Jammu & Kashmir High Court
Nazarat Hussain Shah And Others vs State Of J And K on 19 May, 2022
Sr. No. 158
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM (M) No. 57/2020
CrlM Nos. 121 &122/2020
CrlM No. 609/2021
CrlM No. 369/2020
CrlM No. 1967/2021
CrlM No. 1481/2021
CrlM No. 484/2020
c/w
Bail App No. 319/2021
Nazarat Hussain Shah and others ...Appellant/Petitioner(s)
Through :- Mr. A.K. Shan, Advocate.
V/s
State of J and K ...Respondent(s)
Through :- Mr. Adarsh Bhagat, GA for R-1.
Mr. Rajnish Raina, Advocate for R-2.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
CRM (M) No. 57/2020
Heard learned counsel for the parties.
Admit.
Issue post admission notice to the respondents.
Notice waived by Mr. Adarsh Bhagat, GA on behalf of respondent No. 1
and Mr. Rajnish Raina, Advocate on behalf of respondent No. 2.
Response already stands filed.
Response already filed at the pre-admission stage is adopted as response
at the post admission stage by the appearing counsels for the respondents.
List for final consideration on 14.07.2022.
Bail App No. 319/2021
1. Bail in anticipation of arrest is being sought by the applicants herein, in
FIR No. 0011/2020 dated 29.01.2020 for offences under Sections 376/313 IPC
registered at Police Station, Mendhar.
2. Heard the learned counsel for the applicants and perused the record.
3. A perusal of the record in general and the application in particular would
reveal that the instant bail application has been filed directly by the applicants
before this Court without approaching the learned Sessions Judge Poonch for
seeking bail in anticipation of their arrest.
4. This has been consistent view of the Courts as also by this Bench that
unless compelling circumstances are detailed out in the application seeking bail
from this Court directly without approaching the Court below in the first
instance, the application has not been entertained in ordinary course.
5. Perusal of the application in hand would tend to show that the applicants
have not expressed or spelt out any compelling reason in the application as to
why the applicants have approached this Court directly without availing the
remedy of filing of the application before the Court below in the first instance.
6. This Court forbears from expressing any opinion on the merits of the
case, lest it may prejudice the rights of the parties, as such, is deciding the
instant application on the solitary grounds that the application is not per se
maintainable in view of law laid down by this Court in case titled as, Mohd.
Iqbal and others Vs. Union Territory of J & K and another" (Bail App No.
295/2021), 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."
7. 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 Poonch if so, advised for seeking bail in
anticipation of arrest in the FIR in question.
8. It is made clear that the dismissal of the instant application shall not stand
in the way of the applicants in seeking appropriate remedy available under law.
(JAVED IQBAL WANI)
JUDGE
Jammu
19.05.2022
Renu
RENU BALA
2022.05.21 13:38
I attest to the accuracy and
integrity of this document
