TMI Blog2019 (12) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court were to accept the view expressed in Harendra Singh what would be the special circumstances in which the High Court could be moved first without the applicant being asked to invoke the jurisdiction of the Sessions Judge. As requested by learned counsels appearing in similar matters as well as Sri Sisodia in this application, include in the list of fresh cases of 06 December 2019. In order to facilitate learned counsels to address further submissions, the application and other matters on that date were placed for disposal today. All members of the Bar were requested to address submissions bearing in mind the importance of the questions which stood raised and the impact which they would have on matters likely to come before the Court in future. The Court for the purposes of convenience, shall firstly proceed to note and dispose of the questions which arise and thereafter deal with the merits of the instant application separately. The issues themselves arise in the backdrop of the reintroduction of Section 438 Cr.P.C. by virtue of U.P. Act No. 4 of 2019 w.e.f. 6 June 2019. It would be apposite to recollect that Section 438 Cr.P.C. stood as part of the Code applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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; either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application. (2) Where the High Court or, as the case may be, the Court of Session, considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1), the Court shall indicate therein the date, on which the application for grant of anticipatory bail shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Vide U.P. Act No. 4 of 2019, S. 2 (Received the assent of the President on 1-6-2019 and published in the U.P. Gazette, Extra., Part 1, Section (Ka), dated 6-6-2019).] It would also be pertinent to extract the SOR of the amending Act by virtue of which the provisions was reintroduced. The SOR reads thus:- STATEMENT OF OBJECTS AND REASONS Section 438 of the Code of Criminal Procedure 1973, regarding the provision of anticipatory bail, was omitted by the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act no. 16 of 1976). There is continuous demand for its revival. Writ petitions have also been filed before the Hon'ble Courts for its revival in Uttar Pradesh. The State Law Commission has, in its third report in 2009, also recommended for reviving the provisions of the said section. With a view to considering the revival of the provisions of the said section, a committee has been constituted under tie chairmanship of the Principal Secretary to the Government of Uttar Pradesh in Home Department, consisting of the Special Secretary of Judicial Department, Special Secretary of the Legislative. Department, Director General of Prosecution and Additional D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise available to him to move the alternative forum provided in Section 438 of the Code. Concurrent jurisdiction of the Court of Session and the High Court under Section 438 has generated much litigation. The Code has not prescribed any specific order in which the two alternative forums are to be approached. It is left to the option of the applicant to move either the Court of Session or the High Court for anticipatory bail one after another or in reverse order. There is conflict of opinion amongst various High Courts as to whether the Court of Session should originally be approached in the first instance or the High Court can be straightaway approached for grant of anticipatory bail without first taking recourse to the Court of Session. It may be noted that both Court of Session and the High Court exercised original jurisdiction under Section 438. However, when the High Court is moved after the anticipatory bail application has been dismissed by the Court of Session, the petition for anticipatory bail in the High Court is required to be accompanied with a copy the Session Court's order from which reason for dismissal of anticipatory bail application can be gathered. In such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the High Court and the Supreme Court. Also in these matters of bail, either anticipatory or regular, the Court of Session is given as wide a power of discretion as vests in the High Court. In this connection, the following observations of Chandrachud, C.J. in Gurbaksh Singh Sibbia etc. Vs The State of Punjab, AIR 1980 SC 1632 may be noted. There is no risk involved in entrusting wide discretion to the Court of Session and the High Court in granting anticipatory bail because firstly, these are higher Courts manned by experienced persons; secondly, their orders are not final but are open to appellate or revision scrutiny. 6.4.20 It may be noted in this regard that Inspectors General of Police Conference, 1981, inter alia suggested that Section 438 be amended so as to take away the powers to grant anticipatory bail from the Session Court and vest it only in the High Courts. A Group of officers, constituted pursuant to the decision taken at the meeting of Secretaries held on 2nd July, 1982, too concurred with it when it observed that as sometimes, the Courts take a very liberal view in granting anticipatory bail to criminals, it was considered that such powers should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame relief on the same facts that has been denied to him by the High Court? Theoretically, it is permissible. But, as a matter of propriety and policy, should that person not be made to move the higher judicial forum instead of a lower one in such