2019 (7) TMI 1812 - HC - Indian Laws

Maintainability 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.

Summary

Issues Involved:
1. Maintainability of anticipatory bail application under Section 438 of Cr.P.C. before the High Court without first approaching the Sessions Court.
2. Factual matrix of the case and whether the applicant has shown any special or extraneous reasons for directly approaching the High Court.

Issue-wise Detailed Analysis:

1. Maintainability of Anticipatory Bail Application:
The primary legal question addressed is whether an application under Section 438 of Cr.P.C. is maintainable directly before the High Court without first exhausting the remedy before the Sessions Court. The court examined the concurrent jurisdiction conferred by Section 438 of Cr.P.C., which allows both the High Court and the Sessions Court to entertain anticipatory bail applications. The court noted that the provision does not explicitly mandate that the Sessions Court must be approached first. However, it is generally desirable for the Sessions Court to be approached first, as it provides the High Court with the advantage of considering the Sessions Court's opinion and helps manage the High Court's workload.

The court referred to several rulings, including the Supreme Court's observations in Gurubaksh Singh Sibbia Vs. The State of Punjab and Sarbajit Singh Vs. The State of Punjab, which highlighted the broad and unqualified terms of Section 438 and the wide discretion conferred on the courts. The court also noted the Karnataka High Court's stance in K.C. Iyya Vs. State of Karnataka and Shivasubramanyam Vs. State of Karnataka, emphasizing that the High Court should only entertain such applications under exceptional or special circumstances.

Ultimately, the court concluded that while the High Court has the discretion to entertain anticipatory bail applications directly, it should generally direct the applicant to approach the Sessions Court first unless special reasons or circumstances are demonstrated.

2. Factual Matrix and Special Reasons:
The factual matrix involved an FIR lodged against the applicant under various sections of the IPC for alleged possession of Ganja. The applicant claimed false implication due to a dispute with the Gram Pradhan and mentioned a pending criminal case against him. However, the applicant failed to disclose any urgency or special reasons for directly approaching the High Court.

The court found that the applicant did not provide any extraneous or special reasons to justify bypassing the Sessions Court. Consequently, the court dismissed the anticipatory bail application, allowing the applicant to withdraw the application with liberty to approach the Sessions Court.

Conclusion:
The court held that anticipatory bail applications under Section 438 of Cr.P.C. are not maintainable before the High Court without first exhausting the remedy before the Sessions Court, except under special or extraneous circumstances. The applicant's failure to demonstrate such circumstances led to the dismissal of the application, with the option to approach the Sessions Court.