Mohd. Iqbal And Others vs Union Territory Of J&K And Another
2021 Latest Caselaw 1192 j&K

                                                                    Serial No. 03



      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                             Bail App No. 295/2021

Mohd. Iqbal and others                           ...Applicant(s)/Petitioner(s)

                     Through:- Mr. I.H. Bhat, Advocate
                         v/s

Union Territory of J&K and another                          ...Respondent(s)

                     Through:- None

Coram:      HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                     ORDER

1. Bail in anticipation of arrest is being sought by the applicants

herein in FIR No. 257/2021 dated 13.09.2021 for offences under Sections

376/511/354/323/451/34 IPC registered at Police Station Domana, Jammu.

2. The case set up by the applicants in the instant application is that

they are law abiding citizens and have been implicated in a false and

frivolous case registered under FIR No. 257/2021 after a complaint came to

be filed by applicants Nos. 1 and 3 against respondent No. 2 herein and one

Bashir Ahmed and that in response to the said complaint, the respondent No.

2 got the FIR in question registered on the basis of a false and frivolous

complaint and that the applicants have not committed any offence and that

the facts narrated in the FIR do not disclose the commission of any offence

and that the applicants Nos. 3 and 4 are students and applicant No. 2 is an

innocent lady and that on account of the FIR in question, the applicants have

strong reason to believe that they would be arrested by the police in

connection with the FIR in question and in the event of their arrest, they

shall suffer an irreparable injury.

Heard learned counsel for the applicants and perused the

record.

3. Learned counsel for the applicants upon being asked as to why the

applicants have instituted the instant application before this Court instead of

the court of Sessions Judge, Jammu, the counsel for the applicants fairly

conceded that the applicants chose to file the same before this Court.

4. Law is no more re-intgra and there is a long line of decisions of

various High Courts that before filing a bail application before the High

Court, remedy before the Sessions Court shall be exhausted unless there are

strong, cogent and compelling reasons spelt out. A similar view has been

taken by this Court in case titled as "Abas Hussain Shah vs. Union

Territory of J&K" (Bail App. No. 37/2021), wherein following has been

observed :-

"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."

5. Perusal of the instant application would reveal that no such

exceptional, rare or compelling reasons have been detailed or spelt out by

the applicants in the instant application compelling them to institute instant

application before this Court directly instead of filing same in the Sessions

courts at Jammu, in the first instance.

6. Having regard to the aforesaid position, the instant application is

dismissed as being not maintainable. However, the applicants are at liberty

to approach the Sessions court at Jammu if so, advised for seeking bail in

anticipation of arrest in the FIR in question.

(JAVED IQBAL WANI) JUDGE

Jammu 27.09.2021 SUNIL-I