[S.438 CrPC] Approaching Sessions Court First For Anticipatory Bail Serves Both Ends & Administration Of Justice: J&K High Court

This principle ensures both justice and efficient administration of justice, a bench of Justice Rajesh Sekhri emphasised.

However the bench clarified,

“There may be emergent circumstances necessitating the person apprehending arrest to directly approach the High Court, provided the reasons assigned by him to approach the High Court, at the first instance, by evading the remedy of approaching the Sessions Court are found genuine and High Court may exercise the discretion without insisting upon filing the bail plea first before the Sessions Court”.

The observations came while hearing a plea moved by Mohd. Shafi Masi and Abdul Rashid Masi who had directly approached the High Court for anticipatory bail in an FIR registered at Police Station Keller, Shopian.

While acknowledging that both the High Court and Sessions Courts have concurrent jurisdiction to hear anticipatory bail applications under Section 438 CrPC, Justice Sekhri emphasized the established practice of approaching the Sessions Court first.

“Though Section 438 of the Code enables an accused to approach the Court of Sessions or the High Court at his option to seek bail in anticipation of arrest, yet it is advisable to first approach the local jurisdictional Court for the relief, as it may serve both the ends of justice and the administration of justice”, the bench said.

Deliberating on the benefits that this approach brings along the bench said that the local Sessions Court, being nearer and easily accessible, may be convenient for an accused to approach the said Court for his emancipation on bail in anticipation of arrest.

Further, it said, “That in case, an accused directly approaches the High Court, without exhausting the remedy available to him for approaching the Court of first instance, he will be deprived of approaching the higher forum, in case his anticipatory bail plea is declined by the Sessions Court”.

Justice Sekhri further underscored that the High Court, when approached after the Sessions Court's decision, has the advantage of considering the lower court's reasoning, leading to a more informed judgment.

“Therefore, for all these reasons, it shall be advisable and desirable for an accused to first approach the Sessions Court and in case, his anticipatory bail plea is rejected by the said Court, it is open to him to approach the High Court for the same relief”, the bench rmarked.

In the present case, the petitioners did not provide any reason for bypassing the Sessions Court and considering these factors, the High Court dismissed the application while allowing the petitioners to approach the Sessions Court for bail.

Case Title: Mohd. Shafi Masi Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 41

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