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, 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 :

"438. Direction for grant of bail to person apprehending arrest. -

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail."

For the first time, in the Code of Criminal Procedure, 1973 power was conferred on the High Court and the Court of Session to issue directions to appropriate authority to release a person on bail in the event of his being arrested. The earlier Codes of Criminal Procedure did not have such an analogous position but it was felt that in exercise of inherent power such a direction could be granted by a High Court and on this aspect there was conflict of judicial opinion which was noticed by the Law Commission of India in its 41st Report dated September 24, 1969. The rationale for incorporating a provision for directing release of a person on bail prior to his arrest, in the words of the Law Commission, is :

"The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter."

The suggestion of the Law Commission was accepted by the Government of India and Clause 447 was incorporated in the draft Bill of the Code of Criminal Procedure, 1970. The Law Commission of India in its 48th Report, adverting to this aspect, expressed the view :

"The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised."

Quoted in Gurbaksh Singh v. State of Punjab, .

4. With certain modifications, Clause 447 of the draft Bill, 1970 emerged as Section 438 of the Code of Criminal Procedure, 1973.

5. Sri. K. G. Kannabhiran has submitted that the practice of the Registry in returning the applications filed under Section 438 on the ground that the Court of Session was not first approached is clearly illegal. When the statute has conferred concurrent jurisdiction on the High Court and the Court of Session, there is no warrant for importing a rule of practice based on hierarchical approach that the Court of Session being subordinate to the High Court, it should first be approached by the party before moving the High Court under Section 438. The existing practice is also subversive of the guaranteed fundamental right under Article 21 of the Constitution of India. Section 438 being a procedure established by law to secure personal liberty, failure to entertain an application in the High Court under Section 438 would amount to violation of personal liberty.

6. Sri. G. M. Anjaiah, learned Counsel for the petitioners, contended that the practice of the Registry is based upon the supposition that it would be more convenient for the party to approach the Court of Session, in the first instance, before approaching the High Court, and this supposition is totally without any authority of law. It is for the party to decide, depending upon his/her convenience, to choose either the Court of Session or the High Court for seeking the remedy under Section 438. In opposition to this, Sri. E. V. Bhagiratha Rao, learned Public Prosecutor, has contended that it is salutary practice to insist upon the requirement of moving the Court of Session, in the first instance; it is easier for the Public Prosecutor representing the State at the Sessions Court level to obtain, without any loss of time, instructions from the concerned authority, and from the point of view of the party such a course would be more convenient (due to factors like proximity of the forum and easy availability of Counsel) and less expensive. In exercising jurisdiction under Section 439 of the Code of Criminal Procedure, 1973 this Court all through has been insisting upon the requirement of the party approaching the Court of Session for enlargement on bail and no objection so far has been taken to such practice, and there is no valid reason why such practice should not apprehend applications filed under Section 438 as basically there is no substantial difference in the exercise of jurisdiction under these two Sections. What is good under Section 439 cannot be bad under Section 438 is the substance of his contentions.

7. The language of Section 438 is clear and unambiguous. In explicit terms it conveys power on "the High Court or the Court of Session" for granting directions. It is true, in the hierarchical set up of Courts, the High Court exercise superintendence and control over the Court of Session; the latter is subordinate to the former. Should such a subordination become a relevant factor in the interpretation of Section 438 ? The answer, in our view, is emphatically in the negative. When the language of an enactment is plain, the intention must be gathered from the language itself and departure from this will be justified only if the literal meaning leads to absurdity or undermines the purpose of the enactment : K. Veeraswamy v. Union of India, 1991 (2) Scale 150 & 170. In the face of the express language of the provision conferring concurrent jurisdiction on the High Court and the Court of Session, we do not find any justification in the High Court declining to entertain the application under S. 438 on the ground that the party has not moved the Court of Session in the first instance. Contrary to the legislative command there can be no rule of practice. If a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, under Section 438(1) it is open to him "to apply to the High Court or the Court of Session" for anticipatory bail. The provision clearly implies that not only concurrent power is conferred on the High Court and the Court of Session but choice is given to the affected person to move either of the two fora. This concurrent jurisdiction and the choice given to the affected person cannot be impaired by any restrictive interpretation, contrary to the specific language, on the strength of rule of practice.

