under Section 438 Cr.PC. Reference in this connection may be made to Bhoora Ram v. The State of Rajasthan 1976 Raj. Cri. Cases 222 and Hazi Alisher v. State of Rajasthan 1976 Cri. LJ 1658. However, the learned counsel for the petitioners has placed before me authorities of other courts, namely, Onkar Nath v. State 1976 Cri.LJ 1142, Mohan Lal v. Prem Chand AIR 1980 MP 36 and Jagannath v. State of Maharashtra 1981 Cri.LJ 1838. I have carefully considered these authorities but I am of the opinion that the view taken by this Court in the aforesaid cases should be adhered to. In Onkar Nath's case (supra), a Full Bench of the Allahabad High Court had considered the matter and was of the opinion that the powers Under Section 438 are such which can be concurrently exercised by the Court of Sessions as also by the High Court and, therefore, there is no legal bar in entertaining an application filed direct before the High Court Under Section 438 Cr.PC. without first moving the Court of Sessions. However, their Lordships observed asunder:

(2.) IN these circumstances, I am clearly of the opinion that the petitioner should have first moved the Court of Sessions before coming to this Court under Section 438 Cr.PC. The petitioner has not been able to make out any extra ordinary reason why this practice should not be adhered to in this case. He has merely stated that on account of the atmosphere created by the complainant department, he is not likely to receive justice at Bhilwara and the learned Sessions Judge, according to him, is also of the opinion that Section 438 Cr.PC. is not meant for that court. The first reason is mere unfounded apprehension and the second is, to say the least, preposterous.