( 1 ) THESE are applications filed under S. 438 of the Code of Criminal Procedure, 1973 (the Code ).

( 2 ) UNDER S. 438 (1) the High Court and the Court of Session have concurrent jurisdiction to grant anticipatory bail. That section provides that a person apprehending arrest on an accusation of having committed a non-bailable offence "may apply to the High Court or the Court of session for a direction that in the event of his being arrested he shall be released on bail". Since this Court and Court of session have got concurrent jurisdiction in the matter either of them could be moved by the person concerned.

( 3 ) THE question is : is it not desirable for this Court to impose certain limitation in the matter of entertaining such applications at the first instance ?

( 4 ) THIS Court can adopt such a course only if it serves the ends of justice and not otherwise.

( 5 ) APART from S. 438 there are other provisions in the Code which have Invested this Court and the Court of Session with concurrent jurisdiction. For example S. 439 of the Code is one such. It enables these Courts to grant bail to a person in custody. Similarly S. 397 of the Code has invested both this Court and the Court of session with concurrent revisional jurisdiction. However, under S. 397 if a person approaches either of these Courts he cannot again agitate that matter by way of a revision in the other Court. But such is not the case in the case of applications under s. 438 or S. 439 of the Code. Even under the Code of Criminal Procedure, 1898. (Old code) this Court and the Court of Session had concurrent powers of revision under s. 435 and power to grant bail under S. 498 of that Code. Similar questions having arisen under those provisions of the old code, Courts In India had occasion to deal with this matter. Several High courts in the country had followed uniformly, for a number of years, the practice of directing the parties to first approach the Court of Session and later, if need be, the High Court. Some High Courts also had taken a contrary view. Those decisions will be of considerable help to us in understanding the question posed above. In this connection it may also be relevant to note that the new Code has enlarged the revisional powers of the Court of Session and, as already stated, has made that court, if approached at the first instance, a final one in the matter. The intention of the legislature is to invest that Court with more powers and responsibilities so that it may considerably share the burden of administering criminal justice In the country along with the High Court in the state.

( 6 ) IN the matter of bail, either anticipatory or regular, the voice of the Court of Session is not final but is subject to revisional or appellate jurisdiction of this court and the Supreme Court. Also in these matters of bail, either anticipatory or regular, the Court of Session is given as wide a discretion as this Court. In this connection the following obesrvations of chandrachud, CJ, in Gurbaksh Singh Sibbia v. The State of Punjab), at paragraph 14 may be noted:"there is no risk involved in entrusting a wide discretion to the Court of session and the High Court in granting anticipatory bail because, firstly, these are higher Courts manned by experienced persons; secondly, their orders are not final but are open to appellate or revisional scrutiny. . . . . . . . ".

( 7 ) SINCE both the Courts the Court of session and this Court-have concurrent powers in the matter, it appears desirable, for more than one reason, that that Court should be approached first in the matter.

( 8 ) IN this connection I would first like to refer to a decision of R. S. Pathak, CJ, (as he then was) of the Himachal Pradesh high Court in Sher Singh v. Singha singh (2 ). That was a case In which the aggrieved party had sought for cancellation of bail granted by the Magistrate. Instead of approaching the Session Judge the parties had approached the High Court directly