Usan & Ors. ...... Applicants vs State Of Uttarakhand
2024 Latest Caselaw 2318 UK

Uttarakhand High Court

Usan & Ors. ...... Applicants vs State Of Uttarakhand on 4 October, 2024

Author: Vivek Bharti Sharma

Bench: Vivek Bharti Sharma

                                                      2024:UHC:7426
     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

       Anticipatory Bail Application No.969 of 2024

Usan & Ors.                                      ...... Applicants

                                Vs.

State of Uttarakhand                          ..... Respondent

Mr. Gaurav Singh, Advocate for the applicants
Mr. S.C. Dumka, A.G.A. with Ms. Rangoli Purohit, Brief holder for the
State



                                               Dated: 04.10.2024

Hon'ble Vivek Bharti Sharma, J. (Oral)

By way of present application, the applicants

are seeking anticipatory bail in FIR No.0555/2024 under

Sections 115(2), 190, 191(2), 324(2), 333, 351(3) of

Bhartiya Nyaya Sanhita, 2023, registered at P.S.

Gangnahar, District Haridwar.

2. Heard learned counsel for the parties and

perused the record.

3. Learned State Counsel would submit that

applicants/accused have an equally efficacious remedy

available to file the anticipatory bail application before the

Sessions Court but instead of approaching the Sessions

Court, the applicants/accused have directly come before

this High Court without exhausting equally efficacious

remedy available before Sessions Court.

2024:UHC:7426

4. Learned counsel for the State would further

submit that the issue regarding entertainability of

anticipatory bail application before the High Court u/s

438 of Cr.P.C. is pending consideration before the Hon'ble

Supreme Court in Criminal Appeal No.1562/2017

"Gauhati High Court Bar Association v. The State of

Assam & Ors." wherein the issue raised before the

Hon'ble Supreme Court is that "Whether the High Court

exercising jurisdiction under Section 438 of the Code of

Criminal Procedure, 1973 has discretion not to entertain

such an application on the ground that the applicant must

first apply to the Court of Sessions."

5. Per contra, learned counsel for the

applicants/accused would submit that the High Court and

the Court of Sessions have concurrent jurisdiction under

Section 438 of Cr.P.C. and the applicants/accused cannot

be compelled to apply for anticipatory bail before the court

of Sessions before approaching this High Court.

6. No doubt the High Court and the Sessions Court

have concurrent jurisdiction u/s 438 Cr.P.C. This is also

abundantly clear from the language of Section 438 of

Cr.P.C. which says that any person who has reasons to

believe that, he may be arrested on accusation of having

committed a non-bailable offence, he may apply to High

2024:UHC:7426 Court or the Court of Sessions for a direction under this

Section, that in event of arrest he shall be released on bail.

This means that High Court and Court of Session have

concurrent jurisdiction to grant anticipatory bail for an

offence. Hence, an application for grant of anticipatory bail

directly in the High Court without first approaching

Sessions Court is certainly maintainable. However, in

considered view of this Court, the High Court hearing the

application for anticipatory bail directly filed before it,

always has discretion to entertain it or not or to direct the

applicant to first move the Court of Sessions for

anticipatory bail.

7. This Court cannot be oblivious of the fact that

there is equally efficacious remedy available with the

applicants/accused to file application seeking anticipatory

bail before the Sessions Court at the first instance. If the

anticipatory bail applications are entertained in each and

every case in the High Court, without exhausting the

remedy before the court of Sessions, it would result into

flooding the High Court with cases for the relief which

could have been granted by the Sessions Court and this

Court will not be benefitted by the observations made by

the Sessions Judge in the orders of rejections of the

anticipatory bail application.

2024:UHC:7426

8. In view of the above, accused can certainly make

an application for anticipatory bail before the High Court

without first approaching the Court of Session but it is

always open to the High Court, in such cases, either to

exercise its discretion not to entertain such application for

grant of anticipatory bail as equally efficacious remedy is

available to the accused for anticipatory bail before the

Court of Session or to entertain it considering the special

facts and circumstances of that case.

9. In similar nature of case in "Ankit Bharti vs.

State of U.P. and another and connected matters

Criminal Misc. Anticipatory Bail Application No.1094

of 2020", Five Judges Full Bench of Hon'ble Allahabad High

court has pondered upon this issue and observed as under:-

"21. The special circumstances the existence of

which have been held to be a sine qua non to the

entertainment of an application for anticipatory bail

directly by the High Court must be left for the

consideration of the Hon'ble Judge before whom the

petition is placed and a decision thereon taken

bearing in mind the facts and circumstances of that

particular cause. However special circumstances

must necessarily exist and be established as such

before the jurisdiction of the High Court is invoked.

The application must rest on a strong foundation in

2024:UHC:7426 respect of both the apprehension of arrest as well as

in justification of the concurrent jurisdiction of the

High Court being invoked directly..."

10. Hon'ble High Court of Andhra Pradesh at

Hyderabad in "Y. Chendrasekhara Rao and others v.

Y.V. Kamala Kumari and others, 1993 SCC Online AP

243" has held as under:-

"35.... It is not obligatory under Section 438 to move

the Court of Session in the first instance. It is always

open to this Court when an application is filed under

Section 438, without first moving the Court of

Sessions, to consider all the circumstances, and if

situation warrants, this Court can direct the party to

move the Court of Session."

