Abas Hussain Shah vs
2021 Latest Caselaw 466 j&K

                                                                   S. No.107
                HIGH COURT OF JAMMU AND KASHMIR
                              AT JAMMU


                                                Bail App No. 37/2021
                                                (Through Video Conferencing)


     Abas Hussain Shah                                            ...Petitioner(s)

                    Through :- Mr. K. K. Pathan, Advocate

                   v/s
                     <




't
     Union Territory of J&K                                   .....Respondent(s)

                    Through :- Mr. Adarsh Bhagat, GA


Coram:          HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                       ORDER

1. Through the medium of this instant petition, the applicant-petitioner

is seeking bail in anticipation of his arrest in FIR No. 03 of 2021 for offences

under Sections 67 & 67A of IT Act and 500 & 509 of IPC of Police Station,

Gursai, Tehsil, Mendhar, District, Poonch.

2. I have heard the learned counsel for the petitioner and perused the

record. A perusal of the record shows that the petitioner has not approached the

learned Sessions Judge, Poonch before approaching this Court for seeking bail in

anticipation of his arrest.

3. Learned counsel for the petitioner was asked as to whether the

petitioner prior to approaching this Court had applied for grant of anticipatory

bail before the learned Sessions Judge, Poonch, to which he fairly conceded that

the petitioner did not do so.

4. In Harendra Singh v. State of U.P., 2019 SCC Online All 4571, it

was held that the bail application filed under Section 438 of Cr. P.C. is not

maintainable before the High court without exhausting remedy before the

sessions Court.

5. Again in Vinod Kumar v. State of U.P., 2019 SCC OnLine All

4821, it was held that such application can be filed directly before the High Court

with a rider that strong, cogent, compelling reasons and special circumstances are

found to exist in justification of the High Court being approached first and

without exhausting the remedy available before the Sessions Court.

6. The Bombay High Court in Mohanlal Nandram Choudhari v. State

of Maharahstra, 2007 (4) MhLJ 9, held that choice of choosing the Court

whether Sessions Court or High Court for moving an application under Section

438 Cr.P.C. cannot be left to be decided by the accused.

7. The High Court of Chattisgarh, in the case of Hare Ram Sharma v.

State of Chhattisgarh, 2020 SCC OnLine Chh 639, has reiterated and

reaffirmed the aforesaid position of the law.

8. Thus, there are catena of judgments on the issue. The common

thread that runs through all these judgments is that Section 438 Cr.P.C. though

confers concurrent jurisdiction on the High Court and the Sessions Court to grant

bail in anticipation of arrest, yet an application should ordinarily be filed before

the Sessions Court at the first instance and not directly before the High Court.

For filing an application directly before the High Court, the applicant has to

demonstrate and satisfy the High Court that there exist exceptional rare or

unusual reasons for the applicant to approach the High Court directly.

9. Coming to the facts of the instant case, the petitioner has no where

pleaded as to under what circumstances he has approached this Court directly

under section 438 Cr.P.C., without exhausting the remedy before the learned

Sessions Judge, Poonch. The petitioner happens to be a resident of District

Poonch which is a place far off from Jammu. Thus, even on the grounds of

convenience of the petitioner, it was far more convenient for him to approach

Sessions Court at Poonch than approaching this Court directly.

10. For the foregoing reasons, the application is dismissed for being not

maintainable directly before the High Court. However, a direction is given to the

learned Principal Sessions Judge, Poonch to decide the anticipatory bail

application of the petitioner at the earliest as and when such an application is

moved before the said Court.

(SANJAY DHAR) JUDGE JAMMU 12.04.2021 Paramjeet Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No