IMPORTANT POINT
The application under Section 497A J. & K. Criminal Procedure Code for grant of anticipatory bail when the first application on the similar grounds is rejected by the Sessions Court will not be maintainable because the of Sessions and the High Court have concurrent jurisdiction in the matter.

JUDGMENT

M.L. Bhat, J. - Learned Counsel for the respondent Mr. Riaz Rasool has raised an objection to the maintainability of this application. His submission is that the-petitioner has moved for anticipatory bail before the 2nd Addl. Session Judge, Srinagar. That bail application was rejected. He cannot move a fresh bail application on the same ground under Section 497 A Criminal Procedure. Code to this court. Reliance is placed on Amiya Kumar v. State of West Bengal1. The Division Bench of the Calcutta High Court has dealt with this question and it was held that anticipatory bail can be granted by the High Court or the Sessions Court and the choice is given to the person who seeks bail in anticipation of arrest Once a person applies to Sessions Court and the Sessions Court rejects the application fresh application for grant of bail in anticipation cannot be moved before the High Court on the same grounds.

2. Mr. H.M. Sadiq has controverted this position and has referred to a Full Bench authority of Himachal Pradesh in Mohan Lal & ors. v. Prem Chand & ors.2. The Full Bench was answering the reference and the question referred to the Full Bench was:

"Is it incumbent upon an applicant to approach the Court of Sessions before moving the High Court for grant of anticipatory bail under-section 438 of the Central Cr. Procedure Code."

While answering this question the Full Bench has taken into consideration the provisions of Section 397 of the Criminal Procedure Code, which correspond to Section 435 of our Code, and they have answered that it is not incumbent on the person to move Sessions Court first He can directly move the High Court. This had become necessary because in an earlier authority of the same High Court titled Joginder Singh v. State of H.P.3, the Division Bench had taken view that a bail application for grant of anticipatory bail cannot be moved directly before the High Court without first moving the Sessions Court. The view expressed by the Division Bench obviously was not in conformity with the provisions of law because for grant of anticipatory bail Sessions Court and the High Court have concurrent jurisdiction. In chat context the Full Bench has said that it is not necessary for a person to move the Sessions Court first and that he cannot come directly to the High Court for grant of anticipatory bail. The full Bench authority referred to above is not authority for the proposition that once the anticipatory bail is rejected by the Sessions Court on the same grounds, High Court can be moved for grant of anticipatory bail. In the observations made by the Full Bench, there may be a passing reference, but that is only obiter because the Full Bench was not considering that question at all. The limited question before the Himachal Pradesh High Court was whether it was necessary to approach the Sessions Court before moving the High Court for grant of anticipatory bail and that question is answered in the negative by the Full Bench.

3. The opinion expressed by the Calcutta High Court (supra) referred by Mr. Riaz Rasool is correct and they appear to have laid down the law correctly. 1berefore, the application under Section 497 A for grant of anticipatory bail when the first application on the similar grounds was rejected by the Sessions Court will not be maintainable because the Court of Sessions and the High Court have concurrent jurisdiction in the matter.

4. However, the matter would not rest here. If the Sessions Court has refused the bail. High Court 4t revision against the refusal of bail is not powerless because sub-section 3 of the Section 397 of the Criminal Procedure Code as amended in the Central Act does not apply to the State of J & K nor is a similar provision contained in our code which has taken away the power of revision of this court in such matters nor is an order recorded by the Sessions Judge to be treated as final and beyond the purview of judicial scrutiny of this Court therefore, the petitioners is w