cases. It is inherent in the scheme of things that when two alternative forums are provided in law for seeking directions for anticipatory bail, one lower and another higher, then the lower should be first resorted to as a matter of principle except in exceptional cases in which event the applicant should be deprived of his option to move the lower forum afresh on the same facts and material. Any different approach may lead to anomalous results where the relief sought at the hands of the High Court having been denied, can again be sought from the lower court without there being any change in the circumstances in which the relief has been denied by the High Court. Theoretically, it may be feasible but in practice it will not be. Such a scenario might not have been in the contemplation of the framers of the law. If that be so, then we fail to understand as to what distinct advantage is intended to be conferred on persons seeking anticipator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eat caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute...The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. (See Inder Mohan Goswami and another Vs State of Uttaranchal and others, 207(12) SCALE 15 at 25).Section 482 is not controlled by Section 397(2) or 397(3). The inherent powers of the High Court are not subjected to the bar contained in Section 397 as the powers of the High Court under these two Sections are distinct, different and mutually exclusive and ought not to be equated. Nothing in the Code nor even the bar under Section 397 affect the amplitude of the High Court's inherent power if glaring injustice stares the Court in the face [See Govind Das Biyani and others Vs Badrinarayan Rathi (1995) 4 Crimes 755 (M.P.); Smt. Chande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, a revision will lie in 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, subject to Court's satisfaction of the special or exceptional circumstances justifying such move, the person will stand deprived of the aforesaid remedy of revision. 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 leave to appeal in the Supreme Court. 6.4.22 We are, therefore, of considered view that Section 438 should be amended so as to contain a provision on the lines of Section 397(3). All other remedies that are presently provided in the Code or otherwise against the final order on an application for anticipatory bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication for direction under Section 438 may have to invoke the extraordinary constitutional powers of the Supreme Court by seeking special leave to appeal in the Supreme Court. It ultimately and in its recommendations proposed the text of Section 438 to be in the following terms :- 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 either to the Court of Session or the High Court 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, repeat the offence and tamper the witnesses; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced 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 either the High Court or the Sessions Court subject to percieved expediencies. In view thereof, it was submitted that no rule or dictum can possibly be formulated requiring individuals to first exhaust the remedy as provided before the Court of Sessions and only thereafter to approach the High Court. Taking the Court both through the recommendations of the Law Commission of India as well as the State Law Commission it was submitted that though both had recommended the introduction of a provision to the effect that once upon exercise of choice by a person to move one of the concurrent jurisdictions, he should not have the option to move the other, it was submitted that the aforesaid recommendation was ultimately not accepted by the Legislature. This submission was addressed in light of the provisions made in sub-section (7) which provides that in case the High Court is moved by an application for grant of anticipatory bail, then that individual cannot thereafter invoke the jurisdiction of the Court of Sessions. Sri Imran Ul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shows that no restriction, unlike Ss. 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 wherever 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. 12. A Division Bench of this Court in Joginder Singh v. State of Himachal Pradesh (ILR (1975) Him Pra 181) held that though a person is at liberty to apply for anticipatory bail to the High Court straightw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction 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 other forum. Inasmuch as in the West Bengal amendment of Section 115 of the Code by which Section 115A has been, inserted. Under the said provisions both High Court and District Court have been empowered to entertain an application under Section 115 of the Code. Under sub-sections (3) and (4) thereof it has been provided that if either of the court is approached, no further revision shall be entertained between the same parties either by the High Court or the District Court as the case may be. Similar provision has also been incorporated in Section 397 of the Cr.P.C. where in sub-section (3) similar exclusion of jurisdiction by the High Court or Sessions Court having concurrent jurisdiction has been provided. In the absence of specific prohibition or exclusion of jurisdiction, Section 24 of the Code cannot be interpreted to mean that the jurisdiction of the one court is to the exclusion of the other. But a situation may arise where the High Court having been unsuccessfully approached, a party may approach