8. There is no provision in the Criminal Rules of Practice laying down that the Court of Session, in the first instance, should be approached under Section 438. Even if there were to be a rule to that effect, it would not have any legal effect. When that being the position, we find little justification for the Registry to return the papers on the ground that the applications, in the first instance, are not maintainable in the High Court under Section 438.

9. In Balchand v. State of M.P., AIR 1977 SC 366 : (1977 Cri LJ 225), speaking for the majority Bhagwati, J., (as he then was), adverting to the power conferred under Section 438 on the "higher echelons of judicial service, namely, a Court of Session and the High Court" observed :

"It is a power exerciseable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised by the appropriate court."

Although the present question did not fall for consideration before the Supreme Court in Balchand's case, from the aforesaid observations it is apparent that the Supreme Court had no doubt as to be maintainability of an application under Section 438 in either of the two fora.

10. In Gurbaksh Singh v. State of Punjab, the Constitution Bench speaking through the learned Chief Justice Chandrachud, dealing with the amplitude of the power conferred under Section 438, rejected the view taken by the Full Bench of the Punjab High Court, which had enunciated certain clear-cut limitations on the exercise of power, observing "... By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restrains and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence ..."

Expounding the same concept, the learned Chief Justice observed :

"The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence ......"

11. The learned Chief Justice re-stated the well accepted principle that discretion conferred by a statute on a Court should not be interfered with by engrafting conditions upon such discretion which are not found in the enactment. The observations of Earl Loreburn L. C. in Hyman v. Rose, 1912 AC 623 at page 631 :

"... It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all...."

have been relied upon.

12. A Full Bench of the Himachal Pradesh High Court in Mohanlal's case (supra) has considered an identical question. Emphasising the aspect that concurrent jurisdiction has been conferred both on the High Court and the Court of Session, and that under Section 438 the High Court does not exercise revisional jurisdiction, the Full Bench expressed the view at page 38 :

"A bare reading of the section shows that no restriction, unlike Ss. 397(3) and 399(3), has been placed on a person wishing to move the High Court for anticipatory bail. A person is not required to move the Sessions Judge first. It is true that under the old Code wherever a concurrent jurisdiction was conferred on more than one court, the inferior Court was expected, as a matter of practice, to be approached first. However, in the case of anticipatory bail to force a person to move the Sessions Judge first may result in uncalled for curtailment of his right. For various reasons a person may like to move the High Court straightway and may not like to approach the Sessions Judge. Since the section relates to the liberty of a person, we would not like to impose any kind of restriction on his right to move the High Court in the first instance."

13. Another Full Bench of the Allahabad High Court in Onkarnath's case (supra), dealing with an identical situation, has taken the view that, since Section 438 gives discretionary power to grant bail, this discretion has "to be exercised according to the facts and circumstances of each case. There may be cases in which it may be considered by the High Court to be proper to entertain an application without the applicant having moved the Court of Session initially. Similarly there may be cases in which the Court may feel justified in asking the applicant to move the Sessions Court or to refer the matter to that Court. In any case all depends upon the discretion of the Judge hearing the case."

After referring to the earlier case law including the Full Bench decision in Shailabala Devi v. Emperor, AIR 1933 All 678 : (34 Cri LJ 1115), in which it was laid down that the long standing practice of the High Court not entertaining revision petitions unless District Magistrate or the Sessions Judge has been moved first was proper, and the subsequent decisions of the same Court taking the view that there is no hard and fast rule as regards filing of revision petition directly in the High Court without approaching the Sessions Judge, the Full Bench opined :

"The recent view, therefore, appears to be that the Courts should have unfettered discretion and may entertain revision notwithstanding the prevailing practice if they feel justified on the basis of facts and circumstances of each case....."

The Full Bench, therefore, concluded that -

"...... application under Section 438, Code of Criminal Procedure, 1973 may be moved in the High Court without the applicant taking recourse to the Court of Session."

