S.S Sandhawlia, J.:— This is an application on behalf of the four petitioners for the grant of anticipatory bail by this Court under section 438 of the Criminal Procedure Code.
2. The case allegedly registered against them under which they foresee apprehension by the police is an ordinary one under section 430 of the Indian Penal Code. It appears to be the admitted position that the petitioners do own land in village Nimbri which is irrigated through Ratta Khera Distributary from which the unauthorised irrigation is said to have taken place. It has been averred on their behalf that the petitioners relations of a former Minister for Local Government in the erstwhile Congress Ministry in the State of Haryana. It is, however, significant to note that on the petitioners' own showing, no case has been registered against the said Minister though it is sought to be suggested that the petitioners are being falsely implicated because of their relationship with him.
3. In the recent judgment of their Lordships of the Supreme Court reported as Balchand Jain v. State of Madhya Pradesh . 1977 Cur. L.J S.C Cri. 11. Bhagwati, J., has observed that this power of granting anticipatory bail is extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated or a frivolous case might be launched against him that resort is to be made to this provision. Fazal Ali, J., who prepared the main concurring judgment therein has noticed the limitations implicit in the exercise of the power under section 438, Criminal Procedure Code, in the following terms:—
“As section 438 immediately follows section 437 which is the main provision for bail in respect of non-bailable offences it manifest that the conditions imposed by section 437(1) are implicitly contained in section 439 of the Code. Otherwise the result would be that a person who is accused of murder can get away under section 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render provisions of section 437 nugatory and will give a free licence to the aecused persons charged with non-bailable offences to get easy bail by approaching the Court under section 438 and by-passing section 437 of the Code. This, we feel, could never have been the intention of the Legislature. Section 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in section 437, there is a special case made out for passing the order.”
4. As at present advised, I am of the view that the present case does not come within the purview of a special and exceptional case as laid down by their Lordships of the Supreme Court. However, I would not wish to foreclose the issue at this very stage because of the fact that the full contents of the first information report in the case have not been placed on this record. This apart, section 438 of the Code of Criminal Procedure gives concurrent powers of granting anticipatory bail both to the High Court and the Court of Session. As in other analogous provision in the Code it is normally to be presumed that the Court of Session would be first approached for the grant thereof unless and adequate case for not approaching the said Court has been made out. This, of course, is not an inflexible rule. However, in the present case, the petitioners have not shown as to why they have chosen to by pass the Court of Session whilst approaching the High Court directly. They should hence first approach the said Court for the grant of this relief.
Order accordingly.