TMI Blog2016 (7) TMI 1609X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court though there is no embargo under the statute itself, but the Court can do so on the basis of various factors. 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. It is also worth to note here that the Sessions Court and the High Court are concurrently empowered to grant bail u/s.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Before adverting to the factual matrix of this case and to ascertain as to whether the petitioners are entitled for grant of anticipatory bail or not; a serious legal question has been raised before this Court by the learned High Court Government Pleader that the petitioners without exhausting the remedy u/s.438 of Cr.P.C. before the jurisdiction Sessions Court, has directly approached this Court. Therefore, the petition is not maintainable and the petitioners have to be relegated to the Court of Sessions first and then they can approach this Court. In this background, the legal question that arises for consideration of this Court is that - Whether the Petition filed u/s.438 of Cr.P.C. is maintainable before the High Court without exhausting remedy under the said provision before the Court of Sessions which has concurrent jurisdiction with that of the High Court? Section 438 of Cr.P.C. reads as follows: 438. Direction for grant of bail to person apprehending arrest - (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 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. 8. In this background, now let me consider the various rulings relied upon by the parties. 9. The learned counsel for the petitioners relied upon a decision reported in ILR 2002 KAR 3308 between N.B. BUNGARAKOPPA VS. STATE OF KARNATAKA, wherein this Court has observed while disagreeing with the learned Single Judge's judgment to the effect that the powers u/s.438 of Cr.P.C. has to be restricted to High Court particularly under certain circumstances. Disagreeing with the observation made by the learned Single Judge, the Division Bench has opined that in cases of anticipatory bail, the relief has to be speedily obtained which means with the closest judicial authority namely the Court of Sessions, which is accessible and this would not be the case if the applicants are restricted to the High Court. The real remedy would be to ensure that when such a petition is filed before the Court of Sessions, the Court is put on caution and that the Court applies its mind very carefully and judiciously realizing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by S. 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: S. 437 which deals with the power of Courts other than the Court of Sessions and the High Court of grant bail in non-bailable cases and S. 439 which deals with the special powers of the High Court and the Court and the Court of Sessions regarding bail. The whole of Section regarding bail. The wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is no bar for High Court to entertain such Revision Petition. Further held that on facts, High Court erred in criticizing CBI. These rulings also in a straight jacket manner not applicable to the case on hand. The Hon'ble Apex Court mainly concentrated on the criticism made by the High Court on C.B.I but not dealt with the concurrent Jurisdiction, and no law as such has been laid down. 10. Though the Hon'ble Apex Court has made certain observations with regard to the jurisdiction of the High Court but the very question that has been raised before this Court has not been specifically answered. Though in categorical term, the Supreme Court has said that the jurisdiction of the High Court and Sessions Court u/s.438 of Cr.P.C. are concurrent in nature and it is the special powers given to the High Court and the Court of Sessions for grant of anticipatory bail and there can't be any restrictions on the discretion of the Court which are not engrafted in the section. 11. Now, coming to the rulings relied upon by the State. The learned High Court Government Pleader has also relied upon various decisions in this regard. 12. It is worth to mention here the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if his application had been rejected by the Court of Sessions and not vice versa. 13. By looking into the above said decisions of this Court, including the Division Bench of this Court have consistently of the opinion that the party has to approach the Sessions Court first and then he has to approach the High Court which is the normal course. But the courts have also observed that in extraordinary circumstances with special reasons, the party can also approach the 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 petition. 14. In a ruling of the Gauhati High Court in BA No.3024/2014 between Sri Kwmta Gwra Brahma Vs. State of Assam, the Division Bench has also expressed similar view and held that the party has to approach the Court of Sessions first u/s.438 of Cr.P.C. and he can later approach the High Court. 15. As could be seen from the various decisions cited by the learned High Court Government Pleader of different High Courts, they have also taken the similar view that the parties have to approach the Sessions Court first and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the advantage of considering the opinion of the Sessions Court. More over, 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. 20. It is also to be notable that the Sessions Court will always be nearest and accessible Court to the parties. More over, considering the work load of the courts in the country, the superior courts particularly, the High Courts are flooded with heavy pendency of cases. In order to facilitate the other parties who come before the Court with other cases before the High Court (which has got exclusive Jurisdiction) and also in order to provide alternative remedy to the parties, it is just and necessary that the party shall first approach the Sessions Court u/s.438 of Cr.P.C. so that the High Court can bestow its precious time to deal with other pending cases which requires serious attention and expeditious disposal, where the parties who have com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticularly, the consistent view taken up by this Court, I do not find any strong reason to deviate from the said view taken by this Court earlier. Hence, I am of the opinion, the point formulated by me noted above has to be answered accordingly. 25. Hence, I answer the point raised as follows: The bail petition filed u/s.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. 26. Having held in such manner, now let me see whether the petitioner has approached this Court with any such extraneous or special reason. 27. Now, coming to the factual matrix of this case, it is the case of the prosecution, as could be seen from the charge sheet papers, a lady by name Smt. Vijaya Lakshmi lodged a complaint that she was married to one Venkateshwara Rao and they were residing together at 4th cross, Gandhipuram, Whitefield, Bengaluru City. They were blessed with two children. A1 - Ravichandra was often visiting the house of the complainant and he used ..... X X X X Extracts X X X X X X X X Extracts X X X X
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