The ruling relied upon by the learned Public Prosecutor, which is reported in K.GAJENDRA NAIDU Vs. STATE OF AP.,3 is with regard to maintainability of second application under Section 438 Cr.P.C. Hence, the same need not be discussed as the issue, now, in this case, is not that. The ruling of this Court reported in Y.CHENDRASEKHARA RAO AND OTHERS Vs. Y.V. KAMALA KUMARI AND OTHERS4 wherein it was observed that sense of urgency under Section 439 is less when compared to Section 438. Hence, the view that the accused has to approach the Magistrate Court first under Section 439, was supported. But, however, the said view is contrary to what the Apex Court held in the case of SUNDEEP KUMAR BAFNA Vs. STATE OF MAHARASHTRA AND ANOTHER, first cited case by the petitioner’s counsel. The ruling reported in IMRAN Vs. STATE GOVT. OF NCT OF DELHI5 does not make any point in favour of the learned Public Prosecutor, as it was held at para 11, that indisputably, the jurisdiction under Section 439 of Cr.P.C. for grant of bail is the concurrent jurisdiction of High Court as well as the Court of Session; but it would always be advisable to approach the Court of Session first to avail this remedy and further in the High Court, under Section 439 of Cr.P.C. From the above, it can be understood that it is only a rule of convenience and caution, given by the High Court of Delhi.
