Jasbir Singh Sodhi v. UOI & Anr

V.K. JAIN,J

JANUARY 07, 2010 'sn'/RS

* 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 t