Should Bail Seekers First Exhaust Sessions Court Remedy Before Approaching High Court, SC Set To Examine

The Supreme Court bench of Justices J.Chelameswar and Amitava Roy, on September 1, granted leave on an appeal filed by the Gauhati High Court Bar Association against the judgment of the Gauhati High Court’s Division Bench, dated April 10, 2015, which held that a person/an accused should exhaust his remedy under section 438 or 439 of the CrPC before the Sessions Judge, and only if aggrieved, he could then make an application before the High Court.

The High Court had held, however, that in exceptional illustrated circumstances, a person or an accused could approach the High Court without exhausting his remedy before the Sessions Judge.

The Supreme Court, on Friday, in an interim order held: “The operation of the impugned order is kept in abeyance, until further orders”.

Senior advocates, Kamal Nayan Chaudhary and Apoorba Sharma, appeared for the appellant, while Ms.K.Enatoli Sema, AOR, appeared for the State of Assam.

The High Court’s Division Bench, in 2015, had before it two conflicting decisions on the subject.  The Single Judge in State of Tripura v Samuel Ruhul Askar alias Kutti Mia, in 2001, had held that an accused, seeking bail or anticipatory bail,  should first exhaust his remedy before the Sessions Judge, and thereafter, file application before the High Court.

The Single Judge in Mayur Bordoloi v State of Assam, in 2013, and in Shri Kashinath Sarkar and  Others v State of Tripura (1984), however, had taken a contra view in the matter.

The power and jurisdiction of the Sessions Court and the High Court is concurrent in granting anticipatory bail under section 438 CrPC and bail under section 439 CrPC.  Yet, majority of the bail applications are filed directly without exhausting the remedy before the Sessions Court.

The Gauhati High Court’s Division Bench noted that an anticipatory bail seeker has no absolute right to insist that the High Court should decide his application on merits; it all depends upon the facts and circumstances of each case.

Section 439 does not give any option to choose the forum to the accused unlike under section 438.   When the inferior court and the superior court are invested with concurrent jurisdiction, normally a person or an accused  has to exhaust his remedy before the inferior court, it was held.  It is because the High Court will have the benefit of considering the reasons and opinion given by the inferior court, in case the accused is aggrieved with the decision, and approaches the High Court.

The legislature reposes trust in the wisdom of the Sessions Judges, who by their longstanding experience would have acquired and equipped with necessary skills to exercise the powers under the concurrent jurisdiction. The suitable and eligible Sessions Judges would also be elevated to the High Court, and the object is to share the serious responsibility and powers of the High Court, it was held.

In the case before the High Court, the accused did not first exhaust his remedy before the Sessions Court.  Therefore, the Division Bench held that the accused, who was in custody, must first exhaust his remedy before the Sessions Judge, and thereafter approach the High Court, seeking bail.

In Sandeep Kumar Bafna Vs State Of Maharashtra (2014) a two-Judge Bench of the Supreme Court has held that there are no restrictions on the High Court or Sessions Court to entertain an application for bail, provided, accused is in custody. The judgment has put an to end the decades old practice of first filing a regular Bail Application before a Magistrate having jurisdiction, and get it rejected for the purpose of approaching the Sessions Court or High Court for bail. The Bafna Judgment was decided the limited question 'whether surrendering before a magistrate was  'sine qua non' for filing a regular bail application U/S 439 CrPC before the higher Courts.