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TMI Blog2019 (12) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeared to principally arise:- "The present application under Section 438 Cr.P.C. for anticipatory bail has been moved after rejection of a similar application by the Sessions Judge. The issue which would consequently arise would be whether the application would be maintainable since as per the provision, an order once passed shall not be construed as an interlocutory order for the purposes of the Code. Learned counsels have also referred to the views expressed by two learned Judges in Criminal Misc. Bail Application No. 44895 of 2019 [Neeraj Yadav And Another Vs. State of U.P. And 2 Others] and Bail Application No. 6478 of 2019 [Harendra Singh @ Harendra Bahadur Vs. The State of U.P.]. According to learned counsels since the statute confers concurrent jurisdiction, it would be incorrect for the Court to take the view that the applicant must first exhaust the remedy before the Sessions Court before applying to the High Court. The perceived inconsistency is addressed on the basis of the views expressed on the two applications aforementioned. The third issue which would arise for consideration would be that if the Court were to accept the view expressed in Harendra Singh what wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1)." The said provision as re-enacted in 2019 reads thus:- "438. Direction for grant 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 the 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard when the application shall be finally heard by the Court. (4) On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order. (5) The High Court or the Court of Session, as the case may be, shall finally dispose of an application for grant of anticipatory bail under sub-section (1), within thirty days of the date of such application; (6) Provisions of this section shall not be applicable,-- (a) to the offences arising out of,-- (i) the Unlawful Activities (Prevention) Act, 1967; (ii) the Narcotic Drugs and Psychotropic Substances Act, 1985; (iii) the Official Secret Act, 1923; (iv) the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. (b) in the offences, in which death sentence can be awarded. (7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session." [Vide U.P. Act No. 4 of 2019, S. 2 (Received the assent of the President on 1-6-2019 and published in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and Neeraj Yadav And Another Vs. State of U.P.2 F. Impact of the Explanation to Section 438(2) Cr.P.C. G. The period for which anticipatory bail should operate. Leading submissions on behalf of the applicants, Sri Imran Ullah firstly referred the Court to the 203rd Report of the Law Commission of India submitted in December 2007. According to Sri Imran Ullah it is the recommendations contained in this report that appear to have guided the Legislature in framing Section 438 as it stands introduced in its application to the State of U.P. Taking the Court through the note on concurrent jurisdiction Sri Imran Ullah drew the attention of the Court to paragraph 6.4.1 of the report which reads thus:- "6.4.1 One of the objections raised against the amended section has been that if the applicant seeking anticipatory bail is required to be compulsorily present in the Court in terms of new sub-section (1B), he is most likely to be arrested from the Court precincts in the event of rejection of his bail. Such an arrest of the applicant will deprive him of his right otherwise available to him to move the alternative forum provided in Section 438 of the Code. Concurrent jurisdiction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n other provisions in the Code which have vested concurrent jurisdiction in the High Court and the Court of Session. For example, both the High Court and the Court of Session have concurrent jurisdiction of revision under Section 397. However, under Section 397 if a person approaches either of these Court, he cannot again agitate that matter by way of revision in the other Court. Whereas there seems to be justifiable reason for conferring concurrent jurisdiction on the High Court and the Court of Session, yet the person seeking anticipatory bail should have been given an option on the lines of Section 397(3). Accordingly, if he approaches either of these two Courts, he should not be allowed again to seek the same relief by way of a substantive application under Section 438 in the other Court. It may be noted as observed by Karnataka High Court in K.C. Iyya and etc. Vs State of Karnataka, 1985 Cri. L.J. 214 that in the matter of bail, either anticipatory as regular, the voice of the Court of Session is not final but is subject to revisional or appellate jurisdiction of the High Court and the Supreme Court. Also in these matters of bail, either anticipatory or regular, the Court of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al forums one after another in exercise of their respective original jurisdiction when efficacious remedy is otherwise available against the order of the Court which may have been chosen by an applicant for relief in the first instance. One fails to understand as to why a provision on the lines of Section 397(3) has not been made in Section 438 whereby once the applicant has availed