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2019 (7) TMI 1812 - HC - Indian LawsMaintainability of application before High Court - remedy under Section 438 of Cr.P.C. before the Court of Sessions which has concurrent jurisdiction with that of the High Court, is not exhausted - Grant of Anticipatory Bail - HELD THAT:- In the case of Gurubaksh Singh Sibbia Vs. The State of Punjab; [1980 (4) TMI 295 - SUPREME COURT] and Sarbajit Singh and another Vs. The State of Punjab [2009 (5) TMI 980 - SUPREME COURT], the Apex Court while dealing with the provisions of Section 438 of Cr.P.C., has laid down certain important aspects. The Apex Court after considering the observation of the High Court of Punjab, has laid down certain guidelines as to under what circumstances, the discretion vested under Section 438 of Cr.P.C., can be exercised. The party has to approach the Sessions Court first and then he has to approach the High Court which is the normal course. But the courts have also observed that in extraordinary circumstances with special reasons, the party can also approach the High Court. The High Court cannot entertain Section 438 of Cr.P.C., as a matter of routine without examining whether there are any special reasons or special circumstances to entertain the said application - In the case of Sri Kwmta Gwra Brahma Vs. State of Assam [2015 (4) TMI 1303 - GAUHATI HIGH COURT], the Gauhati High Court has also expressed similar view and held that the party has to approach the Court of Sessions first under Section 438 of Cr.P.C., and he can later approach the High Court. The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going through the entire materials on record. In that context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case, with expedition - Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said provision. The learned Counsel for the applicant failed to explain as to why he has rushed to this Court directly for seeking said discretionary relief under the provisions of Section 438 of Cr.P.C. He has also failed to disclose any extraneous or special reason. Permission to withdraw the bail application with liberty to approach the concerned Sessions Court - HELD THAT:- The instant bail application is dismissed as withdrawn with liberty to the applicant to approach the concerned sessions court and file an application under Section 438 of Cr.P.C.
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