TMI Blog2015 (4) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... y a person/accused should file an anticipatory bail application u/s 438 of the CrPC or a bail application u/s 439 of the CrPC before the Sessions Court and thereafter he can approach the High Court. However, this is not an inviolable rule. In exceptional circumstances a person/accused can directly approach the High Court. The following are the circumstances under which a person/accused can directly approach the High Court. However, circumstances are illustrative and not exhaustive. There could be other exceptional circumstances which would always depend upon the facts and circumstances of each case: (i) When a person/accused from other State has to move an application for grant of anticipatory bail u/s 438 of the CrPC, if it is convenient for him to move such application before the High Court directly, which is nearer from the point of distance, in such a case the application filed before the High Court need not be rejected on the ground that he can approach the Sessions Court unless the Sessions Court is also located in the same place. (ii) Whenever in a Sessions' jurisdiction a particular incident or crime has attracted a lot of public and media attention with an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of anticipatory bail u/s 438 of the CrPC and grant of bail u/s 439 of the CrPC should exhaust his remedies before the Sessions Court and then file application before the High Court. 2) The provisions of sections 438 and 439 of the Code of Criminal Procedure, 1973 are reproduced hereunder for convenient reference. 438. Direction for grant of bail to person apprehending arrest. (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or Court of Session for a direction under this Section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is remedy before the Sessions Court and thereafter file application before the High Court. 6) In the decisions of the Madhya Pradesh High Court in Abdul Karim Khan v. State of Madhya Pradesh(AIR 1960 MP 54), the Rajasthan High Court in Hajialisher v. State of Rajasthan(1976 CriLJ 1658), the Punjab and Haryana High Court in Chhajju Ram Godara and others v. State of Haryana and another(1978 CriLJ 608), the Bombay High Court in Jagannath v. State of Maharashtra(1981 CriLJ 1808), the Karnataka High Court in K.C. Iyya and etc. v. State of Karnataka(1985 CriLJ 214), the Gujarat High Court in Rameshchandra Kashiram Vora and etc. v. State of Gujarat and another(1988 CriLJ 210), the Madhya Pradesh High Court in Smt. Manisha Neema v. State of M.P.( 2003(2) Crimes 402), and the Kerala High Court in Mathew Zacharish v. State of Kerala(1974 CriLJ 1198) and Usman v. The Sub-Inspector of Police and another(2003 CriLJ 3928), it is held that the accused should first exhaust his remedy before the Sessions Court before making an application to the High Court for grant of anticipatory bail u/s 438 of the CrPC and bail u/s 439 of the CrPC. 7) The reasons stated in the above decisions, by and larg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t should be asked to apply to the Sessions Judge before making an application to the High Court for anticipatory bail u/s 438 of the CrPC. However in para 11 of its judgment the High Court has made the following observations. 11. A bare reading of the section shows that no restriction, unlike SEctions 397(3) and 399(3), has been placed on a person wishing to move the High Court for anticipatory bail. A person is not required to move the Sessions Judge first. It is true that under the old Code whenever a concurrent jurisdiction was conferred on more than one court, the inferior Court was expected, as a matter of practice, to be approached first. However, in the case of anticipatory bail to force a person to move the Sessions Judge first may result in uncalled for curtailment of his right. For various reasons a person may like to move the High Court straightway and may not like to; approach the Sessions Judge. Since the section relates to the liberty of a person, we would not like to impose any kind of restriction on his right to move the High Court in the first instance . 11) The High Court of Calcutta in Diptendu Nayek and others v. State of West Bengal(1993 CWN 119) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that the Code did not confer the right to choose. Even otherwise, the Courts respect the principle of hierarchy. This, however, cannot mean that the doors of this Court shall be shut out to a person whose liberty is under an imminent threat and he will be allowed entry only after the bail has been declined by the Sessions Court. Accepting this principle may result in denial of liberty. We need to remember that for a majority of people, the sight of prison is painful. The thought of the trauma is terrifying. It creates a terror in the mind. The court cannot be mindless of such a person's plight. The need to save him from the shame and shock has to be kept in view. 13. Thus, it is no surprise that the statute has given the applicant a choice. On a plain reading of the statutory provisions, it is clear that the right to choose the forum is with the person who is apprehending arrest or has been actually arrested. This right should not be curtailed by any self-imposed restraint. Such restrictions, as mentioned in the order, can result in more harm than good and defeat the object with which the provision was introduced . 14) After carefully analysing the ratio laid down in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bail application. In the event of rejection of bail application by the Sessions Court the persons/accused can still move the High Court for grant of anticipatory bail u/s 438 of the CrPC or bail u/s 439 of the CrPC, as the case may be.. (iv) The High Court in its writ jurisdiction will have to decide the cases involving the challenge to the actions of the government and statutory authorities etc. Besides, the High Court as a court of appeal and second appeal will have to deal with civil appeals, criminal appeals. The High Court has revisional and inherent jurisdiction under the Code of Criminal Procedure. The High Court under Article 227 of the Constitution of India will have to consider the orders of the tribunals and quasi-judicial authorities; besides, shall have to consider the orders passed by the Civil Courts in the matter of interlocutory application. The quality of work the High Court does is of very important nature which requires laying down the law on the varied and several aspects that come before the High Court in variety of cases. (v) The number of pendency of cases at the High Court would be usually high and a large chunk of the judicial time has to be dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n u/s 438 of the CrPC or a bail application u/s 439 of the CrPC before the Sessions Court and thereafter he can approach the High Court. However, this is not an inviolable rule. In exceptional circumstances a person/accused can directly approach the High Court. The following are the circumstances under which a person/accused can directly approach the High Court. (i) When a person/accused from other State has to move an application for grant of anticipatory bail u/s 438 of the CrPC, if it is convenient for him to move such application before the High Court directly, which is nearer from the point of distance, in such a case the application filed before the High Court need not be rejected on the ground that he can approach the Sessions Court unless the Sessions Court is also located in the same place. (ii) Whenever in a Sessions' jurisdiction a particular incident or crime has attracted a lot of public and media attention with an adverse public opinion having been built up against the person/accused, in such cases the 438-CrPC-applications and 439-CrPC-applications can be filed directly before the High Court. (iii) When the Sessions Court has already rejected an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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