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The Guahati High Court Bar Association (petitioner) has assailed in the Supreme Court, a judgment of the Gauhati High Court in which the High Court had held that a person before approaching the High Court for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC) and bail under Section 439 of the CrPC should first exhaust his remedies in the Sessions Court.
Senior Advocate PP Rao appeared for the petitioner association along with advocate Manish Goswami. The Division Bench comprising Justices Jasti Chelameswar and AM Sapre issued notice in the case.
In the petition, a copy of which is with Bar & Bench, the petitioner has contended that High Court and the Sessions court having been provided original concurrent jurisdiction under Sections 438 and 439 by the legislature, such jurisdiction cannot be curtailed by the Court through self-imposed restraints. The petition states that,
“even though the Supreme Court and the High Court have concurrent jurisdiction in Habeas Corpus matter, there has seldom been a case where this Court has directed the petitioner to first approach the High Court as it does in the case of other writ petitions. This is because the constitution gives utmost importance to the right to life and personal liberty under Article 21.
….technicalities in law deserve to be brushed aside when it is a question of liberty of a person. It is submitted that the delay that would be caused by relegating a petitioner praying for anticipatory bail or regular bail first to the Sessions Court amounts to denial of liberty to that extent.”
The petitioner has further contended that from a plain reading of Section 438, it can be made out that the right to choose the forum is with the person who is apprehending arrest and this right cannot be curtailed by any self-imposed restraint.
The petitioner has also submitted that while exercising jurisdiction under Section 439,
“the High Court will necessarily have the benefit of considering the reasons and opinion given by the inferior court i.e the magistrate for rejecting the bail. Under such circumstances it will serve no useful purpose for the prisoner/accused to be relegated first to the Court of Session before approaching the High Court.”
The petitioner has also accepted the fact that there is a divergence of opinion on this question of law regarding Sections 438 and 439 between different High Courts. It has, therefore, stated in the petition that it is necessary and appropriate that the Supreme Court finally settles the law pertaining to the scope and jurisdiction of the High Court and the Sessions Court while dealing with applications under Sections 438 and 439.
The Court issued notice to the State of Assam and also directed that other north-eastern States which are covered by the jurisdiction of Gauhati High Court be impleaded in the case.