Vinod Kumar vs Union Territory Of J And K
2022 Latest Caselaw 882 j&K

                                                                            Sr. No.89



         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU

                                                          Bail App No. 191/2022

Vinod Kumar                                              ...Appellant/Petitioner(s)

                 Through:- Ms. Rozina Afzal, Advocate.
                                V/s

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

                  Through:-


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

1. Bail in anticipation of arrest is being sought by the applicant/petitioner

herein on the premise that one, Tara Devi D/o Girdhari Lal R/o Padyari, Kathua

in connivance with her mother Kailasho Devi are hell-bent to tarnish the life and

reputation of the applicant by forcing him to marry the said Tara Devi as the

father of the said Tara Devi and her mother have an eye on the petitioner due to

his job in ITBP and have started series of harassment through phone calls and

having taken his signatures on various agreements and blackmailing him.

2. It is being stated in the application that the said Tara Devi and her family

members have been calling the applicant day in and day out having involved

one Pushpa Devi as well to force the applicant to marry Tara Devi.

3. It is being further stated that the applicant is not inclined to marry the said

Tara Devi and on account of the same the said Tara Devi and her family

members are threatening the applicant of registration of a case under Section

376 IPC notwithstanding the fact that a marriage agreement came to be executed

by the applicant herein in this regard under pressure with said Tara Devi

notarized on 19.03.2022.

4. It is being also stated in the application that the applicant despite being

asked to solemnize marriage with Tara Devi in Arya Samaj Mandir after

execution of marriage agreement, the said Tara Devi has gone to the Sakhi

Centre and Women Cell, Kathua and lodged a false complaint against the

applicant and one of the friends of the said Tara Devi working in the said Sakhi

Centre are threatening the applicant of registration of a case under Section 376

IPC. The applicant also states to have filed a complaint before the Chief judicial

Magistrate, Jammu under Section 156 (3) Cr. P.C. in this regard wherein the

said Court has directed the Police Station, City Chowk to hold an enquiry. The

marriage agreement entered with the said Tara Devi is also stated to have been

challenged before the Civil Court.

5. It is thus, stated in the application that on account of the aforesaid facts

and circumstances the applicant has a reasonable apprehension that he would be

arrested in false and frivolous case at the behest of the said Tara Devi.

Heard learned counsel for the applicant and perused the record.

6. Perusal of the record reveals that the applicant has directly approached

this Court under Section 437 Cr. P.C. seeking bail in anticipation of arrest

through the medium of the instant application without approaching the Court

of first instant i.e., the Court of Sessions.

7. Law is no more res integra 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."

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

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

the applicant in the instant application compelling him to institute instant

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

Courts, in the first instance.

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

dismissed as being not maintainable. However, the applicant is at liberty

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

anticipation of arrest.

(JAVED IQBAL WANI) JUDGE Jammu 31.05.2022 Renu

RENU BALA 2022.05.31 16:56 I attest to the accuracy and integrity of this document