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2023 DIGILAW 665 (UTT)

Ashu Tyagi v. State of Uttarakhand

2023-12-07

VIVEK BHARTI SHARMA

body2023
JUDGMENT : VIVEK BHARTI SHARMA, J. 1. Applicant Ashu Tyagi is seeking anticipatory bail in FIR/Case Crime No. 0054 of 2023, under Sections 419 & 420 IPC, Police Station Vikasnagar, District Dehradun. 2. Heard learned counsel for the parties and perused the record. 3. Learned State Counsel would argue that applicant has an equally efficacious remedy available to file the anticipatory bail application before the Sessions Court. She would further argue that instead of approaching the Sessions Court, the applicant/accused has directly come before this High Court without exhausting equally efficacious remedy available before Sessions Court. 4. She 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 vs. State of Assam and Others, 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 applicant would submit that the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. and the applicant cannot be compelled to apply for anticipatory bail before the court of Sessions before approaching this High Court. He would refer a judgment of Hon’ble Division Bench of this Court in Mubarik and Another vs. State of Uttarakhand and Others, W.P. (Crl.) No. 2059 of 2018, decided on 02.11.2018 wherein it has been held that the High Court and the Court of Sessions have concurrent jurisdiction under Section 438 of Cr.P.C. and it is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly. 6. 6. In view of this Court, it is settled position of law that the High Court and the Sessions Court have concurrent jurisdiction u/s 438 Cr.P.C. This is also evidently 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 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, shall always has discretion to entertain it 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 applicant/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. 8. As regards the case of Mubarik (supra) which has been relied upon by the counsel for the applicant, a perusal of said judgment reveals that the terms of reference in the said case before the Hon’ble Division Bench was Whether the High Court and the Court of Sessions exercises concurrent jurisdiction under Section 438 of Cr.P.C. In Para 16 of this judgment, the Division Bench observed as under: “16. In view of the aforesaid legal position, we have no hesitation in holding that the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. It is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly.” This judgment talks only about concurrency of the jurisdiction of the High Court and the Court of Session for grant of anticipatory bail and does not lay law on the issue that the High Court exercising jurisdiction u/s 438 of Cr.P.C. does not have discretion not to entertain such an application on the ground that applicant firstly apply to the Court of Session for the same. 9. 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 that, 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. 10. In similar nature of case in Ankit Bharti vs. State of U.P. and Another in 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 respect of both the apprehension of arrest as well as in justification of the concurrent jurisdiction of the High Court being invoked directly....” 11. 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 respect of both the apprehension of arrest as well as in justification of the concurrent jurisdiction of the High Court being invoked directly....” 11. Hon’ble High Court of Andhra Pradesh at Hyderabad in Y. Chendrasekhara Rao and Others vs. Y.V. Kamala Kumari and Others, 1993 SCC Online A.P. 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.” 12. 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 decide an application for bail either under Section 438 or Section 439 Cr.P.C.” 13. Hon’ble High Court of Bombay in Mohanlal vs. State of Maharashtra, Criminal Application 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....” 14. In the present case, applicant/accused is resident of Dehradun. The F.I.R. is also registered in District Dehradun. Learned counsel for the applicant/accused could not spell out the facts and 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. 15. In view of the above, this Court is not inclined to entertain the present application for anticipatory bail at this stage. Anticipatory bail application is, accordingly, dismissed with liberty to file application for anticipatory bail before the concerned Sessions Judge.