to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 discretion as conferred can neither be placed in shackles nor can the exercise of choice by the individual be fettered by any restraint. Turning then to the decision rendered by the High Court of Uttarakhand in Mubarik, it was submitted that the said authority applies to the questions raised on all fours since that High Court had clearly recognised the unfettered right of the accused to choose the forum and that the said right could not be restricted by construing the provisions of Section 438 narrowly. Sri Mishra also referred the Court to the provisions made in Section 397(3) to submit that wherever the Legislature had though fit to bar the jurisdiction of a particular Court once a remedy had been availed either before the lower court or the superior court, a specific provision had been made and put in place in the statute itself. It becomes relevant to note that Section 397(3) provides that where any person has moved the High Court or the Court of Sessions by way of a revision, he stands debarred fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 is invested with jurisdiction, that jurisdiction subsists all along unless taken away expressly or by implication. There are no express words in the Section itself, indicating that the jurisdiction is taken away under any circumstances. It does not appear that by implication even the jurisdiction of either of the Courts is taken away or put an end to. Mr. Chowdhury, the learned Additional P.P., has contended that the use of the conjunction or in between the High Court and the Court of Session clearly indicates that a party has only one choice of approaching one Court or the other. That was also the view of the Division Bench of the Calcutta High Court in the case of Amiya Kumar, reported in 1979 Cr. LJ 288. The learned Judges in that case referred to Rowe and Webb for a grammatical construction. Four uses have been referred to by the learned authors with reference to or but for our present purpose, it is sufficient to note that the learned authors themselves have pointed out that or is somet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the restriction as to the choice of the Court would also be further evidenced from the use of the words that court may in the Section indicating singular number. It is not felt how the use of the singular number can connote anything, because, as has been pointed out before, at any point of time, a party can approach a single Court and not two or more Courts simultaneously. In the Full Bench case of the Himachal Pradesh, report in AIR 1980 Himachal Pradesh 36, it has been held that a person can move an application for anticipatory bail in the High Court even though a similar application of his has been rejected by the Sessions Judge, for, while doing so he does not invoke the revisional jurisdiction of the High Court but applies under Section 438 of the Code of Criminal Procedure. With respect, we agree to the proposition. In the case reported in 1986 Cr. LJ 1742, a learned single-Judge of the Kerala High Court has laid down the same proposition. It has been observed that Section 438 was not inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Bench of the Punjab and Haryana High Court which were ultimately set aside by the Constitution Bench in Sibbia. Insofar as the Explanation appended to sub section (2) was concerned, Sri Shukla also contended that while that provisions may have created a remedy of a revision, the same cannot be read as ousting or debarring the jurisdiction of this Court even though an earlier application may have been rejected by the Courts of Sessions. Sri Yadav learned counsel placed reliance upon the principles elucidated by the Constitution Bench in the matter of Ranchhoddas Atmaram And Another v. Union of India And Others10 to submit that the opening part of Section 438 Cr.P.C. is framed and couched in positive terms. In view thereof it was his submission that the use of the word 'or' between the High Court and the Court of Sessions clearly evidences the intent of the legislature for it to mean 'either'. Reliance was principally placed on the following propositions as laid down in that dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Harendra Singh to submit that the principle so formulated clearly placed the rights of parties in the balance and must consequently be affirmed as being the correct position in law. Having noticed the rival submissions, the Court proceeds to rule upon the questions as formulated. QUESTION A - The nature of the concurrent jurisdiction conferred by Section 438 Cr.P.C. QUESTION B - Whether parties should be commanded to necessarily approach the Sessions Court first before invoking the jurisdiction of this Court under Section 438 Cr.PC. Since Questions A and B are interlinked, they can be conveniently considered and disposed of together. 