Chh HC | Can an application for anticipatory bail under S. 438 CrPC be filed directly before the High Court? || Thorough Analysis

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and Gautam Chourdiya, JJ., observed that,

Application for anticipatory bail under Section 438 Criminal Procedure Code, 1973 should ordinarily be filed before the Sessions Court at the first instance. Such an application can be filed directly before the High Court when there exist exceptional, rare or unusual reasons.

Two bail applications under Section 438 of the Code of Criminal Procedure, 1973 were filed by the applicants before the High Court without availing the remedy before the Sessions Court.

Applicants counsel on 16-09-2020 placed reliance on the decision of this Court in Ratnesh Singh Chouhan v. State of Chhattisgarh, MCRCA No. 918 of 2019, decided 23-07-2019, to argue that the anticipatory bail applications can be filed directly before the High Court.

A plain reading of the provision of Section 438 CrPC necessitates an immediate conclusion that the jurisdiction conferred on the High Court and the Sessions Court for entertaining prayer for anticipatory bail is concurrent in nature.

Controversy as to whether the application would be maintainable before the High Court only after exhaustion of the remedy before the Sessions Court has been posed before the different High Courts on ‘n’ number of occasions.

It was observed that Allahabad High Court in two different cases rendered its opinions as follows:

Harendra Singh v. State of U.P., 2019 SCC OnLine All 4571: It was held that the bail application filed under Section 438 of the CrPC is not maintainable before the High Court without exhausting remedy before the Sessions Court.

Vinod Kumar v. State of U.P., 2019 SCC OnLine All 4821: In this decision, it was held that such application can be filed directly before the High Court with a rider that strong, cogent compelling reasons and special circumstances must necessarily be found to exist in justification of the High Court being approached first and without the avenue as available before the Sessions Court being exhausted.

Bombay High Court in its decision of Mohanlal Nandram Choudhari v. State of Maharahstra,2007 (4) MhLJ 9held that the choice of choosing the Court, whether Sessions Court or High Court for moving an application under Section 438 CrPC cannot be left to be decided by the accused.

Catena of Judgments follow the common thread that albeit Section 438 CrPC confers concurrent jurisdiction on the High Court and the Sessions Court, an application should ordinarily be filed before the Session Court at the first instance and not directly before the High Court.

Adding to the above it was observed that for filing an application directly before the High Court the applicant has to demonstrate and satisfy the High Court that there exists exceptional, rare or unusual reasons for the applicant to approach the High Court directly.

Bench on perusal of the merits of the bail applications found that there were no exceptional circumstances in the cases at hand which would entitle them to move the anticipatory bail applications directly before the High Court.

Since the Court held that the bail applications are not maintainable directly before the High Court, no interim protection could be continued however the Sessions Court was given a direction to decide the anticipatory bail applications at the earliest as and when the applicants move before the Sessions Court. [Hare Ram Sharma v. State of Chhattisgarh, 2020 SCC OnLine Chh 639, decided on 18-11-2020]

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