Code of Criminal Procedure, 1973Section 438 –  Can a High Court, in exercise of its power under Article 227 of the Constitution of India, direct that an application, seeking pre-arrest bail or anticipatory bail shall be filed in the office of the Sessions Judge of the Sessions Division, who would appropriately distribute such applications amongst the senior Additional Sessions Judges including those posted in Sub-Divisional Courts?

What is the distinction between a Sessions Judge, on the one hand, and the Court of Session on the other?

How a Sessions Judge is different from an Additional Sessions Judge or an Assistant Sessions Judge?

Sessions Judge

IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

Date: 27-10-2016

Civil Writ Jurisdiction Case No.251 of 2016

District Bar Association, Civil Court, Patna through its General Secretary Arvind Kumar Sinha, Son of Late Ramchandra Prasad Singh, R/o Mohalla – Tarkeshwar Path, Chiraiyantal, P.S. – Kankarbagh, District – Patna….. …. Petitioner

Versus

1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. 2. The Patna High Court, Patna through its Registrar General, Patna High Court, Patna. 3. The Registrar General, Patna High Court, Patna. 4. The District and Sessions Judge, Patna.

…. …. Respondents

With Civil Writ Jurisdiction Case No. 3429 of 2016

Patna City Bar Association, City Court, Patna, through its General Secretary Deepak Gupta Son of Late Sita Ram Prasad Resident of Mohalla – Bari Patan Devi Mandir, P.S. Alamganj, P.O. Gulzarbagh, District – Patna …. …. Petitioner

Versus

1. The State of Bihar through Chief Secretary, Government of Bihar, Patna 2. The Patna High Court, Patna through its Registrar General, Patna High Court 3. The Registrar General, Patna High Court 4. The District and Sessions Judge, Patna …. …. Respondents

Appearance : (In CWJC No.251 of 2016) For the Petitioner : Mr. Dinu Kumar, Advocate Mr. Ritu Raj, Advocate Mr. Rajesh Kumar Singh, Advocate Mr. Arvind Kumar Sharma, Advocate Mr. Manoj Kumar, Advocate Mr. Santosh Kumar, Advocate (In CWJC No.3429 of 2016) For the Petitioner : Mr. Devendra Kumar Singh, Advocate Mr. Abhay Kumar, Advocate Mr. Rabindra Kumar Sinha, Advocate In both cases For the Respondent-State : Mr. Anjani Kumar, AAG-6 For the Respondent High Court : Mr. Satyabir Bharti, Advocate

JUDGMENT AND ORDER

(Per: HONOURABLE THE CHIEF JUSTICE)

Can a High Court, in exercise of its power under Article 227 of the Constitution of India, direct that an application, seeking pre-arrest bail or anticipatory bail, under Section 438 of the Code of Criminal Procedure (in short “Code”), shall be filed in the office of the Sessions Judge of the Sessions Division, who would appropriately distribute such applications amongst the senior Additional Sessions Judges including those posted in Sub-Divisional Courts? This question, takes us to another question and the question is: What is the distinction between a Sessions Judge, on the one hand, and the Court of Session on the other? This question takes us to yet another question and the question is: How a Sessions Judge is different from an Additional Sessions Judge or an Assistant Sessions Judge?

2. The questions, posed above, have been thrown up by the present applications made, under Article 226 of the Constitution of India, in the form of public interest litigation, by the District Bar Association, Patna, and the Patna City Bar Association, Patna, putting to challenge the Circular issued, in this regard, by the High Court, on 21.09.2015, and, the consequential order, dated 23.09.2015, published by the Sessions Judge, Patna.

3. We have heard Mr. Dinu Kumar, learned counsel for the petitioner in CWJC No.251 of 2016, and Mr. Devendra Kumar Singh, learned counsel for the petitioner in CWJC No.3429 of 2016. We have also heard Mr. Anjani Kumar, learned Additional Advocate General No.6, and Mr. Satyabir Bharti, learned counsel appearing on behalf of the Registry of the High Court.

4. Before I enter into the merit of the present public interest litigations, we must point out that though a number of Circulars, issued by this Court, were put to challenge in the present writ petitions, Mr. Dinu Kumar, learned counsel appearing, for petitioner of CWJC No.251 of 2016, and Mr. D. K. Sinha, appearing, learned counsel for the petitioner of CWJC No.3429 of 2016, have made it clear that petitioners keep their challenge confined only to the Circular, dated 21.09.2015 (Annexure-3) issued by the Registrar General, Patna High Court, addressed to all the District & Sessions Judge of the State of Bihar, and the order, dated 23.09.2015, (Annexure-5), issued by the District & Sessions Judge, Patna.

5. Considering the nature of challenge, which these public interest litigations pose, the Circular, dated 21.09.2015, is reproduced below in extenso:

“Letter No.54260-

54296/Rules Deptt.