his option to choose one of the two alternative forums, his recourse to the other forum is foreclosed, if he fails to get the desired relief from the forum he has earlier chosen. Thus, if a person moves the Court of Session for anticipatory bail and fails to get it, then why he should again be allowed to file another substantive application to anticipatory bail to High Court instead of revision, or, as the case may be, appeal against the order ofrejection of the application by the Session Court. Again, if the person has moved the High court in the first instance, does it not look apparently anomalous for the same person to move the lower Court, namely, the Court of Session for the same relief on the same facts that has been denied to him by the High Court? Theoretically, it is permissible. But, as a mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to secure the ends of justice or to prevent miscarriage of justice or illegal exercise of jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 or underArticle 227 in exceptional cases. [See Shyam M. Sachdev Vs State and another, 1991 Cri.L.J. 300 (Delhi)]; Ram Prakash Vs State of H.P. 1979 Cri.L.J. 750 (HP); Bhola and others Vs State 1979 Cri.L.J. 718 (Allahabad); Kamal Krishna De Vs State 1977 Cri.L.J. 1492 (Calcutta)]. The Supreme Court in a number of cases has laid down the scope and ambit of the powers of the courts underSection 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone if exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not considered necessary. To add to it, the applicant may not be ultimately put up for trial if the investigation of the case does not reveal any materialagainst the applicant. In such a scenario, the final order on the application may not be in the nature of interlocutory as the case may stand disposed of finally. Besides, the use of legal fiction is not unknown to Law and it is quite often applied to meet a given exigency or to secure certain ends. It is thus legally feasible to expressly provide in the Law that final orders on an anticipatory bail application may not be construed as interlocutory for the purposes of the Code. And, we recommend accordingly." In conclusion the Law Commission summarised the position in paragraph 6.4.21 as under:- "6.4.21 Accordingly, the position that will so emerge will proceed on the following lines, viz., (i) Both the High Court and the Court of Session will have concurrent jurisdiction to deal with application for directions under Section 438 and it will be open to a person to move either of these two Courts at his option; (ii) Once that option is exercised and that person decides to move one of these Courts, then the person will no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hightened perception of arrest and undue harassment. Dealing with the question of concurrent jurisdiction, the State Law Commission framed its opinion in the following terms:- "8.20 As far as jurisdiction is concerned, as stated earlier, the Commission is of the opinion that: (i) Both the High Court and the Court of Session will have concurrent jurisdiction to deal with application for directions under Section 438 and it will be open to a person to move either of these two Courts at his option: (ii) Once that option is exercised and that person decides to move one of these Courts, then the person will not have any further option to move the other Court; (iii) Where the person chooses to move the Court of Session in the first instance, he may move to the High Court against the order of Court of Session on the application for issue of directions under Section 438; (iv) Where the person chooses to straightaway move the High Court in the first instance, in such a case the person if aggrieved of the High Court's order on his application for direction under Section 438 may have to invoke the extraordinary constitutional powers of the Supreme Court by seeking special lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat section. (3) If such person is thereafter arrested without warrant by an officer-in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that persons, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).)" 9.2 If an application under this section has been made by any person either to the Court of Session or the High Court, no further application by the same person shall be entertained by either of them. We recommend accordingly." According to Sri Imran Ullah, the language employed by Section 438 as introduced clearly establishes the conferment of concurrent jurisdiction on the High Court as well as the Court of Sessions. In view thereof it was his submission that no fetter or restraint can consequently be placed on the exercise of choice by an individual. Sri Imran Ullah would submit that the provision grants complete freedom to the individual to choose to approach ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Sessions may have been created by virtue of the Explanation, that could not be construed as barring the jurisdiction of the Court otherwise vested by Section 438. Sri Khan then referred the Court to the decision rendered by a Full Bench of the Himanchal High Court which had dealt with an identical controversy albeit in the context of anticipatory bail and a revision under Section 397 of the Code. The Full Bench of the Himanchal High