Ashish Shah vs The State Of Chhattisgarh
2022 Latest Caselaw 1131 Chatt

                                                                         NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                          M.Cr.C.A No.297 of 2022
Ashish Shah S/o Surendra Shah, Aged About 36 Years R/o. C-1301, Rizvi Oak,
Raheja Complex, Malad (East), Near Times Of India, Mumbai (Maharashtra)
400097, District : Mumbai, Maharashtra
                                                                  ---Applicant
                                    Versus
The State Of Chhattisgarh Through The Station House Officer, Police Station City
Kotwali, Raipur, District Raipur, District : Raipur, Chhattisgarh
                                                              ---Non-Applicant


For Applicant             :     Ms. Fauzia Mirza, Sr. Advocate along with
                                Mr. Rahim Ubwani, Advocate
For Non-Applicant/State :       Mr. Alok Nigam, G.A.
For Objector            :       Mr. Prafull N. Bharat, Sr. Advocate along
                                with Mr. Harshwardhan Parganiha,
                                Advocate


                Hon'ble Shri Justice Deepak Kumar Tiwari
                               Order on Board
03.03.2022
1.

The applicant has filed this application under Section 438 of the

Cr.P.C as he is apprehending his arrest in connection with Crime

No.258/2021 registered at Police Station - City Kotwali, Raipur,

Chhattisgarh for the offence punishable under Sections 409 and 420 of IPC

in which an application for grant of ad interim bail has also been filed.

2. Counsel has earlier filed an application under Section 438 Cr.P.C.

before the 11th Additional Sessions Judge, Raipur as on that date the case

diary was not available and it was informed to the Court that case diary

was sent for hearing on application of the co-accused persons which is

listed on 24.02.2022 so in view of that counsel for the applicant did not

press the bail application and the said application was dismissed as

withdrawn.

3. Counsel for the Objector raised a preliminary issue about the

maintainability of the bail application and has drawn attention of this Court

as the dictum as laid down by the Division Bench in the matter of Hareram

Sharma Vs. State of Chhattisgarh, through Superintendent of Police 2021

1 CGLJ (SN 15) 47 in such judgments in Paras 16 to 18 it was already held

that :-

''16. Thus, the catena of judgments referred to above would follow the common thread that albeit Section 438 of the Cr.P.C. confers concurrent jurisdiction on the High Court and the Sessions Court, an application should ordinarily be filed before the Sessions Court at the first instance and not directly before the High Court. For filing a application directly before the High Court the applicant has to demonstrate and satisfy the High Court that there exists exceptional, rare or unusual reasons for the applicant to approach the High Court directly.

17. Merely for the reason that the accused has a good case on merits cannot be a ground for moving the bail application directly before the High Court for the reason that if the accused has a good case on merits and there is no material available with the police to implicate the accused, there is no reason why the learned Sessions Judge would not be in a position to appreciate the facts and circumstances of the case and apply his judicial mind.

18. We have not dealt with the merits of the present bail applications as we have found that there are no exceptional circumstances in the cases at hand which would entitle them to move the anticipatory bail applications directly before the High Court. Any observation on merits may effect the applicants' case before the Sessions Court, therefore, while dismissing these two bail applications filed directly before the High Court as not maintainable as they have not been able to demonstrate any exceptional circumstances, we reserve liberty in favour of the applicants to approach the Sessions Court and thereafter to revive the prayer before the High Court if need arises.''

4. Counsel for the objector submits that the Sessions Judge has not

applied his mind and has not appreciated the grounds and evidence.

Therefore, the bail application under Section 438 of the Cr.P.C. has not

been adjudicated according to law that power is vested with the Sessions

Judge and as per Judicial discipline an application has to be appreciated

firstly before the Sessions Judge so that he may apply his judicial mind and pass a well reasoned order.

5. Learned counsel for the petitioner submits that as the case diary was

not available with the Sessions Court and diary was sent for hearing on

another case by the High Court in that particular circumstances this

application may be entertained. She further submits that in the aforesaid

matter Hareram Sharma (Supra) the petitioner has filed the application

directly before the High Court. Therefore, in such peculiar circumstances

such observation was quoted in paras 16 to 18 of the aforesaid judgment.

In that case the petitioner has earlier filed an application before the

Sessions Judge so the preposition laid down in that case has not at all

attracted in the present matter, so prays to hear the bail application on

merits and the application is not being rejected on such score.

6. Learned counsel for the State also submits that at the first instance

the application must be adjudicated on merits by the Sessions Judge and

then only it can be said that the order has been passed.

7. Having considering the submission of learned counsel for both the

parties and as per the Code of Criminal Procedure, 1973, Section 438

confers concurrent jurisdiction on the High Court and the Session Court so

it is always desirable that an order has to be passed on merits even only it

can be said that application has been decided in proper prospective for that

purpose the legislature in its wisdom confers the power to the Sessions

Court as the jurisdiction of the Sessions Court and the High Court are at

par to that extent so maintaining the judicial discipline this Court is of the

considered view that the application firstly decided on merits and the

withdrawal of the application cannot be said to be such withdrawal which fulfilled the said purpose, so, I am constraint to accept the arguments

advanced by the counsel for the applicant and reserving the liberty to file

appropriate application before the Sessions Court and thereafter if need

arises she may revive the same before the High Court also and if any such

application is preferred by the applicant before the Sessions Court the

Session Judge is expected to decide the same as early as possible.

Learned State counsel is also directed to place the case diary before the

Sessions Court on the date of hearing of the bail application, positively.

8. Accordingly, the bail application filed under Section 438 of the

Cr.P.C. is dismissed as not maintainable.

9. CC today.

Sd/-

(Deepak Kumar Tiwari) Judge yasmin