K.B. Asthana, C.J., J.P. Chaturvedi and M.P. Saxena, JJ.

1. This reference arises out of two applications for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973. Criminal Misc. Bail Application No. 4386 of 1975 is by Onkar Nath Agrawal, Rajendra Nath Agrawal and Mahendra Nath Agrawal, who were alleged to have committed a non-bailable offence under Section 7 read with Section 3 of the Essential Commodities Act and Tractors (Distribution and Sale) Control Order, 1971. Criminal Misc. Bail Application No. 4408 of 1975 is by Jyoti Prasad Misra, who apprehended his arrest for an offence under Rule 43 read with Rule 36 of the Defence of India Rules and under Section 121 of the Indian Penal Code.

2. A preliminary objection as to the maintainability of the applications in the High Court appears to have been taken by the learned Government Advocate inasmuch as the applicants did not move the Sessions Judge concerned before making an application-for anticipatory bail in the High Court. Accordingly the following question has been referred to us:

Whether an application for, anticipatory bail under the provisions of the Section 438 of the Code of Criminal Procedure, 1973, is maintainable in the High Court without such an application having been moved and rejected in the court of Sessions

3. Learned Government Advocate has urged that an application under Section 439 of the Code of Criminal Procedure 1973 is not to be entertained in the High Court unless the applicant has approached the Sessions Judge in the first instance inasmuch as there is a practice in the High Court to that effect. He has relied upon Shailbala Devi v. Emperor : AIR 1933 All 678 : Hashim v. Notified Area Moghal Sarai : AIR 1933 All 283; S.P. Dubey v. Nar Singh Bahadur 1960 AWR 646 and Municipal Board v. Bhim Singh 1962 AWR 199.

4. Sri S.N. Mulla, learned Counsel for the applicants Onkar Nath Agrawal and others has, on the other hand, contended that a practice contrary to the express provisions of law could not prevail.

5. Section 438(1) of the Code of Criminal Procedure, 1973, provides:

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 Sessions for 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.

6. It is obvious that the provision comprises of two parts. The first part envisages of the conditions under which a person is entitled to make an application for anticipatory bail in the courts of Sessions or in the High Court. There are only two conditions which must exist before he can move such an application. In the first place there must exist a ground to believe that he may be arrested and secondly there must be an accusation of his having committed a non boilable offence. The language is plain and unambiguous. It clearly contemplates two forms for moving an application for anticipatory bail, namely the court of Sessions and the High Court. Both the jurisdictions are concurrent and it is left for the person to chose either of the two. The second part enables the High Court or the court of Sessions, as the case may be to give a direction for his release. The provisions read as a whole does not prima facie create any bar that he must apply to the court of Sessions first before coming to the High Court to seek his redress.

7. The words "that Court may, if it thinks fit, direct etc." make it also clear that the. Sessions Judge or the High Court has a discretionary power to give a direction for release of the applicant on bail. It does not lay down any condition on the existence of which bail can be granted. When a tribunal is invested by an Act or by rules with discretion without any indication in the Act or rules of the grounds upon which the discretion is to be exercised, the courts have declined to lay down any rules with a view to indicate the particular grooves in which the discretion should run on the ground that if the Act or rules do not fetter the discretion of the Judge why should the courts do so. See Gardner v. Jay (1185) 29 GD. 50 and Hume v. Poresh Chunder 1914 Cal. 597.

8. In the authority reported in Param Jeet Singh v. State of U.P. 1971 AWR 701, Parara Jeet Singh was enlarged on bail by the A.D.M., Agra, but his bail was cancelled on an application by the police and a process under Sections 87 and 88 of the Code of Criminal Procedure was issued against him. Param Jeet Singh presented a petition under Article 226 of the Constitution of India in the High Court which stayed the operation of the order of the A.D.M. (J) cancelling his bail. He also moved an application under the provisions of Section 498 of the Code of Criminal Procedure in the High Court. In respect of the bail application it was contended by the learned Government Advocate that the application could not be entertained by the High Court under Section 498 of the Code of Criminal Procedure without moving a similar application in the court of Sessions. This contention was repelled and it was observed:

I think the power of the High Court under Section 498 of the Code of Criminal Procedure are wide and unfettered. The High Court in its discretion can exercise those powers even if the accused does not approach the subordinate courts or authority for his release first.