Court in Mohan Lal and others etc. v. Prem Chand and others etc3 held thus:- " 10. S. 438 of the new Code makes a specific provision, unlike the old Code, for anticipatory bail. The relevant part of this Section reads thus:- "438 (1). When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.................." It is obvious that the High Court as well as the Court of Session have been given concurrent jurisdiction to grant anticipatory bail. 11. A bare reading of the Section show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Our answers to the questions referred to the Full Bench are that persons can apply for revision or anticipatory bail to the High Court direct without first invoking the jurisdiction of the Sessions Judge." Learned counsel then referred the Court to a judgment rendered by a learned Judge of this very Court in Jagdish Kumar Vs. District Judge, Budaun and Others4 where the question which arose for consideration was the ambit of the concurrent jurisdiction conferred upon the High Court and the District Court by Section 24 of the Civil Procedure Code. Sri Imran Ullah referred the Court specifically to the following paragraphs of that decision: "21. The jurisdiction conferred under Section 24 of the Code is concurrent does not conceive of any scope of doubt. But whether the concurrent jurisdiction means that both the jurisdiction can be availed together or one after the other. The concurrence means both the courts having jurisdiction, the parties are free to approach one or the other. Whenever concurrent jurisdiction has been conferred on the High Court and the District Court, it is provided that if one of the forum is approached, the party would be precluded from approaching the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessful applicant before the District Judge, the order of the District Judge stands overruled by implication on passing of the order by the High Court. As such in the facts and circumstances of the present case, the application under Section 24 of the Code before this Court is maintainable." Sri Dayashankar Mishra, learned Senior Counsel placed his submissions in the backdrop of the decision of the Constitution Bench in Gurbaksh Singh Sibbia Vs. The State of Punjab5 as also on a judgment rendered by a Division Bench of the High Court of Uttarakhand in Mubarik & another v. State of Uttarakhand & others6. According to Sri Mishra, the provisions made in Section 438 are an extension of the guarantee of personal liberty as accorded to all citizens by Article 21 of the Constitution. Sri Mishra contended that any restraint on the right of an individual to approach the High Court for grant of anticipatory bail or being relegated to the Court of Sessions as a matter of rule before being permitted to approach this Court would be in clear violation of the constitutional guarantee enshrined in Article 21. Sri Mishra submitted that where issues of personal liberty stand raised, the statutory d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Sessions, the decision rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P.8 was per incuriam. Sri Saghir Ahmad learned Senior Counsel adopting and elaborating upon the submissions noted above, drew the attention of the Court to a decision rendered by a Full Bench of the Calcutta High Court in Diptendu Nayek Vs. State of West Bengal9. According to learned Senior Counsel the aforesaid authority had in unequivocal term answered the questions as framed by the Court by holding that where a party unsuccessfully moved the Court of Sessions initially he would not stand debarred from invoking the powers of this Court as independently conferred by Section 438. Learned Senior Counsel referred to the following principles as enunciated in that decision. "22. Broadly speaking, Section 438 of the Code of Criminal Procedure consists of two parts. The first part sets out the conditions under which a person can make an application for anticipatory bail. The second part confers jurisdiction on the High Court or the Court of Session. Thus the second part can be viewed as strictly jurisdictional; the High Court and the Court of Session have concurrent jurisdiction. Once a Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position with the other comparable provisions. It seems that the legislators did not intend to exclude the one or the other of the two Courts-the High Court or the Court of Session. Had it been so intended, the legislators would have taken care to express that clearly, as they have done in sub-Section (3) of Section 397 and sub-Section (3) of Section 399 of the Code of Criminal Procedure. Mr. Chowdhury has argued that the word "or" occurring in Section 438 is disjunctive in nature. It seems that has, also weighed with A. C. Sen Gupta, J. But the mere fact that it is disjunctive does not mean much in this case. It may be disjunctive, but necessarily not exclusive. This disjunction is merely temporal; it disjoins but does not exclude the other. At any given point of time, one can approach only one Court and not both the Courts simultaneously. That does not mean that the choice of a person to approach the other Court is foreclosed for ever. There are no, such words that the choice exercised once would become final, so that afterwards he cannot move another Court having competent jurisdiction. The learned Judges of the Division Bench in the case of Amiya Kumar have also observed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Division Bench of the Calcutta High Court, reported in 1979 Cr. LJ 288. 