Source: legaldesire.com<\/p>\n\n\n\n
t\n must be said right at the outset that in a latest, landmark and \nlaudable judgment titled Harendra Singh @ Harendra Bahadur Vs The State \nOf U.P. in Criminal Misc. Application No. 6478 of 2019 (Bail) delivered \non July 8, 2019 by the Allahabad High Court, it has been held that plea \nfor anticipatory bail is not maintainable before High Court without \napproaching Sessions Court unless there are special reasons. Justice \nChandra Dhari Singh of Allahabad High Court has authored this noteworthy\n and commendable judgment. This noteworthy judgment makes it absolutely \nclear that the party has to explain why it has come to the High Court \ndirectly without approaching first the Sessions Court and anticipatory \nbail application filed under Section 438 of the Code of Criminal \nProcedure is not maintainable before the High Court without exhausting \nremedy before the Court of Sessions, unless there are \u2018extraneous or \nspecial reasons\u2019.<\/p>\n\n\n\n
\n First and foremost, after stating that, \u201cHeard learned Counsel for the \napplicant and learned A.G.A.\u201d in para 1, it is then clearly pointed out\n in para 2 that, \u201cBy means of instant application filed under Section \n438 of Cr.P.C., the applicant has sought anticipatory bail in Case Crime\n No. 476 of 2019, under Sections 419, 420, 467, 468, 471 IPC lodged at \nPolice Station, Kotwali Nagar, District Raebareli.\u201d <\/p>\n\n\n\n
\n It would be pertinent to mention here that it is then pointed out in \npara 3 that, \u201cBefore adverting to the factual matrix of this case and to\n ascertain as to whether the applicant is entitled for grant of \nanticipatory bail or not; a serious legal question has been raised \nbefore this Court by the learned A.G.A. that the applicant without \nexhausting the remedy under Section 438 of Cr.P.C. before the \njurisdiction Sessions Court, has directly approached this Court. \nTherefore, this application is not maintainable and the applicant has to\n be relegated to the Court of Sessions first and then he can approach \nthis Court. In this background, the legal question that arises for \nconsideration of this Court is that-<\/p>\n\n\n\n
\n \u2018Whether the application filed under Section 438 of the Cr.P.C. is \nmaintained before the High Court without exhausting remedy under the \nsaid provision before the Court of Sessions which has concurrent \njurisdiction with that of the High Court?\u2019\u201d<\/p>\n\n\n\n
\n What\u2019s more, it is then rightly pointed out\n in para 6 that, \u201cOn plain and meaningful reading of the abovesaid \nprovision, it is crystal clear that it confers concurrent jurisdiction \non the High Court as well as the Court of Sessions. The wide discretion \nhas been entrusted on the Court of Sessions as well as on the High Court\n to enlarge such person who comes to the Court, on anticipatory bail. \nBoth the courts have got jurisdiction to enlarge the applicant on \nanticipatory bail, considering the relevant guidelines in the said \nprovision.\u201d<\/p>\n\n\n\n
\n To be sure, it is then rightly pointed out in para 16 that, \u201cIn a \ndecision reported in 1983 (2) KLJ 8 in the case of K.C. Iyya Vs. State \nof Karnataka, the High Court of Karnataka has observed as follows:<\/p>\n\n\n\n
\n \u20187. Since both the Courts, the Court of Sessions and this Court have \nconcurrent powers in the matter, it appears desirable, for more than one\n reason, that the Sessions Court should be approached first in the \nmatter\u2019.\u201d<\/p>\n\n\n\n
\n In a similar vein, it is then also rightly stated in para\n 17 that, \u201cIn the case of Shivasubramanyam Vs. State of Karnataka and \nanother; 2002 CRI.L.J 1998, the Karnataka High Court has reiterated the \nabovesaid principles and ultimately held that the application filed \nunder Section 438 of Cr.P.C. directly to the High Court is maintainable \nonly under exceptional and under special circumstances, but not as a \nroutine and the party cannot come before the Court as a matter of \nright.\u201d<\/p>\n\n\n\n
\n In totality, it is then observed in para \n18 that, \u201cBy looking into the abovesaid discussions, I am of the opinion\n that the party has to approach the Sessions Court first and then he has\n to approach the High Court which is the normal course. But the courts \nhave also observed that in extraordinary circumstances with special \nreasons, the party can also approach the High Court. The High Court \ncannot entertain Section 438 of Cr.P.C. as a matter of routine without \nexamining whether there are any special reasons or special circumstances\n to entertain the said application.\u201d <\/p>\n\n\n\n
\n It also cannot be lost on us that it is then observed in para 19 that, \n\u201cIn the case of Sri Kwmia Gwra Brahma Vs. State of Assam (Bail No. 3024 \nof 2014), the Gauhati High Court has also expressed similar view and \nheld that the party has to approach the Court of Sessions first under \nSection 438 of Cr.P.C. and he can later approach the High Court.\u201d<\/p>\n\n\n\n
