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2015 (4) TMI 1303 - HC - Indian LawsGrant of anticipatory bail - Maintainability of application before High Court - Whether it is essential that a person/accused before approaching the High Court for grant of anticipatory bail u/s 438 of the CrPC and grant of bail u/s 439 of the CrPC should exhaust his remedies before the Sessions Court and then file application before the High Court? HELD THAT - There is great deal of increase in the number of filing of bail application directly before this Court and it is consuming a large chunk of the judicial time for disposal of bail applications. Almost 2-3 benches are regularly constituted to deal with the bail applications. There is huge pendency of criminal appeal before the Division Bench and criminal appeal criminal revision and criminal petition(482 of the CrPC) before the Single Judge besides there is huge pendency of civil appeals. Not usually this High Court has always functioned with full sanctioned strength. There are currently three outlying benches where Judges have to be deputed to deal with the work at the outlying benches - It is therefore necessary that normally a person/accused should file an anticipatory bail application u/s 438 of the CrPC or a bail application u/s 439 of the CrPC before the Sessions Court and thereafter he can approach the High Court. However this is not an inviolable rule. In exceptional circumstances a person/accused can directly approach the High Court. The following are the circumstances under which a person/accused can directly approach the High Court. However circumstances are illustrative and not exhaustive. There could be other exceptional circumstances which would always depend upon the facts and circumstances of each case (i) When a person/accused from other State has to move an application for grant of anticipatory bail u/s 438 of the CrPC if it is convenient for him to move such application before the High Court directly which is nearer from the point of distance in such a case the application filed before the High Court need not be rejected on the ground that he can approach the Sessions Court unless the Sessions Court is also located in the same place. (ii) Whenever in a Sessions jurisdiction a particular incident or crime has attracted a lot of public and media attention with an adverse public opinion having been built up against the person/accused in such cases the 438-CrPC-applications and 439-CrPC-applications can be filed directly before the High Court. (iii) When the Sessions Court has already rejected an application for grant of bail u/s 438/439 of the CrPC where one of the persons/accused is similarly placed it is not necessary that the similarly- placed person/accused should approach the Sessions Court for grant of bail he can file an application before the High Court u/s 438/439 of the CrPC. Thus in brief normally a person/accused should exhaust his remedy u/s 438 or 439 of the CrPC before the Sessions Judge before making an application before the High Court u/s 438 or 439 of the CrPC. However in exceptional illustrated circumstances a person/ accused can approach the High Court without exhausting his remedy before the Sessions Judge. Grant of Bail - offence u/s 387 507 read with section 34 of the IPC - HELD THAT - It appears that grave allegations are made in the complaint. The petitioner has filed an application without exhausting his remedy of filing an application before the Sessions Court. For the reasons stated above it is just and necessary that the petitioner should exhaust his remedy before the Sessions Judge and thereafter approach the High Court. Accordingly the petition is disposed of - The fee of the amicus curiae is fixed at 7000/- each which will be paid to them by the State. Petition disposed off.
Issues Involved:
1. Whether it is essential for an accused to exhaust remedies before the Sessions Court before approaching the High Court for anticipatory bail under Section 438 CrPC and bail under Section 439 CrPC. Detailed Analysis: 1. Concurrent Jurisdiction and Exhaustion of Remedies: The primary issue addressed is whether an accused must first exhaust remedies before the Sessions Court prior to approaching the High Court for anticipatory bail under Section 438 CrPC and bail under Section 439 CrPC. The provisions of Sections 438 and 439 CrPC were discussed, highlighting that both the High Court and Sessions Court have concurrent jurisdiction to grant bail. However, the practice observed is that many applications are filed directly before the High Court without first approaching the Sessions Court. 2. Judicial Precedents and Interpretations: The judgment reviews various decisions from different High Courts: - Madhya Pradesh High Court (Abdul Karim Khan v. State of Madhya Pradesh), Rajasthan High Court (Hajialisher v. State of Rajasthan), Punjab and Haryana High Court (Chhajju Ram Godara v. State of Haryana), Bombay High Court (Jagannath v. State of Maharashtra), Karnataka High Court (K.C. Iyya v. State of Karnataka), Gujarat High Court (Rameshchandra Kashiram Vora v. State of Gujarat), Kerala High Court (Mathew Zacharish v. State of Kerala), and Kerala High Court (Usman v. The Sub-Inspector of Police) have held that the accused should first exhaust remedies before the Sessions Court. - Allahabad High Court (Onkar Nath Asrawal v. State) and Himachal Pradesh High Court (Mohan Lal v. Prem Chand) have observed that it is not mandatory to approach the Sessions Court first. - Calcutta High Court (Diptendu Nayek v. State of West Bengal) and Andhra Pradesh High Court (Y Chendrasekhara Rao v. Y.V. Kamala Kumari) also support the view that approaching the High Court directly is permissible under certain circumstances. - Kerala High Court (Balan v. State of Kerala) emphasized that the right to choose the forum lies with the accused and should not be curtailed by self-imposed restraints. 3. Reasons for Exhausting Remedies Before Sessions Court: The reasons for requiring the accused to approach the Sessions Court first include: - The superior court benefits from the opinion of the inferior court. - The inferior court is usually more accessible. - Reducing the burden on the High Court, which handles a significant number of cases requiring serious judicial attention. - The Sessions Court can effectively handle preliminary scrutiny of investigation materials. 4. Exceptional Circumstances: The judgment acknowledges that while it is generally necessary to approach the Sessions Court first, there are exceptional circumstances where an accused can directly approach the High Court: - When the accused is from another state and it is more convenient to move the High Court. - When a case has attracted significant public and media attention with adverse public opinion. - When the Sessions Court has already rejected a similar bail application for a co-accused. 5. Conclusion and Specific Case Decision: The court concludes that normally an accused should exhaust remedies before the Sessions Court before approaching the High Court. However, in exceptional circumstances, direct application to the High Court is permissible. In the specific case at hand, the petitioner, accused of offenses under Sections 387, 507 read with Section 34 IPC, had not exhausted remedies before the Sessions Court. Therefore, the petition was disposed of, directing the petitioner to approach the Sessions Court first. 6. Administrative Directions: The registry was directed to communicate this order to the Sessions Judges and Magistrates in the State to ensure compliance with the established procedure. The fee for the amicus curiae was fixed at Rs. 7000 each, to be paid by the State.
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