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 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 mandates or envisages the Court of Sessions being moved first before a party becomes entitled to approach this Court by way of an application seeking anticipatory bail. Dealing with the issue of practice of parties being compelled to approach the Court of Sessions first under Section 439 Cr.P.C., the Full Bench of this Court in Onkar Nath Agrawal observed thus: - 9. We may now consider the authorities cited by the learned Government Advocate in support of his contention. These authorities relate to applications for revision under the provisions of Sections 435 and 439 of the Code of Criminal Procedure, 1898. In the authority reported in Shailabala Devi v. Emperor (1) one of the questions was whether an application in revision should be entertained by the High Court when the mater has not first been taken to the District Magistrate or the Sessions Judge. Sir, Shah Sulaiman, C. J., held that the High Court has full jurisdiction to entertain such an applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exceptions to it. Accordingly in the case of S. P. Dubay v. Narsingh Bahadur (supra) it was held that though the normal practice for the High Court is to refuse to entertain application where the applicant did not approach the Sessions Judge first, but there is no hard and fast rule and in suitable cases the High Court has been known to depart from this practice and to accept revisions that have not been previously considered by a Sessions Judge...... Similarly in Municipal Board v. Bhim Singh (supra) D.S. Mathur, J. as he then was observed: But where the High Court entertains a revision directly without the party having approached the Sessions Judge there would be no illegality but a mere departure from the above practice....... 11. The recent view, therefore, appears to be that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. .... 26. We find a great deal of substance in Mr. Tarkunde's submission 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, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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. QUESTIONS C - In what circumstances can the High Court be approached directly under Section 438 Cr.P.C. That then takes the Court to consider the question of when should the High Court entertain an application for anticipatory bail directly. Hon'ble Chandra Dhari Singh, J. after noticing the views taken by different High Courts in Harendra Singh has proceeded to hold that in extraordinary circumstances and where special reasons exist, the party can also approach the High Court directly. The only note of caution which was entered by the learned Judge was that the Court cannot entertain an application for grant of anticipatory bail as a matter of routine and without examining whether any special reasons or circumstances exist justifying the application being considered by the High Court directly. Noticing the decisions rendered by the Karnataka High Court as well as the Gauhati High Court, the learned Judge identified and assigned valid and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 Court of Sessions and then come to the High Court though there is no embargo under the statute itself, but the Court can do so on the basis of various factors. 21. It is worth to note here that whenever the concurrent jurisdiction is vested under the statute simultaneously in two courts of one is superior to the other, then it is appropriate that the party should apply to the subordinate Court first, because the higher Court would have the advantage of considering the opinion of the Sessions Court. Moreover, the party will get two opportunities to get the remedy either before the Sessions Court or before the High Court but if once he approaches the High Court, he would run the risk that, the other remedy is not available to him if he failed to get the order in the High Court, he cannot go before the Sessions Court for the same remedy. However, vice versa is possible. 22. It is also to be notable that the Sessions Court will always be nea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 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 have guided the Legislature in clothing the Court of Sessions with contemporaneous jurisdiction. However and notwithstanding the compelling and judicious imperatives in favor of the formulation of these factors in justification of relegation to the Court of Sessions, it must be remembered that the said caveat can only be recognised as an exercise of self restraint by the Court itself and nothing more. In fact as is evident upon a holistic reading of Harendra Singh, it is apparent that it was not the intent of the learned Judge to lay down the rule of restraint and abstention as an absolute proposition. This is also the position which clearly emerges when one bears in mind the following observations entered by the Full Bench in Onkar Nath Agrawal:- 8. It may, however, be mentioned that inasmuch as Section 438 of the Code of Criminal Procedure, 1973 gives a discretionary power to grant bail, this discretion is to be exercised a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon. 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. Such a construction would perhaps run the risk of being again viewed as being in conflict of the statutory mandate and the discretion conferred. In the considered view of the Court what the learned Judge did seek to convey and hold in Harendra Singh was the requirement of establishing the existence of special, weighty, compelling reasons and circumstances justifying the invocation of the jurisdiction of this Court even though a wholesome avenue of redress was available before the Court of Sessions. Regard must be had to the fact that the Constitution Bench in Sibbia had an occasion to deal with the correctness of the restrictions as formulated by the Full Bench of the Punjab and Haryana High Court on the exercise of power under Section 438 Cr.P.C. Dealing with that aspect the Constitution Bench clearly held that the exercise of discretion as statutorily conferred cannot be confined in a straitjacket. This simply since it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn, L. C. said in Hyman v. Rose : I desire in the first instance to point out that the discretion given by the section is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the courts by law. ........... 