India: Every Court Of Session Not Empowered To Grant Anticipatory Bail: Patna HC

Patna High Court in the full bench judgment of District Bar Association versus State of Bihar, has thought on the contrast between a Sessions Judge and Court of Session, a Sessions judge and an Additional/Assistant Sessions Judge. The bench which comprised of Hon'ble Chief Justice of Patna High Court IA Ansari, Justice Navaniti Prasad Singh and Justice Chakradhari Sharan Singh, remarked while dealing with a public interest litigation by the district Bar Association which had challenged a circular issued by High Court wherein it had directed 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.

Now As per the Bar Association, enumerating Code of Criminal Procedure under Section 438 stated that each Court of Session has been engaged to issue headings for pre-arrest/anticipatory bail and, hence, the circular is illegal. . The bench observed that a Court of Session should, conventionally, mean the Sessions Judge's Court, as well as the Courts of Additional and Assistant Sessions Judges. Alluding to Section 9 of the Code of Criminal Procedure, the court likewise watched that an Additional Sessions Judge or Assistant Sessions Judge can't be regarded as a Sessions Judge, for while a Sessions Judge presides over the Court of Session constituted for a sessions division, an Additional Sessions Judge or Assistant Sessions Judge merely exercises jurisdiction in such a Court of Session. The Code has always intended that the power can be exercised only by a Sessions Judge, the Code has used the expression 'Sessions Judge' and not 'Court of Session', the Bench observed. Thus, regarding the fundamental issue of lawfulness of the circular issued, the court observed that the plan of the Code, demonstrates that generally, it is just the high court and the Sessions Judge, who can exercise controls under Sections 438 and 439 in light of the fact that the general control of administration, in a given sessions division, rests in the Sessions Judge.

As the Sessions Judge does exclude Additional/ Assistant Sessions Judge, the court upheld the circular issued by dismissing the contention that each Court of Session has been enabled to issue directions for prearrest/ anticipatory bail.

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