11. Hon'ble Karnataka High Court in "Smt. Savitri

Samson vs. State of Karnataka, ILR 2001 KAR 4080"

has observed as under:-

"...although the High Court has concurrent

jurisdiction with Sessions Court to grant bail, it is

desirable that ordinary practice should be that the

lower court should be first moved in the matter,

though in exceptional case and special

circumstances, the High Court may entertain and

2024:UHC:7426 decide an application for bail either under Section

438 or Section 439 Cr.P.C."

12. Hon'ble High Court of Bombay in "Mohanlal vs.

State of Maharashtra, Crl Appln. No.84 of 2007,

decided on 27.04.2007" has also observed as under:-

"....Though an application for anticipatory bail filed

directly to the High Court is maintainable, the High

Court should ordinarily not entertaining such

application unless exceptional reasons are made

out..."

13. In the present case, applicants/accused are

resident of Haridwar. The F.I.R. is also registered at Police

Station, Gangnahar, District Haridwar. Learned counsel

for the applicants/accused could not spell out the

exceptional circumstances to make it a special case for the

High Court to entertain this application for anticipatory

bail without first exhausting equally efficacious remedy

available to him in his home district itself.

14. At the later stage, learned counsel for the

applicants/accused would feebly argue this case is

punishable with sentence upto seven years and, in these

type of cases, anticipatory bail application being filed

before the Sessions Court does not get due consideration

2024:UHC:7426 and learned Sessions Court are hesitant to entertain the

same and grant relief on the believe that the Investigating

Officer is duty bound as per the judgment of Hon'ble

Supreme Court in re "Arnesh Kumar vs. State of Bihar and

another in (2014) 8 Supreme Court Cases 273".

15. In the opinion of this Court, this submission of

learned counsel for the applicant/accused that

anticipatory bail application filed before the Sessions

Court does not get due consideration and that the

Sessions Court are hesitant to grant relief, cannot be a

ground to file every anticipatory bail in the High Court

directly when the application for anticipatory bail can also

be moved before the Sessions Court. The remedy of filing

the anticipatory bail application is available in every

cognizable and non-bailable offence.

16. It is common knowledge that the provision of

anticipatory bail was not available in the State of

Uttarakhand and prior to the creation of the State of

Uttarakhand said provision of anticipatory bail was also

not available in the State of U.P. of which the State of

Uttarakhand was previously part of. In absence of

provision of anticipatory bail i.e. Section 438 of Cr.P.C. in

the State of U.P. previously and State of Uttarakhand, the

only remedy available to the accused was to approach the

2024:UHC:7426 High Court u/s 482 of Cr.P.C. but as the provision of

Section 438 Cr.P.C. has been made applicable in the State

of Uttarakhand vide Notification

No.205/XXXVI(3)/2020/82(1)/2019 dated August 11,

2020 the Sessions Court also has concurrent jurisdiction

and the anticipatory bail application can be moved before

Sessions Court also.

17. As the provision of anticipatory bail application

has been introduced recently in the State of Uttarakhand

and such application was not being moved before the

Sessions Court prior to the introduction of the same,

therefore, there may be some psychological barrier for the

Sessions Court while entertaining the application for

anticipatory bail but system of justice has to obviate such

psychological barrier. If every anticipatory bail application

is entertained in the High Court directly without first

approaching the Sessions Court then the opportunity for

the Sessions Court to rise to the occasion and grow would

never see the light of the day.

18. It is also of common knowledge that State of

Uttarakhand is a mountainous State with poor

connectivity by roads and, therefore, it would not be

possible for every person to approach the High Court, at

Nainital directly for anticipatory bail. Therefore, unabated

2024:UHC:7426 entertaining the anticipatory bail application directly by

this Court would make denial of opportunity of justice to

such litigants who cannot approach the High Court

directly.

19. Therefore, this Court is of the view that

although the High Court and the Sessions Court have the

concurrent jurisdiction to entertain the anticipatory bail

application but it should not be the situation in each and

every case that anticipatory bail application without any

special and exceptional circumstances should be

entertained directly by the High Court without first

approaching the Sessions Court. This goes without saying

that when the application for anticipatory bail is first

moved before the Sessions Court there can only be two

situations, either it would be granted or rejected. If the

anticipatory bail is granted, it would certainly save the

time, money and energy of the accused to get the desired

relief. However, if it is rejected by the Sessions Court then

the order of rejection passed by the Sessions Court would

throw light on the case and the High Court would be

benefitted by the observations made by the Sessions Court

in the rejection order.

20. At this stage, learned counsel for the

applicants/accused seeks permission to withdraw the

2024:UHC:7426 anticipatory bail application with liberty to file the same

before the concerned Sessions Court.

21. In view of the above, present anticipatory bail

application is dismissed as withdrawn with liberty as

above.

(Vivek Bharti Sharma, J.) 04.10.2024 Rajni

RAJINI GUSAIN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=97cfa6e4cbd49c07b8

GUSAI 76db48448ac3701a9ae475a25 47e4b7f1d9b1f17d01342, postalCode=263001, st=UTTARAKHAND, serialNumber=8D039BC77BD1

N A2222B4DF4FC80D4557562F9 5BEBA013F530616A158A0A87 8BD8, cn=RAJINI GUSAIN Date: 2024.10.04 16:15:00 +05'30'