24. Thus the conclusion is reached that a party, after unsuccessfully moving the Court of Session for anticipatory bail can again approach the High Court for the same purpose, as that is not expressly or by implications barred. The view of Khastgir, J. in the Division Bench out of which this reference arises is the correct view. The matter should now go back to the Division Bench for disposal of the petition on merits. Haridas Das, J. I agree. Application disposed of." Sri Sushil Shukla learned counsel submitted that the reading of any restriction bearing upon the concurrent jurisdiction as conferred by Section 438 Cr.P.C. upon the High Courts and the Courts of Sessions would run contrary to the principles enunciated by the Constitution Bench in Sibbia. It was submitted that where the statute itself did not place any fetter on the exercise of power by the Courts, it would be wholly impermissible to read a restriction by way of statutory interpretation. According to Sri Shukla it was the evolution of standards and restrictions not otherwise finding place in Section 438 Cr.P.C. by the Full Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second application before this Court once a prayer for anticipatory bail had come to be rejected by the Court of Sessions. According to Sri Yadav once the Court of Sessions has proceeded to reject a prayer for anticipatory bail, the only remedy available to an individual would be to assail the same by way of revision. Sri I.P. Srivastava and Sri Vikas Sahai learned A.G.As. have contended that the provisions of Section 438 Cr.P.C. as introduced do not appear to debar the jurisdiction of this Court notwithstanding an application for grant of anticipatory bail having been rejected by the Court of Sessions. It was however contended that Harendra Singh lays down the correct position in law when it requires parties to establish the existence of exceptional and special circumstances. According to learned A.G.As. if such a restraint were not to be not read in Section 438 Cr.P.C., it would lead to a situation where this Court would be flooded with applications for anticipatory bail and thus the legislative intent of conferring Courts of Sessions with concurrent jurisdiction itself be rendered nugatory. Learned A.G.As. relied upon the decisions of different High Courts as noticed in Harendr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing such a bar to actually exist, it must be apparent and clearly evidenced either from a reading of the statute itself or from a specific provision made in this respect. Insofar as Section 439 Cr.P.C. goes, undisputedly a practice appears to have evolved over the decades of parties approaching the Sessions Court by way of an application for bail initially and only after its disposal to move the High Court. This, however, appears to have come to hold the field merely as a rule of convenience since parties do not dispute that the High Court could be independently moved under Section 439 irrespective of whether the avenue as available before the Court of Sessions has been exhausted or not. Practice, however, cannot be elevated to the position of an inviolable rule or one that brooks of no exception. In any case a practice cannot be conferred a judicial imprimatur when such construction would run contrary to the plain language and intendment of the statutory provision. Practice also cannot be accorded a status that either subsumes the clear intent of the statute or restrict its operation. On a fundamental level, therefore, it would be incorrect to hold that Section 438 Cr.P.C. either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e District Magistrate or the Sessions Judge reports in favour of the accused, be need not be represented in the High Court, particularly when the illegality of the conviction or the severity of the sentence is patent. On the other hand, if such a salutary rule of practice were not to prevail, there would be a temptation, and even an encouragement, to accused persons to come up straight to the High Court over the head of the District Magistrate or the Sessions Judge concerned, because the latter can only report to the High Court and cannot themselves pass an order in favour of the accused. Many accused persons may therefore think it more expeditious and much cheaper to come up straight to the High Court. The High Court would then be flooded with such applications. On these grounds it seems that a practice of a long standing has grown up under which the High Court does not ordinarily, entertain an application in revision unless the District Magistrate or the Sessions Judge has been moved first." 10. There are, however, several authorities in support of the view that the practice recognised in the case of Shailabala Devi v. Emperor AIR (1) is not an absolute one and there may be ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub-section. The controversy therefore is not whether the court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existence of which bail can be granted. When a tribunal is invested by an Act or by rules with discretion without any indication in the Act or rules of the grounds upon which the discretion is to be exercised, the Courts have declined to lay down any rules with a view to indicate the particular grooves in which the discretion should run on the ground that if the Act or rules do not fetter the discretion of the Judge why should the courts do so. (See Gardner v. Jay (1885) 29 Ch D 50 and Hume v. Poresh Chunder AIR 1914 Cal 597 : 15 Cri LJ 49 (SB)). ..... 