Section 437 Criminal procedure Code says before Court other than High Court or a Court of Session he may be released on Bail: Does it mean that the High Court or the Session Court can not exercise the power under section 437 of the Criminal Procedure Code: If the accused is charge wih an offence that is exclusively triable by a Court of Session and he moves his first application before the Session Judge pending police investiagation should he filed under section 437 or 439 CrPc.
The sessions court is not empowered to take cognizance directly. It comes in to picture only after committal of case by the magistrate or after rejection of bail by the magistrate. thus there is no occassion to move to sessions court under s. 437. The application before it will be filed under s. 439 after rejection of bail by the Magistrate u/s 437.
Either you can move aplication before JMFC under 437 of crpc, as first application, where accused is produced, then court will pass order that offence is triable by session court, hence this court has no jurisdiction,and then you can move appplication u/s. 439 of crpc before sessions court as second application, or you can apply directly to sessions court u/s. 439.
The wording of sec.437 Preson who is suspected of, commission of non bailable offence is brought or appear b4 the court,other than HC or Court of session may realese on bail.Magistrate have power to reales the accused on bail in session case also.
The wording of Sec.439 is A person ,who is the accused of an offence and in the custody be realese on bail. Plain wording of this sec. is any person who is in the custody may file bail application b4 session court or HC.so there ids no bar to file bail application.But there are citations on this point that offences other than triable court session the accused first file bail application & after rejection he can approch to HC or Session Court.
during police investigation the only section to seek bail is sec-167 Cr.P.C. whether the case is exclusively triable by the `court of sessions or not. the sec-437 applies during trial stage and the sec-439 comes into play whn there is rejection u/s 167 or 437.