Jasbir Singh Sodhi vs Uoi & Anr.
2010 Latest Caselaw 33 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(CRL) 1481/2009 & Crl.M.A.12208/2009


%                             Date of Order : 07th January, 2010



       JASBIR SINGH SODHI               ..... Petitioner
                     Through Mr.O.P.Wadhwa, Advocate.




                    versus




       UOI & ANR.                             ..... Respondent
                         Through Mr.Baldev Malik, Advocate for
                              respondent No.1.
                         Mr.Vikas Pahwa, ASC.

*      CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

       1.     Whether the Reporters of local papers
              may be allowed to see the judgment?       Yes

       2.     To be referred to the Reporter or not?    Yes

       3.     Whether the judgment should be
              reported in the Digest?                   Yes

: V.K. JAIN, J. (ORAL)

This is a petition under Article 226/227 of the Constitution

seeking setting aside/quashing of the Look Out Circular issued against

the petitioner.

2. The petitioner, who is presently settled in Dubai, is wanted in a

case of murder registered vide FIR No.223/2004 at Police Station

Vikas Puri under Sections 302/307/120B/34 of IPC. The grievance

of the petitioner at the time of filing of this petition was that on

account of Look Out Circular issued against him, his passport had

been impounded and he was not being allowed by the authorities in

Dubai to come to India, though he wanted to surrender before the

competent court in Delhi.

3. Mr.O.P.Wadhwa, learned counsel for the petitioner, informs that

the proceedings initiated against the petitioner at Dubai have since

been dropped on 29.12.2009 and now there is no restriction on the

petitioner coming to India and his passport has also been released.

4. According to Mr. Wadhwa, since the petitioner is wanted in a

case registered under Sections 302/307/120B/34 IPC, his

apprehension is that he would be arrested from airport by Delhi

Police. Therefore, he wants an interim protection till the time he

surrenders before the competent court of jurisdiction.

5. The only remedy available to a person who is wanted by the

Police in a case involving commission of a non-bailable offence, is to

seek anticipatory bail in case he wants any protection before he

surrenders in the Court. The petitioner should, therefore, approach

the concerned Trial Court seeking anticipatory bail. If he is not

granted anticipatory bail by the Trial Court, it is always open to him,

to approach this court claiming the same relief. Mr. Wadhwa,

however, requests that anticipatory bail may be granted to the

petitioner directly by the High Court.

6. Section 438 and 439 of the Code of Criminal Procedure confer

concurrent jurisdiction, both on the Sessions Court as well as the

High Court to consider an application for grant of regular bail or

anticipatory bail as the case may be. The powers being equal and

identical, the relief which is sought from the High Court can equally

be granted by the Court of Sessions. It is, however, well established

rule of procedure, that barring exceptional cases, where two Fora are

conferred concurrent jurisdiction, the superior Forum should be

approached only after the Inferior Forum has first been approached,

which will otherwise be flooded with applications for bail/anticipatory

bail even where such a relief can be conveniently obtained from the

Court of Sessions. The presumption is that if a case is fit for grant of

bail or anticipatory bail as the case may be, discretion in such a case

would be exercised by the Court of Sessions in favour of the

petitioner. It is only those cases where the discretion has not been

correctly exercised by the Court of Sessions that need to come up

before the High Court for its consideration. This would also enable

the High Court to have advantage of application of mind by the Court

of Sessions before it is called upon to examine the same set of facts.

No doubt, the High Court has jurisdictional competence to entertain

an application under section 438/439 of Cr.PC even at the first

instance and it is only a self-imposed restriction, that has been

imposed by the Superior Courts as a matter of practice. The

Legislature has conferred wide discretion on the Superior Courts

while enacting Section 438 and 439 of CrPC. How the discretion

vested in the court should be exercised, has been left to the discretion

of the Courts itself. Therefore, such a self-imposed restriction in

exercise of judicial discretion vested in the High Court under section

438/439 of Cr.PC, while retaining scope for entertaining such

applications, even at the first instance, though only in exceptional

cases, cannot be said to be outside the powers conferred upon the

High Court.

7. The High Court, however, needs to be careful and circumspect

in identifying exceptional cases where it decides to entertain an

application under section 438/439 of Cr. PC without asking the

petitioner first to move the Court of Sessions for grant of relief being

claimed from the High Court. Wherever the circumstances of the

case so require, the High Court would be justified in entertaining such

an application even without Court of Sessions having first been

moved. It is neither desirable nor possible to specify the exceptional

cases which would warrant direct intervention of the High Court in

exercise of the jurisdiction conferred upon it by section 438/439 of

Cr.PC. It would be for the petitioner approaching the High Court

directly to make out a case justifying such an intervention. Yet

another reason for not entertaining such an application without the

jurisdiction of the Court of Sessions having first been invoked, barring

in exceptional circumstances, is that sometimes the courts come to

express opinion on the merits of the case, while passing orders on bail

applications. The High Court being the Superior Court, any

expression of opinion by it may sometimes prejudice the trial in lower

courts, though it may happen only in a very few cases. In any case,

the Courts of Sessions being more easily accessible and the disposal

of the bail applications by the Court of Sessions being faster, there is

no good reason for coming directly to the High Court unless the facts

and circumstances of the case justify such a course of action. Similar

view was taken by the Gujarat High Court in Rameshchandra

Kashiram Vora and etc. vs. State of Gujarat and another, 1988 CRL.

L.J. 210; Karnataka High Court in Smt. Savitri Samson vs. State of

Karnataka, 2001 CRL. L.J. 3164; and the Kerala High Court in Usman

vs. the Sub-Inspector of Police and another, 2003 CRL. L.J. 3928.

8. In the present case, no exceptional circumstance, justifying

bypassing the Court of Sessions, has been made out by the petitioner.

In any case, as far as this petition is concerned, it was filed only for

quashing the Look Out Circular and not for grant of anticipatory bail

and the petitioner only sought an interim protection, for two months,

to enable him to wind up his business at Dubai and to make

arrangements etc. to attend the court at Delhi. More than three

months have expired since this interim relief was sought by the

petitioner.

9. Since the proceedings, which were taken up against the

petitioner at Dubai, have been dropped and the passport has been

released to him, the petition has become infructuous and is dismissed

as such. The petitioner will be at liberty to seek anticipatory bail from

the Trial Court. Such an application, if and when filed, will be

considered onits own merit. It goes without aying that the remedy to

approach this Court is always available to the petitioner, in case the

bail is declined to him by the Trial Court.

WP(Crl.) No.1481/2009 stands disposed of.

Dasti.

V.K. JAIN,J

JANUARY 07, 2010 'sn'/RS