12. We therefore answer the question under reference in the affirmative and hold that a bail application under Section 438, Code of Criminal Procedure, 1973 may be moved in the High Court without the applicant taking recourse to the court of Sessions. " It must therefore, be held that 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons or special circumstances to entertain the said application. 19. In the case of Sri Kwmta Gwra Brahma Vs. State of Assam (Bail No.3024 of 2014), 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. 20. The intention of bringing out Section 438 of Cr.P.C. is enabling each and every person in the country if under extraordinary circumstances under exigencies either to approach the Court of Sessions or the High Court which can be concurrently exercised by both the courts. Though such remedy, cannot be riddled down by imposing any extraordinary condition but still the Court can refuse to entertain the bail petition and direct the party to approach the Court of Sessions first because Section 438 of Cr.P.C. shall not be exercised as a matter of right by the party, though it can be invoked either before the Sessions Court or before the High Court. It is purely the discretionary power of the Court to exercise power depending upon the facts and circumstances of each case. Therefore, the High Court can direct the party to go first before the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." On an ultimate analysis of the law rendered on the subject, the learned Judge recorded the the following conclusions:- "26. Hence, I answer the point raised as follows: "The bail application filed under Section 438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision." The reasons which are assigned by Hon'ble Chandra Dhari Singh, J. in Harendra Singh are not only convincing and compelling, but also clearly appear to be expedient and prudent. The Legislature in its wisdom conferred concurrent jurisdiction on the Court of Sessions perhaps bearing those very reasons in mind. The constraints of access to justice, of distances, the expense of litigation are all relevant factors which appear to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. The learned Judge further went on to observe in the ultimate conclusion drawn that for "extraneous" (sic) or special reasons the High Court could also exercise the powers conferred by Section 438 Cr.P.C. notwitstanding the Court of Sessions having not been moved. What appears upon a holistic reading of that decision is the intent of the learned Judge to convey the duty of the applicant approaching the High Court to establish the existence of exceptional and special circumstances. The only clarification which, therefore, would merit being entered is with regard to the requirement of proving the existence of extraordinary or exceptional circumstances. The words "exceptional" or "extraordinary" are understood to mean atypical, rare, out of the ordinary, unusual or uncommon. If the jurisdiction of the Court as conferred by Section 438 Cr.P.C. be circumscribed or be recognised to be moved only in exceptional situations it would again amount to fettering and constricting the discretion otherwise conferred by Section 438 Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reading into the statute condition which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code. 14. Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing therein were entered in the context of the principles formulated by the Full Bench of the Punjab and Haryana High Court relating to the exercise of power under Section 438 itself. The issue of a self imposed restraint exercised by the High Court in light of the contemporaneous jurisdiction conferred on the Court of Session was not a question directly in issue. The argument of per incuriam is thus liable to be and is consequently rejected. The legal position which consequently emerges is that notwithstanding the concurrent jurisdiction being conferred on the High Court and the Court of Session for grant of anticipatory bail under Section 438 Cr.P.C., strong, cogent, compelling reasons and special circumstances must necessarily be found to exist in justification of the High Court being approached first and without the avenue as available before the Court of Sessions being exhausted. Whether those factors are established or found to exist in the facts of a particular case must necessarily be left for the Court to consider in each case. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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. The ultimate conclusion which came to be recorded cannot possibly be read oblivious of the observations as appearing in paragraph-8 of the report extracted above. 