14. Learned Public Prosecutor says that it will be in the interests of the petitioners themselves to approach the Court of Session in the first instance because of the easy accessibility of the forum. In the event of the Court of Session not granting anticipatory bail, it is always open to the party to approach this Court, and while exercising the discretion under Section 438 this Court will have benefit of knowing the views of the Court of Session. He also says that, as Section 439 also confers powers both on the High Court and the Court of Session concurrent, the practice followed by this Court all-through is not to entertain any application in the High Court in the first instance under Section 439. In the matter of filing of revisions under the old Code the same was the practice of this Court.

15. In Shailabala Devi v. Emperor, AIR 1933 All 678 : (34 Cri LJ 1115), a Full Bench of the Allahabad High Court highlighted the importance of the practice eclipsing the specific language of the statute. One of the questions before the Full Bench of the Allahabad High Court was whether an application in revision should be entertained by the High Court when the matter had not been taken to the District Magistrate or the Sessions Judge under Section 439 of the Code of Criminal Procedure, 1898. After referring to the practice that had grown up in the Allahabad High Court not to entertain applications direct when no District Magistrate or Sessions Judge had been moved, the Full Bench speaking through Sulaiman, Chief Justice, opined :

"In my opinion, when an application is presented before an application Judge, he should in accordance with the practice of this Court refuse to entertain it if the District Magistrate or the Sessions Judge has not been previously approached, unless there are very special reasons why the applicant should not have gone to the District Magistrate or the Sessions Judge in the first instance."

Why the Court of Session should be approached in the first instance, the learned Chief Justice explained :

"..... The District Magistrate or the Sessions Judge is on the spot and easily accessible and the record can be locally called for promptly without any loss of time and without the necessity of sending it through the post. The proceedings are also likely to be less expensive. The High Court is a superior Court and its time would not be unnecessarily spent in examining the record and in some cases even considering the evidence, when a subordinate Court has already considered, the matter and made its report. Further, the High Court would have the opinion of another Court before it which would be of help. In practice no great harm is likely to be suffered by the accused, if he is required to go to the District Magistrate or the Sessions Judge in the first instance. When a practice of this kind becomes well-known to the members of the Bar in the Mofussil and in the High Court the accused would be advised to approach the subordinate Court forthwith and not attempt to file a revision in the High Court direct. In many cases, if the District Magistrate or the Sessions Judge reports in favour of the accused, he need not be represented in the High Court, particularly when the illegality of the conviction or the severity of the sentence is patent. On the other hand, if such a salutary rule of practice were not to prevail, there would be a temptation, and even an encouragement, to accused persons to come up straight to the High Court over the head of the District Magistrate or the Sessions Judge concerned, because the latter can only report to the High Court and cannot themselves pass an order in favour of the accused. Many accused persons may therefore think it more expeditious and much cheaper to come up straight to the High Court. The High Court would then be flooded with such applications."

16. A Division Bench of the Andhra High Court in Veera Ramayya v. Venkata, AIR 1956 AP 97 : (1956 Cri LJ 71 (2)), has approvingly referred to the aforesaid opinion of the Allahabad High Court and also observed inter alia that "the legislature in conferring concurrent jurisdiction may reasonably assumed to have intended that inferior court should exercise jurisdiction in the first instance."

17. The authority of the Full Bench of the Allahabad High Court, as already noticed, was considerably weakened after the later decision of a Full Bench of that High Court in Onkar Nath's case (supra). There is no warrant for the supposition that, when concurrent jurisdiction is conferred, the legislature intended that the inferior Court should exercise jurisdiction in the first instance, especially in the field of Penal Law. After the authoritative view of the Supreme Court in Gurbaksh Singh's case (supra) : "the proof of legislative intent can best be found in the language which the legislature uses" there is no possibility for entertaining any doubt in this regard.

