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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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