26. We find a great deal of substance in Mr. Tarkunde's submission 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, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished 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 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. Sibbia spoke of the imperfect awareness of the needs of new situations . It is this constraint which necessitates the Court leaving it to the wisdom of the Judge and the discretion vested in him by statute. 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) of Section 438 Cr.P.C. As is evident from a bare reading of the Explanation, an order passed under sub-section (1) is not liable to be construed as an interlocutory order for the purposes of the Code. There are only two types of orders which can possibly be passed under sub-section (1) of Section 438. Significantly, no provision similar to the Explanation as inserted insofar as the provision applies and operates in the State of U.P., finds place either in the principal Act or in any of the other State Amendments made to Section 438 Cr.P.C. In terms of the provisions made in sub section (1), the particular Court which is moved by way of an application for grant of an anticipatory bail may either reject the application outrightly or issue an interim order of protection. It is only these two specie of orders which are dealt with by the Explanation. The final order to be passed on the application for grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue 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. Of more significant import is the provision made in sub-section (7) which provides that if an application under Section 438 has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Sessions. Accordingly once the High Court has been moved under Section 438 Cr.P.C. by way of an application, the same applicant cannot then and thereafter move the Court of Sessions. However and significantly no converse restriction stands placed so as to denude the High Court of the jurisdiction to en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of an anticipatory bail should end at the time and stage when the accused is summoned by the court. It becomes relevant to note that this issue was firstly dealt by the Constitution Bench in Sibbia, where the following observations came to be entered: 42. There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of bail be passed under that section without notice to the Public Prosecutor? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the 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. Should the operation of an order passed under Section 438(1) be limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 Adri Dharan Das case that anticipatory bail is given for a limited duration to enable the accused to surrender and to obtain regular bail. The same view was reiterated in Salauddin case wherein it was, inter alia, observed that anticipatory bail should be of limited duration only and primarily on the expiry of that duration or extended duration, the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. 19. The object of Section 438 CrPC has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 CrPC cannot also be invoked to exempt the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 forever. 10. In Sibbia (supra), this Court has briefly dealt with the question of duration of anticipatory bail. It seems to us that the discussion primarily pertained to grant of anticipatory bail at the pre-FIR stage (see paragraph 43 quoted below). It appears that there are indications in Sibbia (supra) that anticipatory bail may be for a limited period. To quote paragraphs 19, 40, 42 and 43:- 19. ... While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eticulousness 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. xxx xxx xxx xxx 42. There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of bail be passed under that section without notice to the Public Prosecutor? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the 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. Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 conclusions on the questions formulated as under:- A. 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. B. Notwithstanding 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 and special circumstances must necessarily be found to exist in justification of the High Court being approached first 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 partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 avail the remedy, it must be substantively and conclusively established that there is a genuine and imminent threat of arrest. An application for grant of anticipatory bail cannot rest on vague and unsubstantiated allegations nor can the application be instituted without the disclosure of material particulars in support of the percieved threat. An application under Section 438 Cr.P.C. would also not be entitled to be entertained at the behest of one who has failed to join or cooperate with the investigation or one against whom a proclamation of being absconding has come to be made. It would be worthwhile to recollect the following pertinent observations as made by the Supreme Court in Rashmi Rekha Thatoi Vs. State of Orissa16 while expounding on the parameters of the jurisdiction conferred by that provision:- 25. In Savitri Agarwal v. State of Maha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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