\n Needless to say, para 20 then leaves no stone unturned to make it \nabsolutely clear that, \u201cThe intention of bringing out Section 438 of \nCr.P.C. is enabling each and every person in the country if under \nextraordinary circumstances under exigencies either to approach the \nCourt of Sessions or the High Court which can be concurrently exercised \nby both the courts. Though such remedy, cannot be riddled down by \nimposing any extraordinary condition but still the Court can refuse to \nentertain the bail petition and direct the party to approach the Court \nof Sessions first because Section 438 of Cr.P.C. shall not be exercised \nas a matter of right by the party, though it can be invoked either \nbefore the Sessions Court or before the High Court. It is purely the \ndiscretionary power of the Court to exercise power depending upon the \nfacts and circumstances of each case. Therefore, the High Court can \ndirect the party to go first before the Court of Sessions and then come \nto the High Court though there is no embargo under the statute itself, \nbut the Court can do so on the basis of various factors.\u201d <\/p>\n\n\n\n
\n Be it noted, it is then illustrated in para 21 why the party should \nfirst approach the lower court by stating that, \u201cIt is worth to note \nhere that whenever the concurrent jurisdiction is vested under the \nstatute simultaneously in two courts of one is superior to the other, \nthen it is appropriate that the party should apply to the subordinate \nCourt first, because the higher Court would have the advantage of \nconsidering the opinion of the Sessions Court. Moreover, the party will \nget two opportunities to get the remedy either before the Sessions Court\n or before the High Court but if once he approaches the High Court, he \nwould run the risk that, the other remedy is not available to him if he \nfailed to get the order in the High Court, he cannot go before the \nSessions Court for the same remedy. However, vice versa is possible.\u201d<\/p>\n\n\n\n
\n While continuing in the same vein as to why the parties should first \napproach the lower court, it is then further noted in para 22 that, \u201cIt \nis also to be notable that the Sessions Court will always be nearest and\n accessible Court to the parties. Moreover, considering the work load of\n the courts in the country, the High Courts are flooded with heavy \npendency of cases. In order to facilitate the other parties who come \nbefore the Court with other cases before the High Court (which has got \nexclusive Jurisdiction) and also in order to provide alternative remedy \nto the parties, it is just and necessary that the party shall first \napproach the Sessions Court under Section 438 of Cr.P.C. so that the \nHigh Court can bestow its precious time to deal with other pending cases\n which requires serious attention and expeditious disposal, where the \nparties who have come to the High Court after exhausting remedy before \nthe Magistrate Court or the Sessions Court for grant of bail and for \nother reliefs.\u201d<\/p>\n\n\n\n
\n Not stopping here, it is then further observed in para 23 that, \u201cThe \ngrant of anticipatory bail or regular bail requires appreciation, \nscrutiny of facts and after going through the entire materials on \nrecord. In that context, if the Sessions Court has already applied its \nmind and passed the appropriate order, it would be easy for the High \nCourt to look into or have a cursory glance of the observation made by \nthe Sessions Court and dispose of the case, with expedition.\u201d <\/p>\n\n\n\n
\n Going forward, it is then stipulated in para 24 that, \u201cIt is also worth\n to note here that the Sessions Court and the High Court arte \nconcurrently empowered to grant bail under Section 438 of Cr.P.C. The \nobject is that if the party who is residing in the remote area can \ndirectly approach the Sessions Court which is easily accessible. In \norder to obviate the very object and purpose, the party has to explain \nwhy he did not go to that Court. Otherwise, it amounts to making that \nprovision redundant, so far as the Sessions Courts are concerned. Even \nonce again re-looking into structure of Section 438 of Cr.P.C., it is \npurely the discretionary power given to the Court to entertain the \nPetition. It is the discretion given to the Courts to exercise that \npower. When discretion vests with Court, the party has to explain why he\n has come to the High Court directly, for the discretionary relief under\n the said provision.\u201d<\/p>\n\n\n\n
