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2018 (11) TMI 1847 - HC - Indian LawsConcurrent Jurisdiction - whether the High Court and the Court of Sessions exercises concurrent jurisdiction under Section 438 of Cr.P.C.? - HELD THAT:- In the case of GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], their Lordships of the Hon'ble Supreme Court have drawn the distinction between an ordinary order of bail and an order of anticipatory bail. Their Lordships have also held that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. The principles of anticipatory bail have also been dealt with by the Full Bench of Himachal Pradesh High Court in MOHAN LAL AND ORS. VERSUS PREM CHAND AND ORS. [1980 (5) TMI 120 - HIMACHAL PRADESH HIGH COURT] where the Full Bench has held that the applicant cannot be compelled to apply to Sessions Judge before approaching High Court. Thus, the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. It is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly - the matter is remitted back to learned Single Judge who will proceed with the matter in accordance with law.
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