2019 (12) TMI 1436 - HC - Indian Laws

Grant of anticipatory bail - Nature of the concurrent jurisdiction conferred by Section 438 Cr.P.C. - Whether parties should be commanded to necessarily approach the Sessions Court first before invoking the jurisdiction of this Court under Section 438 Cr.PC.? - HELD THAT - On a plain reading of Section 438 Cr.P.C. it is evident that both the High Court and the Court of Sessions are conferred with a concurrent jurisdiction to entertain an application for anticipatory bail. It essentially enables the party to exercise a choice of moving either the High Court or the Sessions Court for the consideration of an application seeking anticipatory bail depending upon the exigencies of the situation. The statute as is manifest places no restriction on the exercise of this choice. It is in this sense akin to Section 439 Cr.P.C. which too confers concurrent jurisdiction on the Court of Sessions and the High Court. The distinction between the two only being that while Section 438 Cr.P.C. deals with pre-arrest bail Section 439 Cr.P.C. is liable to be invoked once a person has been arrested and taken into custody - Section 438 Cr.P.C. as introduced by the Legislature thus puts in place two possible avenues for redress leaving it open to the individual to exercise a choice to move either the High Court or the Court of Sessions for consideration of a prayer for grant of anticipatory bail. The Court consequently finds itself unable to either recognize or read that provision as mandating the Court of Sessions being necessarily moved in the first instance before the jurisdiction of this Court is invoked. The Court also finds itself unable to discern any legislative intendment that may support the contention that the jurisdiction of this Court may be invoked only once an applicant has exhausted the remedy as available before the Court of Sessions. The Courts should have unfettered discretion and may entertain revision notwithstanding the prevailing practice if they feel justified on the basis of facts and circumstances of each case - thus Section 438 Cr.P.C. on its plain terms does not mandate or require a party to first approach the Sessions Court before applying to the High Court for grant of anticipatory bail. The provision as it stands does not require an individual first being relegated to the Court of Sessions before being granted the right of audience before this Court. In what circumstances can the High Court be approached directly under Section 438 Cr.P.C.? - HELD THAT - While there exists no fetter or restriction upon the High Court entertaining an application under Section 438 Cr.P.C. directly it would ultimately depend upon the discretion of the Judge available to be exercised in the facts and circumstances of each case and upon finding special circumstances which warrant this Court to invoke its jurisdiction in the first instance rather than relegating the party to the Court of Sessions. Exceptional or Special Circumstances requiring the party to invoke the jurisdiction conferred on a Court of Sessions must be recognized as the normal course and the High Court entitled to be moved only in extraordinary circumstances and special reasons - HELD THAT - What would constitute special circumstances in light of the nature of the power conferred must also be left to be gathered by the Judge on a due evaluation of the facts and circumstances of a particular case. It would perhaps be imprudent to exhaustively chronicle what would be special circumstances. As noticed above it would be impossible to either identify or compendiously propound what would constitute special circumstances - Without committing the folly of attempting to exhaustively enunciate what would constitute special circumstances or being understood to have done so the High Court would be justified in entertaining a petition directly in the following amongst other circumstances - (A) Where bail regular or anticipatory of a coaccused has already been rejected by the Court of Sessions; (B) Where an accused not residing within the jurisdiction of the concerned Sessions Court faces a threat of arrest; (C) Where circumstances warrant immediate protection and where relegation to the Sessions Court would not subserve justice; (D) Where time or situational constraints warrant immediate intervention. These and other relevant factors would clearly constitute special circumstances entitling a party to directly approach the High Court for grant of anticipatory bail. Perceived conflict between the decisions rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P.11 and Neeraj Yadav And Another Vs. State of U.P Turning then to the issue of the perceived conflict between the views expressed in Harendra Singh and Neeraj Yadav - HELD THAT - While Harendra Singh fails to notice the decision of the Full Bench in Onkar Nath Agrawal the conclusions ultiamtely recorded by the learned Judge are in tune with what was ultimately laid down as the law by the Full Bench. It must also be borne in mind that Neeraj Yadav is firstly not a judgment but an interlocutory order. Although the same came to be passed after the final judgment was rendered in Harendra Singh the learned Judge has not noticed the principles expounded in Harendra Singh. Notwithstanding these aspects surrounding the decisions aforementioned this Court is of the firm view that there is essentially no conflict in the two decisions. While the the Full Bench in Onkar Nath Agrawal did hold that an application for anticipatory bail may be moved in the High Court without the applicant taking recourse to the Court of Sessions it had also pertinently observed that there may be cases where the High Court may feel justified in asking the applicant to move the Sessions Court or even refer the matter to that Court on its own. The Full Bench clearly left it upon the discretion of the Judge hearing the case - As this Court reads the two decisions referred to by parties it is manifest that there is no irreconcilable conflict in the views expressed. The decision in Harendra Singh as well as the interlocutory order made in Neeraj Yadav must be read in light of the authoritative pronouncement rendered by the Full Bench in Onkar Nath Agarwal and this Court finds no justification in the submission that the two take divergent or incompatible views. Impact of the Explanation to Section 438(2) Cr.P.C. - HELD THAT - All that can possibly be deduced from the Explanation is that a party would have the right to assail and challenge an order rejecting an application for grant of anticipatory bail or an interim measure of protection passed on such an application in accordance with law and the provisions made in the Code. On such challenges being initiated the orders passed under sub-section (1) of Section 438 would not be liable to be construed as interlocutory orders. The Explanation also appears to be a clear manifestation and adoption of the recommendations made by the Law Commission in its reports noticed hereinbefore namely of the need to create an avenue to challenge orders passed on applications for anticipatory bail. The question which however remains to be answered is whether the Explanation so appended would foreclose the right of parties to move the High Court even after an application for anticipatory bail has come to be rejected by the Court of Sessions. The answer to this question must necessarily be in the negative for reasons which follow. At the very outset it must be noted that Section 438 on its plain terms does not engraft or put in place such a bar. An order passed by the Sessions Court rejecting an application for grant of anticipatory bail is not conferred any finality - The insertion of the Explanation does not lead this Court to hold that it denudes this Court of the jurisdiction to entertain and decide an application for anticipatory bail notwithstanding a similar application having been denied by the Court of Sessions. The mere creation of a remedy cannot be read as debarring the jurisdiction of a superior Court. There must necessarily be an express legislative command and intendment in support of such a contention. The Court also bears in mind that while the Law Commission Reports did recommed the insertion of a provision denying the right of a second application for grant of anticipatory bail that recommendation was not accepted - It is therefore evident that while the Explanation may have created an avenue for an aggrieved person to challenge an order passed under Section 438(1) it cannot be construed or viewed as barring the jurisdiction of the High Court from entertaining an application for grant of anticipatory bail notwithstanding that prayer having been refused by the Court of Sessions. The period for which anticipatory bail should operate - HELD THAT - Judicial propriety and discipline mandates this Court following the view expressed by a larger Bench in a subsequent decision. It would therefore be appropriate and correct to follow the view expressed by the Larger Bench of the Supreme Court in the decisions rendered after Mhetre as laying down the principle liable to be followed till such time as the question is authoritatively settled by the Larger Bench of the Supreme Court. Consequently it must be held that an order granting anticipatory bail would be entitled to continue only till the Court summons the accused based on the report that may be submitted under Section 173(2) Cr.P.C. whereafter it would be open for the applicant on appearance to seek regular bail in accordance with the provisions made in Section 439 Cr.P.C. Application disposed off.

