Smt. Savitri Samson v. State Of Karnataka

Bannurmath, J.:—

At the stage of consideration of the petition learned Additional State Public Prosecutor raised preliminary objection regarding maintainability of the present petition. He contended that the petitioner has already approached the Sessions Court, Gulbarga, in a petition, Criminal Misc. No. 265/2001, filed under Section 438 Cr. P.C apprehending her arrest in Cr. Nos. 16/2001 and 17/2001 and as the same is pending adjudication, present petition is not at all maintainable. He also submitted that in fact there is an attempt on the part of the petitioner and her Advocate in the trial Court to mislead the Court. Elaborating the same, he contended that on issuance of notice by the learned Sessions Judge to the learned Prosecutor, the filing of two petitions simultaneously was brought to the notice of the Court and when the Court enquired, as is noted in the order sheet, the Counsel appearing for the petitioner in the Session Court has submitted that the Crl. Misc. 265/2001 was the only application filed under Section 438 Cr. P.C for the relief of anticipatory bail, whereas Cr. P. 1387 of 2001 (the present petition) filed before the High Court is for seeking direction from the High Court to expedite the hearing of Cr. Misc. 265/2001. As such it is contended by the learned Additional State Public Prosecutor that when these cases, viz., Crl. Misc. 265/2001 (pending before the Sessions Court, Gulbarga) and Crl. Petition No. 1387 of 2001 (Present petition in the High Court) are filed under Section 438 Cr. P.C for the same relief by the same petitioner and the attempt of the petitioner to mislead the Court as noted by the learned Sessions Judge in the order sheet, the present second petition be dismissed as not maintainable one and action be taken against the petitioner and the Counsel in the trial Court for misleading the Court by making false statement.

On the other hand, learned Counsel Sri Ravi Naik appearing for the petitioner does not dispute the facts very much. He fairly contended that, if the facts, as noted by the learned Sessions Judge about the explanation regarding filing of two petitions simultaneously before two Courts as stated by his counterpart, are correct, then the conduct of the said Counsel would be improper. But, so far as the petitioner is concerned, the learned Counsel states that, when he enquired about the two simultaneous petitions, he was instructed that as there is surveillance around the petitioner by police, she was not able to instruct her Counsel at Gulbarga properly and effectively and as such with last hope she is approaching this Court. The learned Counsel submitted that in fact he has mentioned this aspect in his petition itself and there is no suppression or misleading attempt either on his part or on the part of the petitioner.

He further contended that as under Section 438 Cr. P.C both Sessions Court and High Court have been vested with concurrent jurisdiction filing of two petitions simultaneously cannot be a bar especially taking into consideration the peculiar facts and circumstances of the case.

I have heard both sides in detail. No doubt, under Section 439 Cr. P.C both the Sessions Court and the High Court have concurrent jurisdiction to consider the application of an accused to enlarge him on bail. But, that does not mean that an accused can file bail applications simultaneously before both the Courts. Keeping in view the word “or” used in the Section, which indicates that bail application can be filed either before the Sessions court or before the High Court and not simultaneously before both Courts.

In my view and as is the practice although the High Court has concurrent jurisdiction with Sessions Court to grant bail, it is desirable that the ordinary practice should be that the lower Court should be first moved in the matter, though in exceptional case and special circumstances, the High Court may entertain and decide an application for bail either under Section 438 or Section 439 Cr. P.C this is specially important because any expression of opinion by the Superior Court, is likely to prejudice if not frequently, in cases few and far between, the trial in the lower Court. Hence, in my view, it is only in exceptional circumstances that an application for bail should be made directly to the High Court and in the absence of special circumstances the application should not be entertained by the High Court.

By looking into analogues provision in the Code it is normally to be presumed that the Court of Sessions would be first approached for grant of bail, unless an adequate case for not approaching that Court has been made out.

I am of the opinion that it would be a sound exercise of judicial discretion not to entertain each and every application for either anticipatory or regular bail directly by the High Court bypassing the Court of Sessions.

In my view ordinarily, the Sessions Court is nearer to the accused and easily accessible. It will be more speedy disposal since the investigation reports or case papers also can be summoned immediately. There is no reason to believe that Sessions Court will not act in accordance to law and pass appropriate order. In a given case if any accused is grieved his further remedy would be to approach the High Court. In such case, the High Court will also have the benefit of the reasons given by the Sessions Court. As such, looking at the case from any angle, in my view, simultaneous filing of application for bail in both the Sessions Court and the High Court is impermissible. Hence, in the present case also, this petition before this Court is not maintainable one, in view of the admitted fact that the petitioner has already approached the Sessions Court, Gulbarga, for the same relief and the Sessions Court has yet to decide the same.

At this stage, learned Counsel submits that he be permitted to withdraw the petition with liberty to approach this Court if need be. Permission is granted and the petition is dismissed as withdrawn.

Taking into consideration the peculiar facts and circumstances of the case and the submission of the Counsel for the petitioner, the Sessions Court is directed to dispose of the application expeditiously within one week from the next date fixed, i.e, 8.6.2001

Before parting with the case, I am very much pained to note the misleading attempt made by the Advocate before the Sessions Court as to the nature of the petition filed before this Court. Such misleading practice is deprecated.

With these observations, this petition stands dismissed as withdrawn.