Allahabad High Court
Devanand Mishra vs State Of U.P.Thru.Prin.Secy. ... on 6 July, 2021
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 14
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5614 of 2021
Applicant :- Devanand Mishra
Opposite Party :- State Of U.P.Thru.Prin.Secy. Home & Anr.
Counsel for Applicant :- Ravindra Kumar Singh,Jeet Tripathi
Counsel for Opposite Party :- G.A.,Neeraj Srivastava
Hon'ble Alok Mathur,J.
1. Heard Sri Ravindra Kumar Singh, learned counsel for applicant as well as learned A.G.A. on behalf of State through video conferencing in view of COVID-19 pandemic.
2. This is an application for grant of anticipatory bail to the accused-applicant in Case Crime No. 0133/2021, U/S 147, 148, 307 & 504 I.P.C., Police Station - Atariay, District - Sitapur.
3. Learned A.G.A., at the very outset, raised a preliminary objection that a five Judges' Bench of this Court in the case of Ankit Bharti Vs. State of U.P. in Crl. Misc. Anticipatory Bail Application No.1094 of 2020 along with other matters have clearly dealt with this aspect in great detail and only in certain conditions, it is stated that the anticipatory bail would be maintainable at the first instance before the High Court andthe anticipatory bail application preferred by the applicant under Section 438 Cr.P.C., at the first instance, ordinarily should be preferred before the trial court and only then it should be filed before High Court while the applicant has approached High court directly and, therefore, the application deserves to be rejected but with liberty to the applicant to approach the competent court.
4. Learned counsel for applicant fairly submitted that his case is squarely covered with the aforesaid case inasmuch during COVID-19 pandemic he should not be compelled to approach the trial court and the anticipatory bail application should be considered directly in the High Court. This is only ground urged by him for approaching the High Court and no other ground he has been raised from which it can be presumed that the same is an exceptional ground as per the full bench judgment due to which the applicant may file an application under Section 438 Cr.P.C. directly before the High Court.
5. I have considered the arguments of the respective parties and perused the record. The only ground urged by learned counsel for parties for approaching this Court directly is that there is COVID-19 circumstances, the applicant cannot be compelled to approach the District Court and this itself constitutes exceptional ground for approaching the High Court directly. At this stage, I observe that fresh anticipatory bail applications are being duly listed and heard by the trial court and it cannot be said that trial court is not functioning in the present situation.
6. In light of the fact that, the trial courts are open and are functioning and are also taking up matters under Section 438 Cr.P.C. which cannot constitute any ground much less and exceptional ground for approaching the High Court directly under Section 438 Cr.P.C.
7. Undoubtedly, while interpreting the provisions of Section 438 Cr.P.C. the Full Bench has relied upon the earlier orders of this Court in the case of Vinod Kumar Vs. State of U.P. and another, 2019 (12) ADJ 495 and has also duly considered the recent judgment in the case of Sushila Aggarwal Vs. State of State (NCT of Delhi) and others and have held that it is only when there exists a special or extraordinary circumstance, High Court can entertain an application under Section 438 Cr.P.C. directly.
8. Accordingly, I do not find any such circumstances necessitating interference which may persuade me from concluding that there are any extraordinary or special circumstances for which an application under Section 438 Cr.P.C. can be filed directly before the High. Court.
9. Accordingly, the present anticipatory bail application is hereby rejected subject to his right to approach the trial court for seeking relief of anticipatory bail under Section 438 Cr.P.C.
(Alok Mathur, J.)
Order Date :- 6.7.2021
Ravi/