Summary

Issues Involved:
1. The nature of the concurrent jurisdiction conferred by Section 438 Cr.P.C.
2. Whether parties should be commanded to necessarily approach the Sessions Court first before invoking the jurisdiction of the High Court under Section 438 Cr.P.C.
3. In what circumstances can the High Court be approached directly under Section 438 Cr.P.C.
4. Exceptional or Special circumstances.
5. The perceived conflict between the decisions rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P. and Neeraj Yadav And Another Vs. State of U.P.
6. Impact of the Explanation to Section 438(2) Cr.P.C.
7. The period for which anticipatory bail should operate.

Detailed Analysis:

1. Nature of Concurrent Jurisdiction:
Section 438 Cr.P.C. confers concurrent jurisdiction on both the High Court and the Court of Sessions to entertain applications for anticipatory bail. This provision enables the party to exercise a choice of moving either the High Court or the Sessions Court without any statutory restriction on this choice. The Court emphasized that the statute does not mandate that the Sessions Court must be approached first before the High Court.

2. Necessity to Approach Sessions Court First:
The Court held that there is no statutory requirement for a party to first approach the Sessions Court before applying to the High Court for anticipatory bail. Although a practice has evolved of approaching the Sessions Court first, it is a matter of convenience and not a statutory mandate. The Full Bench in Onkar Nath Agrawal emphasized that the High Court has full jurisdiction to entertain applications for anticipatory bail without the applicant first moving the Court of Sessions.

3. Circumstances for Direct Approach to High Court:
The Court stated that while the High Court can entertain an application for anticipatory bail directly, it should be done in exceptional or special circumstances. The Court should not entertain such applications as a matter of routine and should examine whether special reasons or circumstances justify the application being considered by the High Court directly.

4. Exceptional or Special Circumstances:
The Court clarified that "exceptional" or "extraordinary" circumstances should be understood to mean atypical, rare, out of the ordinary, unusual, or uncommon. The discretion conferred by Section 438 Cr.P.C. should not be fettered by rigid rules. The Court provided examples of special circumstances, such as when bail of a co-accused has been rejected by the Sessions Court, or where immediate protection is warranted.

5. Perceived Conflict Between Decisions:
The Court found no irreconcilable conflict between Harendra Singh and Neeraj Yadav. Harendra Singh lays down the principle that the High Court can entertain applications for anticipatory bail directly in special circumstances, while Neeraj Yadav does not contradict this principle but rather emphasizes the need for establishing special circumstances.

6. Impact of the Explanation to Section 438(2) Cr.P.C.:
The Explanation to Section 438(2) Cr.P.C. clarifies that an order passed under sub-section (1) is not to be construed as an interlocutory order. This creates an avenue for challenging such orders but does not bar the High Court from entertaining an application for anticipatory bail even if it has been rejected by the Sessions Court. The absence of a provision similar to Section 397(3) Cr.P.C. in Section 438 indicates no legislative intent to bar the High Court's jurisdiction.

7. Period for Which Anticipatory Bail Should Operate:
The Court noted that the issue of the duration of anticipatory bail is pending before a Larger Bench of the Supreme Court. Until resolved, the Court held that an order granting anticipatory bail should continue only until the Court summons the accused based on the report under Section 173(2) Cr.P.C., after which the accused must seek regular bail.

Conclusion:
The Court concluded that Section 438 Cr.P.C. does not mandate approaching the Sessions Court first and that the High Court can entertain applications for anticipatory bail directly in special circumstances. The Explanation to Section 438(2) does not bar the High Court's jurisdiction, and the duration of anticipatory bail should be limited until the accused is summoned by the Court. The application for anticipatory bail in this case was refused due to a lack of specific allegations or apprehension of arrest.