\n To say the least, it is then summed up in \npara 25 by holding that, \u201cTherefore, looking to the abovesaid rulings of\n different High Courts, I do not find any strong reason to deviate from \nthe said view taken by the other High Courts. Hence, I am of the \nopinion, the point formulated by me noted above has to be answered \naccordingly.\u201d<\/p>\n\n\n\n
\n While proceeding ahead on a sure wicket, it is then envisaged in para \n26 that, \u201cHence, I answer the point raised as follows:<\/p>\n\n\n\n
\n \u201cThe bail application filed under Section 438 of Cr.P.C. is not \nmaintainable before the High Court without exhausting remedy before the \nCourt of Sessions, which has got concurrent jurisdiction. However, for \nextraneous or special reasons, the High Court can also exercise such \npower for grant of the remedy under the said provision\u201d.\u201d <\/p>\n\n\n\n
\n Interestingly enough, it is then observed in para \n27 that, \u201cHaving held in such manner, now let me see whether the \npetitioner has approached this Court with any such extraneous or special\n reason.\u201d<\/p>\n\n\n\n
\n Briefly stated, it is then recapitulated in para 28 that, \u201cFactual \nmatrix of the case is that an FIR was lodged by informant Sri Atul Kumar\n Singh, Officer In-charge of Police Station Kotwali Nagar, District Rae \nbareli in Case Crime No. 476 of 2019, under Sections 419, 420, 467, 468,\n 471 IPC against the applicant. It is alleged in the FIR that the \ncomplainant along with S.I. Pawan Pratap Singh, S.I. Umesh Chandra, S.I.\n Vivek Tripathi and some police constables were engaged in checking of \nthe vehicles. In the meantime, they received an information through \n\u201cMukhbir\u201d that a Bolero vehicle is on the way in which 7-8 persons are \nseated and they are in possession of Ganja. It is also alleged that the \nBolero was stopped and five persons were arrested. The arrested persons \nwere disclosed their identity as Jitreya Tarabdar, Radheshyam Viswas, \nJayant Sardar, Brojoshish Viswas and Bobby Halder.\u201d<\/p>\n\n\n\n
\n Moving on, para 29 then discloses that, \u201cIt has been averred by the \napplicant in the bail application that he is a member of Gram Sabha and \ndue to difference in opinion between him and the Gram Pradhan, he has \nbeen falsely implicated in the present case by the local police. In the \nearlier occasion also, the son of the applicant, namely, Vikas Kumar was\n falsely implicated in a case at the instance of the same Gram Pradhan. \nIt is also disclosed in the application that against the present \napplicant, a criminal case is pending before the court of Additional \nDistrict Judge VIth, Raebareli arising out of Case Crime No. 71 of 2018,\n under Section 8\/20 of N.D.P.S. Act but in the entire application, the \napplicant has not disclosed the urgency for filing the instant \napplication before this Court directly.\u201d<\/p>\n\n\n\n
\n As it turned out, para 30 then sums up saying that, \u201cIn view of the \nabove facts and circumstances the learned Counsel for the applicant also\n failed to explain as to why he has rushed to this Court directly for \nseeking said discretionary relief under the provisions of Section 438 of\n Cr.P.C. He has also failed to disclose any extraneous or special \nreason.\u201d Para 31 then states that, \u201cLastly, learned Counsel for the \napplicant has sought permission to withdraw the bail application with \nliberty to approach the concerned Sessions Court.\u201d<\/p>\n\n\n\n
\n Finally and most crucially, it is then held in para 32 that, \n\u201cConsidering the abovesaid circumstances and the request made by the \nlearned Counsel for the applicant for withdrawing the bail application \nwith liberty to approach the concerned Sessions Court and also in the \ninterest of justice, the instant bail application is dismissed as \nwithdrawn with liberty to the applicant to approach the concerned \nsessions court and file an application under Section 438 of Cr.P.C.\u201d\u00a0\u00a0\u00a0\u00a0\u00a0 In a nutshell, this extremely laudable, latest and landmark judgment which has been delivered recently by the Allahabad High Court has served to send an unmistakable message to all litigants that they should first approach the Sessions Court only and only then should they knock the doors of the High Court. The benefits of doing so has already been pointed out in detail above. It is only under exceptional circumstances that the litigant can approach the High Court directly without approaching the Sessions Court which has to be explained also. Such permission also cannot be granted as a matter of routine unless there are \u201cextraneous or special reasons\u201d to do so! In this present case, the applicant clearly failed to prove any such \u201cextraneous or special reasons\u201d and so had no option but to withdraw the plea and the Allahabad High Court was magnanimous enough to grant the permission to do so accordingly with liberty to approach the Sessions Court! Very rightly so!<\/p>\n