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. QUESTION - F Impact of the Explanation to Section 438(2) Cr.P.C. The Court then takes up for consideration the Explanation appended to sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality stands attached to an order granting or refusing bail since it can always be renewed from time to time. The legislative intent underlying the insertion of this Explanation appears to be only to obviate and overcome this particular situation alone. Consequently, 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the aforesaid legal position, 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. QUESTION G- The period for which anticipatory bail should operate. That then leaves the Court to deal with the last question which was framed relating to the period for which an anticipatory bail should operate. Undisputedly, the question of whether protection accorded under Section 438 should be limited to a fixed period or not has been referred for the consideration of a Larger Bench of the Supreme Court in terms of the order passed in Sushila Aggarwal & Ors. Vs. State (NCT Of Delhi) & Anr12. The questions formulated for the consideration of the Larger Bench read thus: "(1) Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail. (2) Whether the life ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia case." However, in HDFC Bank Limited Vs. J.J. Mannan14 after noticing the Constitution Bench decision in Sibbia, it was held: "14. Referring to the decision of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab, wherein the application of Section 438 CrPC had been considered in detail, Mr Dutta submitted that the said provision had been interpreted to be a beneficent provision relating to personal liberty guaranteed under Section 21 of the Constitution. Mr Dutta submitted that the Constitution Bench had observed that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438 CrPC. xxx xxx xxx xxx 18. Furthermore, it has also been consistently indicated that no blanket order could be passed under Section 438 CrPC to prevent the accused from being arrested at all in connection with the case. To avoid such an eventuality it was observed in Adr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .). On such appearance, the accused has to seek regular bail under Section 439 Cr.P.C. and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 Cr.P.C. that does not mean that he is automatically entitled to regular bail under Section 439 Cr.P.C. The satisfaction of the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail." Mhetre was a decision rendered by two learned Judges of the Supreme Court. The decision in HDFC Bank Limited was rendered by a Bench of coordinate strength. However, Satpal Singh which is the latest decision before us has been rendered by a Larger Bench comprising of the three learned Judges of the Court. Even the Bench of three learned Judges who presided over the matter of Sushila Aggarwal & Ors have made the following observations: "9. Also having heard learned counsel appearing on both sides, we are of the prima facie view that the Constitution Bench in Sibbia (supra) has not laid down the law that once an anticipatory bail, it is an anticipatory bail foreve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". That is what is meant by a ''blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code." (Emphasis supplied) 11. In the light of the conflicting views of the different Benches of varying strength, we are of the opinion that the legal position needs to be authoritatively settled in clear and unambiguous terms." 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. CONCLUSIONS In light of what has been held above, the Court records its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. F. Till such time as the question with respect to the period for which an order under Section 438 Cr.P.C. should operate is answered by the Larger Bench, the Court granting anticipatory bail would have to specify that it would 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. Before parting and proceeding to deal with individual matters, it would be pertinent to enter the following note of caution. Section 438 Cr.P.C. came to be reintroduced in the State in June 2019. It provides a salutary and meaningful remedy to individuals in tune with the constitutional guarantee of personal liberty and provides a remedy to persons against the ignominy of unwarranted harassment and arrest. However in order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or offences for which he is arrested. (viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government Advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage." Reverting to the facts of the present application, the Court notes that the FIR was registered on 11 July 2019. The Court of Sessions was moved sometime in October 2019 and the said application came to be dismissed by the Sessions Judge on 16 October 2019. In the entire petition, there is no allegation or affirmation that the applicant apprehends arrest. No factual foundation has been laid in the application except to the extent of an assertion that the applicant has been falsely implicated in the case. In the absence of even a rudimentary foundation having been laid with respect to the perceived apprehension of arrest, the Court comes to the conclusion that no ground has been made out fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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