Does an accused apprehending arrest or arrested already have an unfettered option to approach this Court under Section 438 or 439, Cr. P.C. ? Cannot this Court in the interests of justice, expediency and convenience insist, (re)introduce and enforce compliance with the salutary and accepted rule of procedure that where two fora have concurrent powers the forum lower in the hierarchy must be approached before the doors of the superior one are knocked ? These interesting questions arise for determination in these Crl. MCs.

The facts scenario is simple. Crl. M.C. 3265 of 2003 is an application for anticipatory bail under Section 438, Cr. P.C. The accused apprehends arrest in a crime registered under Sections 498-A and 306, I.P.C. Crl. M.C. 3391 of 2003 is a petition for regular bail under Section 439, Cr. P.C. where the accused has already been arrested on 4-4-2003 on the allegation that he has committed offences punishable under Section 55(a) of the Kerala Abkari Act.

As this Court sitting as the vacation Court entertained doubts about the desirability of approving the course adopted in many cases that came up for consideration of the accused approaching this Court directly with applications under Sections 438 and 439 without and before approaching the Court of Sessions which has concurrent jurisdiction under these statutory provisions, the learned Public Prosecutor and the learned Counsel were requested to advance arguments on this interesting legal question. Most of the counsel chose to adopt the very convenient course of getting their applications dismissed as withdrawn with liberty to move the Sessions Court. Considering the importance and the significance of the question raised, counsel who have appeared before me on 29-4-2003, 30-4-2003 and 2-5-2003 have all been permitted to advance detailed arguments if any on this question to assist the Court.

I shall first of all extract the relevant portions of the statutory provisions.

"438. Direction for grant of bail to person apprehending arrest. - (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail.

(2) ..................

439. Special powers of High Court or Court of Session regarding bail. - (1) A High Court or Court of Session may direct -

(a) that any person the accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of S. 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified :

.............."

The learned Public Prosecutor contends that though there can be no dispute about the jurisdictional competence of this Court in appropriate and exceptional cases to entertain an application for anticipatory bail/bail under Sections 438/439, Crl. P.C. at the first instance itself that cannot be the rule. The learned Public Prosecutor relies on the well established and salutary rule of procedure that where two flora are vested with concurrent authority, the superior one can be approached by a party only after the inferior one is approached, except in exceptional cases. The learned Public Prosecutor submits that this rule must be adhered to in the interests of convenience, expedition, inexpensive justice, avoidance of conflict of decisions and of saving the time of the superior Court for more sublime pursuits. The learned Public Prosecutor submits that it definitely reduces expenses, at least in a substantial number of cases. At least the presumption is that if the case is a fit one where discretion can be invoked in favour of the petitioner, the Court of Session would and should as well, i