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2016 (7) TMI 1609 - HC - Money LaunderingGrant of anticipatory bail - maintainability of appeal before High Court without exhausting the remedy u/s.438 of Cr.P.C. before the jurisdiction Sessions Court - HELD THAT - The intention of bringing out Section 438 Cr.P.C. is enabling each and every person in the country if under extraordinary circumstances under exigencies either to approach the Court of Sessions or the High Court which can be concurrently exercised by both the courts. Though such remedy, cannot be riddled down by imposing any extraordinary condition but still the Court can refuse to entertain the bail petition and direct the party to approach the Court of Sessions first because Section 438 of Cr.P.C. shall not be exercised as a matter of right by the party, though it can be invoked either before the Sessions Court or before the High Court. It is purely the discretionary power of the Court to exercise power depending upon the facts and circumstances of each case. Therefore, the High Court can direct the party to go first before the Court of Sessions and then come to the High Court though there is no embargo under the statute itself, but the Court can do so on the basis of various factors. The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going through the entire materials on record. In that context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case, with expedition. It is also worth to note here that the Sessions Court and the High Court are concurrently empowered to grant bail u/s.438 of Cr.P.C. The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviated the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far as the Sessions Courts are concerned. Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said provision. The bail petition filed u/s.438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision. Whether the petitioner has approached this Court with any such extraneous or special reason? - HELD THAT - The conduct of A1 and the petitioner have to be tested during the course of full dressed trial. The only allegation against the petitioners herein who are A2 and A3 is that, they have threatened her with dire consequences of killing her if she enquire anything about A1 and that A1 to A3 have hatched conspiracy to do away with her life. These factual aspects have to be established during the course of full dressed trial. A1 has already been released on Bail, vide order dated 07.06.2016 - main allegation against A1 is that he has made attempts to kill her etc., But no such allegations are made against accused Nos.2 3 are concerned. Under the above said circumstances, there are no strong reasons to reject the bail petition to the present petitioners. In view of the same, the petitioners are entitled to be enlarged on bail on certain conditions. The petitioners are entitled to be enlarged on bail - Petition allowed.
Issues Involved:
1. Maintainability of the petition under Section 438 of Cr.P.C. before the High Court without approaching the Sessions Court first. 2. Entitlement of the petitioners to anticipatory bail based on the factual matrix of the case. Issue-Wise Detailed Analysis: 1. Maintainability of the Petition under Section 438 of Cr.P.C.: The primary legal question addressed was whether a petition under Section 438 of Cr.P.C. is maintainable before the High Court without first exhausting the remedy before the Court of Sessions, which holds concurrent jurisdiction. The court noted that Section 438 of Cr.P.C. confers concurrent jurisdiction on both the High Court and the Court of Sessions to grant anticipatory bail. The provision does not impose any condition that the applicant must approach the Sessions Court first. The court emphasized that the discretion to grant anticipatory bail is vested in both courts without any statutory restriction. However, the respondent argued that as a matter of practice, applicants should approach the Sessions Court first and establish extraordinary circumstances if they directly approach the High Court. Several rulings were cited to support this view, including decisions from the Karnataka High Court and other High Courts, which generally held that the Sessions Court should be approached first unless special reasons justify direct approach to the High Court. The court examined various precedents, including the landmark Supreme Court decision in Gurubaksh Singh Sibbia vs. State of Punjab, which highlighted the broad and unqualified terms of Section 438 and the discretion conferred upon superior courts. The court also reviewed other rulings that supported the view that the High Court can entertain a petition under Section 438 without the applicant first approaching the Sessions Court. Ultimately, the court concluded that while there is no statutory requirement to approach the Sessions Court first, it is generally advisable to do so. The High Court can exercise its discretion to entertain such petitions directly in special or extraordinary circumstances. 2. Entitlement to Anticipatory Bail: The factual matrix involved allegations against the petitioners (A2 and A3) in connection with a crime involving sections 506, 120-B, 420, 376, and 307 of IPC. The petitioners were accused of threatening the complainant and conspiring to harm her. A1 had already been released on bail. The court examined the allegations and noted that the main allegations of attempts to kill were against A1, not the petitioners. The petitioners were primarily accused of threatening the complainant. The court found that these allegations need to be tested during the trial. Considering that A1 had already been granted bail and the petitioners' involvement was limited to threats, the court found no strong reasons to reject their bail application. Additionally, the court considered the financial and time burdens on the petitioners if relegated to the Sessions Court. The court allowed the petition for anticipatory bail, subject to conditions, including the petitioners surrendering before the Investigating Officer or jurisdictional Court, executing a personal bond, not tampering with witnesses, appearing before the Investigating Officer when required, and attending court hearings regularly. Conclusion: The High Court held that while a petition under Section 438 of Cr.P.C. is maintainable before the High Court without first approaching the Sessions Court, it is generally advisable to approach the Sessions Court first unless special reasons justify otherwise. The petitioners were granted anticipatory bail based on the specific facts of the case and the conditions imposed by the court.
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