Dated, Patna, 21st

September, 2015 To, All the District and Sessions Judge of the State of Bihar Subject: Distribution of anticipatory bail applications.

Sir, I am directed to say that the Hon’ble Court by its Resolution dated 15.09.2015 has been pleased to resolve that the General Letter No.01 of 1986 (Criminal) issued by this Court to all the District & Sessions Judges in Bihar, dated 12th February,1986 be recalled and they be informed that all the anticipatory bail applications under Section 438 of the Code of Criminal Procedure, shall be filed before the Sessions Judge, who would appropriately distribute anticipatory bail applications, amongst the senior Additional District and Sessions Judges including those posted in Sub- divisional Courts.

I am, therefore, to request you that the above directions should be strictly followed by all concerned.

Yours faithfully, Sd/-

Registrar General”

6. Closely following the issue of the Circular, dated 21.09.2015, aforementioned, the learned Sessions Judge, Patna, issued the order, dated 23.09.2015, (Annexure-5), which reads thus:

“OFFICE OF DISTRICT & SESSIONS JUDGE, PATNA (Administrative side) ORDER No. 127/ Dt. 23.09.2015 Perused the direction of the Hon’ble High Court communicated through Letter No.54260- 54296 Rules Department dt. 21st September, 2015, in the matter of filing and hearing of Anticipatory Bail Petitions.

The Hon’ble Court has directed that the Anticipatory Bail Application U/s 438 Cr.P.C. shall be filed before the Sessions Judge and the Sessions Judge would appropriate distribute among the Addl. District & Sessions Judge including those posted in Sub-Divisional Courts.

Barh Sub-Divisional Court is about 65 KM away from the District Headquarter. Therefore, it would be inconvenient for the litigants to file Anticipatory Bail Applications at Patna and thereafter go back for hearing of the same at Barh. In the past, there was practice that Anticipatory Bail Applications were being filed at the Barh Court itself.

Hence, considering the convenience of the litigants, it is directed that from 01.10.2015 onwards all Anticipatory Bail Applications arising from the Territorial Jurisdiction of Barh Sub-Division shall be filed in the name of the District & Sessions Judge, Patna at Camp Court, Barh itself. The District Judge would hear those applications at the Barh Court itself on dates notified before hand or in absence of sitting of the District Judge at Barh, the senior most Addl. District & Sessions Judge, Barh, shall her those Anticipatory Bail Applications on all working days according to convenience.

A register of filing of Anticipatory Bail Application shall be maintained by the Court of senior most Addl. District & Sessions Judge, Barh, itself.

Informed to all concern including the Bar Association, Patna and Barh.

Sd/-

(Birendra Kumar) District & Sessions Judge, Patna Memo No. 9695-9703/ Admn. Dt. Patna, the 23 Sept., 2015 Copy forwarded to the Judge-in-charge /Secretary, Bar Association, Patna/ Patnacity / Danapur/ Barh/ The System Officer, Computer Room, Civil Courts, Patna, for information and needful.

By Order Sd/-

I/c Registrar, Civil Courts, Patna 23.09.2015″

7. Assailing the Circular, dated 21.09.2015, aforementioned, learned counsel for the petitioner(s) submits that under Section 438 of the Code, every Court of Session has been empowered to issue directions for pre-arrest/anticipatory bail and, therefore, the High Court‟s Circular aforementioned directing that the applications, seeking pre-arrest/ anticipatory bail, shall be filed before the Sessions Judge, who, shall, in turn, distribute such applications amongst the senior Additional Sessions Judges, is wholly without jurisdiction, and calls for interference in exercise of this Court‟s powers under Article 226 of the Constitution of India.

8. Resisting these public interest litigations, Mr. Satyabir Bharti, appearing on behalf of the High Court, submits that it is the Sessions Judge, who, in a Sessions Division, controls the filing and distribution of applications seeking pre- arrest/anticipatory bail and, therefore, the High Court is completely justified in issuing the direction, which it has issued by means of the Circular, dated 21.09.2015. The consequential order, dated 23.09.2015, published by the learned Sessions Judge, Patna, according to Mr. Satyabir Bharti, learned counsel, is in tune with the Circular, dated 21.09.2015, and is, therefore, valid and does not suffer from any legal infirmity.

9. Our search for correct answers to the questions, posed above, bring us, first, to the scheme of the Code, relating to the trial of a case, by a Court of Assistant Sessions Judge or Additional Sessions Judge, on the one hand, and the Court of the Sessions Judge, on the other. For this purpose, not only the provisions of the new Code (as contained in the Code of Criminal Procedure, 1973), but also the relevant provisions of the Code of Criminal Procedure, 1898, (in short, ‘the old Code or the Code of 1898’) need to be taken note of.

10. Since it is Section 209 of the Code, whereunder a case is committed to a Court of Session for trial, let me take note of Section 209, which, I find, reads as under:

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