TMI Blog2019 (7) TMI 1812X X X X Extracts X X X X X X X X Extracts X X X X ..... out examining whether there are any special reasons or special circumstances to entertain the said application - In the case of Sri Kwmta Gwra Brahma Vs. State of Assam [ 2015 (4) TMI 1303 - GAUHATI HIGH COURT] , the Gauhati High Court has also expressed similar view and held that the party has to approach the Court of Sessions first under Section 438 of Cr.P.C., and he can later approach the High Court. The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going through the entire materials on record. In that context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case, with expedition - Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said provision. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 offences; (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: The rest of the provision is not necessary for the purpose of considering the question raised. 5. The amended provisions of the Criminal Procedure Code, 1973, in its application to Uttar Pradesh is as follows: No. 1058 (2)/LXXIX-V-1-19-1(ka)-20-2018 Dated Lucknow, June 6, 2019 In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the governor is pleased to order the publication of the following English translation of the Dand Prakriya Samhita (Uttar Pradesh Sanshodhan) Adhiniyam, 2018 (Uttar Pradesh Adhiniyam Sankhya 4 of 2019) as passed by the Uttar Pradesh Legislature and assented to by the President on June 1, 2019. The Grih (Police) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Per contra, learned A.G.A., has also relied upon various rulings and submitted that though the High Court has got concurrent jurisdiction under Section 438 of Cr.P.C., but as a matter of practice, the party has to approach the Sessions Court first, for his remedy and then he can approach High Court under Section 438 of Cr.P.C., after exhausting such remedy. He further submits that if a party directly approaches the High Court, he has to establish extraordinary or special reason as to why he wants to bypass the Sessions Court. 10. In this background, now let me consider the various rulings related to the submissions made above. 11. In the case of Gurubaksh Singh Sibbia Vs. The State of Punjab; AIR 1980 SC 1632 and Sarbajit Singh and another Vs. The State of Punjab; AIR 2009 SC 2792, the Apex Court while dealing with the provisions of Section 438 of Cr.P.C., has laid down certain important aspects. The Apex Court after considering the observation of the High Court of Punjab, has laid down certain guidelines as to under what circumstances, the discretion vested under Section 438 of Cr.P.C., can be exercised. The Apex Court has observed in the following manner: 12. We fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Sessions to grant anticipatory bail, said in Para. 39.9 that it had considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted but had come to the conclusion that the question of granting such bail should be left to the discretion of the Court and ought not to be fettered by the statutory provision itself, since the discretion was being conferred upon superior courts which were expected to exercise it judicially. The legislature conferred a wide discretion on the High Court and the Court of Sessions to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the high courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. 13. In the case of CBI Vs. State of Gujarat; (2007) 6 SCC 156, the Hon'ble Apex Court while dealing with the provisions of Section 397 of Cr.P.C., which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. The High Court cannot entertain Section 438 of Cr.P.C., as a matter of routine without examining whether there are any special reasons or special circumstances to entertain the said application. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt and the High Court are concurrently empowered to grant bail under Section 438 of Cr.P.C. The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviated the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far as the Sessions Courts are concerned. Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said provision. 25. Therefore, looking to the abovesaid rulings of different High Courts, I do not find any strong reason to deviate from the said view taken by the other High Courts. Hence, I am of the opinion, the point formulated by me noted above has to be answered accordingly. 26. Hence, I answer the point raised as follows: The bail application filed under Section 438 of Cr.P.C., i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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