18. A Full Bench of the Kerala High Court in Narayanan v. Kannamma, , after noticing the aforesaid Division Bench decision of the Andhra High Court in Ramayya v. Venkata, doubted the soundness of the practice at page 614 (of (CRI LJ) : "We cannot shut our eyes to the glaring fact that the Sessions Judge or the District Magistrate is incompetent to render adequate relief to an aggrieved party invoking the revisional jurisdiction vested in them under Section 435. If the Court is satisfied that the revision is frivolous, the petition will be dismissed, but on the other hand if it is satisfied that the order of the Subordinate Magistrate has to be vacated, report to that effect will have to be forwarded to this Court under Section 438. In either case, the party will have to appear in this Court and present his case again. It is true that if the District Magistrate or the Sessions Judge reports in favour of the accused, he need not be represented in the High Court, particularly when the illegality of the conviction, or the severity of the sentence is patent. But, as a general rule the accused is also served with notice on the reference, and he appears either personally or through pleader. In all cases where the Sessions Judge or the District Magistrate refuses to make a reference, the petitioner has a right to approach this Court ....."

19. Following Ramayya's case (supra) a Full Bench of this Court in Alapati Sriramamurti In Re, (1959) 2 Andh WR 1 : (1959 Cri LJ 822), laid down the proposition that except in exceptional circumstances the High Court would not entertain revision petitions under Sections 435 and 439 of the Code of Criminal Procedure unless the Sessions Judge was moved in the first instance.

20. After the 1973 Code came into force, it is not open for a person to invoke the jurisdiction of the High Court under Section 397 if his application was rejected by the Sessions Judge. Noticing this aspect of the new Code a Division Bench of this Court in P. Abbulu v. State, 1957 Cri LJ 139 (sic), after comparing the position obtaining under the old Code of 1898, observed :

"The rule of practice laid down by the Full Bench under the old Code is inconsistent with the scheme of the new Code. The High Court can no longer follow the rule of practice and refuse to entertain a petition under Section 397(1) on the ground that the Sessions Judge has not been moved because once the Sessions Judge is moved, the High Court's jurisdiction will stand ousted by Sections 397(3) and 399(3). We are therefore of the view that the rule of practice laid down by the Full Bench in Alapati Sriramamurthy cannot any longer be followed ....."

21. A subsequent Full Bench of this Court in Re Puritipati Jagga Reddy, , laid down that the law that ".... a party who was been unsuccessful before the Sessions Judge, may seek to bring it to the notice of the High Court under Section 482 Cr.P.C. But that shall not be automatically taken notice of by the High Court. It must be scrutinised and examined whether there has been miscarriage of justice of in any particular case before it entertains any such petition filed by an unsuccessful party ....."

22. The practice followed by this Court in entertaining revision petitions under the old Code of Criminal Procedure 1898 cannot afford any guidance in the interpretation of section 438 of the present code. Which should be more convenient to the affected party cannot be conjectured by the High Court when Code confers concurrent jurisdiction both on the High Court and the Court of Session. If the party who intends to move an application under Section 438 feels that the moving the Court of Session is more convenient, he may do so. But if he thinks that approaching the High Court is more convenient and less time-consuming he shall not be precluded from doing so. Situations may conceivably arise when a person may find it more efficacious to approach the High Court under Section 438. A resident of Srikakulam or Visakhapatnam, if apprehends arrest when he is in Hyderabad, may find it more convention to move the High Court under Section 438 for anticipatory bail without any loss of time instead of moving the Court of Session of his native district. It is not possible to visualise comprehensively what precise reasons impel persons to invoke jurisdiction of the High Court, in the first instance, under Section 438.

23. The Public Prosecutor is correct in his submission that under Section 439 both the High Court and the Court of Session are empowered to grant bail to a person in custody. He contends that, because under Section 439 the High Court is not entertaining applications, in the first instance, the same practice must be upheld in respect of applications under Section 438. We are unable to agree. The question whether an application under Section 439 can be filed, in the first instance, in the High Court is not before us for adjudication. We, therefore, do not want to go into this aspect which does not arise before us and so we cannot accept the supposition that the present practice as regards entertaining applications under Section 439 is sound and valid. As and when, that question arises this Court will go into it. But, in the present reference, we are not inclined to decide that question. Apart from the fact that power under Section 439 is exercised for directing the release on bail of a person in custody, we may notice certain other important features of Section 439. In respect of a person in custody already the appropriate Magistrate has passed an order under Section 167 authorising his custody (either judicial or police custody) after applying his mind by examining copies of entries in the diary submitted by the concerned police officer. He has gone into the question whether there are adequate grounds for authorising detention in custody for total period of not exceeding sixty days or ninety days, as the case may be, as enjoined in Proviso (a) to sub-section (2) of Section 167 of the Code. Viewed in this light, there is a discernible degree of difference as to the immediacy in moving the applications under sections 438 and 439 : compared to section 438, the sense of urgency in Section 439 is less. Threat of being arrested on an accusation of having committed a non-bailable offence impels a person to rush to the Court under Section 438, because of fear of implication by rivals in false cases with the object of disgracing him, as very realistically observed by the Law Commission of India in its 41st report dated 24th September, 1969.

