Concurrent Jurisdiction Of High Court And Court Of Session
While enacting similar provision s in the Crpc, the parliament thought that
the revisioal jurisdiction should not be concurrent and therefore,a provision
was made in section 397(3) Crpc, that if one court is moved in its Revisional
jurisdiction,the other court shall not entertain similar application.
Nothing prevented parliament from putting a similar Barin the provision s
relating to bail either pr arrests or post arrests and this indicates that what
was intended was exercise of concurrent jurisdiction by court of session and
High Court in the matter of grant of bail.
The Calcutta High Court in Amiya Kumar vs State of W.B has held that only
one of the two courts viz . High Court or Session Court should be approached for
grant of anticipatory bail and not both of them for the same relief. Section 438
Crpc ,1973 , gives the petitioner for anticipatory bail a choise as to the forum
where he is to apply.
Two courts are empowered to grant bail u/s 438 , namely the High Court and Court
of Session ,but the petitioner may choose any of them and apply to the Court of
choice. It can't not, therefore, be held, if the petitioner approaches, the
Court of Session, for the relief u/s 438 and if his prayer is rejected, he will
again be entitled to approach the High Court for the same relief on the same
ground under that section.
On the other,hand, the Punjab High Court in Chhajju Ram Godara vs State of
Haryana, has taken the view, that the session judge should be first
approached. Section 438 ,Crpc ,1973, gives concurrent powers of granting
anticipatory bail both to the High court and to the Court of Session. This ,of
course not an inflexible rule.
The Himachal Pradesh High Court has taken a contrary view in Mohan lal vs
Prem Chand, to the effect that a bare reading of section 438 Crpc , no
restriction, unlike Section 397(3) of the Crpc , 1898, had been pleased on a
person wishing to move to the High Court for anticipatory bail. A person is not
required to move the session court first. In the case of anticipatory bail,to
force a person to move the session judge first , may result in uncalled for
curtailments of his right.
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