Jawarhar Lal Gupta, C.J. (Oral)

Is an applicant seeking bail bound to approach the Court of Sessions before he can move the High Court? Should the High Court refuse to entertain a petition under Section 438 or 439 of the Criminal Procedure Code directly unless 'eceptional circumstances' are shown? This is the core of the controversy in this case. The sequence of events leading to this 'reference' to the Division Bench may be briefly noticed.

2.A petition for the grant of anticipatory bail viz. Cr.M.C.No. 3265/2003 was filed by Usman. The applicant apprehended arrest in a case registerd under Sections 498A and 306 I.P.C. Similarly, there was another application viz. Crl.M.C. No.3391/2003. This had been filed under Section 439. The applicant had been arrested on the allegation that he was guilty of the offence punishable under section 55(a) of the Kerala Abkari Act. Both the applications were decided by a learned Single Judge of this Court vide order dated May 3, 2003. On a consideration of the matter, the learned judge had taken the view that "in respect of bail applications, 'frog leaping' cannot be permitted." While it was acknowledged that this Court had the "jurisdictional competence to consider and exercise powers in an application for bail/anticipatory bail under Section 438/439 of the Criminal Procedure Code at the first instance," it was observed that there was need for a "salutary procedural self-imposed rule or restriction." Thus, it was held that the "High Court shall not ordinarily (and except under exceptional circumstances) exercise its powers under Sections 438 and 439 of Code of Criminal Procedure without and before the Sessions Court having concurrent jurisdiction is moved for identical relief." It was further observed that the Court "must be very careful and circumspect in identifying such exceptional cases." To effectuate this order, the learned Judge gave the following directions:

"In the result, these petitions are dismissed and the following directions are issued: -

i. Applications under Sections 438 and 439 Cr. P.C. shall hereafter be numbered by the Registry of this court only when it is accompanied by the copy of the order of the Sessions Court (or memo/Petition as indicated in clause (ii) below).

ii. If it is not accompanied by copy of the order, such applications must be accompanied by a petition/memo explaining why copy is not produced or why the Sessions Court had not been moved earlier. The application shall be numbered by the Registry only after the court in its discretion by order passed in such memo/petition directions such reception/numbering.

iii. Every application for bail/anticipatory bail must be disposed of by the respective subordinate courts in the State on the date of receipt of the application itself ideally if moved with sufficient prior notice to the Prosecutor. At any rate all courts including the Sessions courts shall scrupulously ensure that bail applications are disposed of within the outer limit of three working days of their filing without fail.

iv. The Director General of Police shall ensure that a competent police officer is posted in every District to assist the District Public Prosecutor to liaison between the police and the Prosecutor and to ensure that relevant records and instructions are given to the Prosecutor promptly. Similarly, every Police station shall also depute a competent official to assist the Public Prosecutor in charge at the court having local jurisdiction.

v. Copies of orders in every bail application (Whether regular or anticipatory) shall be furnished to the accused/counsel free of cost and acknowledgment obtained from the respective counsel/accused (one copy in each application irrespective of the number of petitioners) immediately after pronouncement of orders on the same day as mandated in the case of judgments in Section 363 (1) Crl.P.C. It shall be the duty of the Presiding Officer of the Court to ensure this.

41. The Registry shall ensure that