24. Protection of life and personal liberty is a guaranteed fundamental right under Article 21 of the Constitution of India. It enjoins that no person shall be deprived of his life and personal liberty except according to the procedure established by law. The protective umbrella of Article 21 comprehends many facets of personal liberty. As the Supreme Court recognised in Gurbaksh Singh's case (supra) denial of bail amounts to deprivation of personal liberty (paragraph 27 at page 1646). When the procedure incorporated under Section 438 in unequivocal language confers power both on the High Court and the Court of Session to grant anticipatory bail, denial of the right of move the High Court, in the first instance, clearly amounts to violation of the guaranteed fundamental right under Article 21 of the Constitution of India.

25. There is a little merit in the submission of the learned Public Prosecutor that, if the High Court entertains petitions under Section 438, in the first instance, without the Court of Session being moved earlier, this Court will be flooded with applications. The apprehension is clearly unfounded. If this Court has to exercise discretion, in the first instance, under Section 438, there is no warrant to predicate that the exercise of the discretion would result in large number of persons being granted relief under Section 438. In this context, we must clarify the legal position regarding the exercise of discretion under Section 438. Citing K. Dayanand Rao v. State of Andhra Pradesh, , the learned Public Prosecutor says that, even if one does not have any material to believe that he may be arrested on an accusation of having committed a non-bailable offence, he can still move this Court and obtain anticipatory bail to ensure a possible future arrest. The aforesaid case does not warrant such an inference. After considering Gurubaksh Singh's case (supra), the Division Bench held that it is not a condition precedent for passing an order under Section 438, that there should be in existence of a crime number or FIR, against the person on whose behalf the petition is filed. From this it is not possible to infer that without any basis whatsoever any one can move this Court under Section 438 and obtain anticipatory bail. The Supreme Court in Gurubaksh Singh's case has ruled categorically at page 1141 (of Cri LJ) :

".... The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest ...."

These pertinent observations have been noticed by the Division Bench of this Court and, therefore, it is not possible to interpret the Division bench judgment as laying down the proposition that even in the absence of any material, relief can be granted under Section 438 by this Court. The words 'reason to believe' occurring in Section 438 obligate the existence of objective material for the subjective satisfaction of the person apprehending arrest. That objective material must be capable of being examined by the Court. Only then the Court, if satisfied, will grant relief under Section 438 but not otherwise.

26. When the words are plain in an enactment, reliance on usage for interpreting the same is forbidden. It is only when the provision of law is silent on some aspects but speaks on some other aspects, usage may well supply the defect. (See 'Craies On Statute Law', Seventh Edition page 153).

27. Whether relief can be granted under Section 438 in the absence of registration of crime cannot be subject-matter of objection by the Registry; that must be decided by the Court on the judicial side.

28. For the foregoing reasons we hold that it is not obligatory under Section 438 to move the Court of Session in the first instance. It is always open to this Court when an application is filed under Section 438, without first moving the Court of Session, to consider all the circumstances, and if the situation warrants, this Court can direct the party to move the Court of Session. Passing of such an order in consequence of exercise of discretion is different from insisting upon the party to move the Court of Session in the first instance as an inflexible rule of practice. The existing practice of the Registry in returning applications filed under Section 438 on the ground that the Court of Session is not moved in the first instance, is clearly impermissible in law.

29. In view of our answer to the reference, we direct the Office to number the petitions if otherwise the same are in order and post them before a learned single Judge for disposal in accordance with law.

30. We gratefully acknowledge the valuable assistance rendered by Sri. K. G. Kannabhiran, Senior Advocate, who readily acceded to our request to argue the case as Amicus Curiae.

31. Reference answered accordingly.