9. It may, however, be mentioned that inasmuch as Section 438 of the Code of Criminal Procedure, 1973 gives a discretionary power to grant bail, this discretion is to be exercised according to the facts and circumstances of each case. There may be cases in which it may be considered by the High Court to be proper to entertain an application without the applicant having moved the court of Sessions initially. Similarly there may be cases in which the Court may feel justified in asking the applicant to move the Sessions Court or to refer the matter to that Court. In any case all depends upon the discretion of the Judge hearing the case.

10. We may now consider the authorities cited by the learned Government Advocate in support of his contention. These authorities relate to applications for revision under the provisions of Sections 435 and 439 of the Code of Criminal Procedure, 1898. In the authority reported in Shailbala v. Emperor : AIR 1933 All 678 one of the questions was whether an application in revision should be entertained by the High Court when the matter has not first been taken to the District Magistrate or the Sessions Judge. Sir Shah Sulaiman, C.J., held that the High Court has full jurisdiction to entertain such an application even though the District Magistrate or the Sessions Judge has not been approached in the first instance. At the same time he observed:

It is quite clear that a practice has al grown up in this Court to refuse to entertain application direct, until the District Magistrate or the Sessions Judge has been approached. This practice is based largely on convenience, and seems to me to be sound. The District Magistrate or the Sessions Judge is on the spot and easily accessible and the record can be locally called for promptly without any loss of time and without the necessity of sending it through the post. The proceedings are also likely to be less expensive. The High Court is a superior Court and its time would not be unnecessarily spent in examining the record and in some cases even considering the evidence, when a subordinate court has already considered the matter and made its report. Further, the High Court would have the opinion of another Court before it which would be of help. In practice no great harm is likely to be suffered by the accused, if he is required to go to the District Magistrate or the Sessions Judge in the first instance. When a practice of this kind becomes well-known to the members of the Bar in the Mofussil and in the High Court the accused would be avdised to approach the subordinate cannot forthwith and not attempt to file a revision in the High Court direct. In many cases, if the District Magistrate or the Sessions Judge reports in favour of the accused, he need not be represented in the High Court, particularly when the illegality of the conviction or the severity of the sentence is patent. On the other hand, if such a salutary rule of practice were not to prevail, there would be a temptation, and even an encouragement, to accused persons to come up straight to the High Court over the head of the District Magistrate or the Sessions Judge concerned, because the latter can only report to the High Court and cannot themselves pass an order in favour of the accused. Many accused persons may therefore think it more expeditious and much cheaper to come up straight to the High Court. The High Court would then be flooded with such applications.

On these grounds it seems that a practice of a long standing has grown up under which the High Court does not ordinarily, entertain an application in revision unless the District Magistrate or the Sessions Judge has been moved first.

11. There are, however, several authorities in support of the view that the practice recognised in the case of Shailbala Devi v. Emperor : AIR 1933 All 678 is not an absolute one and that there may be exceptions to it. Accordingly in the case of S.P. Dubey v. Narsingh Bahadur 1960 AWR 646 it was held that though the normal practice for the High Court is to refuse to entertain application where the applicant did not approach the Sessions Judge first, but there is no hard and fast rule and in suitable cases the High Court has been known to depart from this practice and to accept revisions that have not been previously considered by a Sessions Judge. Similarly in Municipal Board v. Bhim Singh 1962 AWR 199 D.S. Mathur, J. as he then was, observed:

But where the High Court entertains a revision directly without the party having approached the Sessions Judge there would be no illegality but a mere departure from the above practice....

12. The recent view, therefore, appears to be that the Courts should have unfettered discretion and may entertain revision notwithstanding the prevailing practice if they feel justified on the basis of facts and circumstances of each case. We may also add that there is no authority in support of the contention that the practice of convenience recognised in Shailbalas case in respect of revisions is applicable to bail or anticipatory bail and that the discretion of the Court should be fettered by such a practice.

13. We are, therefore, of the view that the courts should have an unfettered discretion in the matter of bail under Section 438 Code of Criminal Procedure to be exercised according to the exigencies of each case.

14. We, therefore, answer the question under reference in the affirmative and hold that a bail application under Section 438, Code of Criminal Procedure, 1973 may be moved in the High Court without the applicant taking recourse to the Court of Sessions.