Except For Exceptional Circumstances Pre Arrest Bail Plea Can't Be Filed In HC Before Approaching Sessions Court First: J&K&L HC
The Jammu & Kashmir and Ladakh High Court on Monday observed that unless there are compelling and exceptional circumstances, without actually exhausting the remedy of filing of pre-arrest bail application before the court of the first instance, one can't invoke the jurisdiction of the High Court."Although, Section 438 Cr. P.C gives concurrent jurisdiction to High Court and Sessions Court...
The Jammu & Kashmir and Ladakh High Court on Monday observed that unless there are compelling and exceptional circumstances, without actually exhausting the remedy of filing of pre-arrest bail application before the court of the first instance, one can't invoke the jurisdiction of the High Court.
"Although, Section 438 Cr. P.C gives concurrent jurisdiction to High Court and Sessions Court to consider a bail application of an accused yet, as a matter of ordinary practice, High Court does not entertain application of a person under Section 438 Cr. P. C unless the said person has approached and exhausted the remedy before the Court of first instance," the Bench of Justice Sanjay Dhar observed.
Essentially, the Court was dealing with an anticipatory bail apprehending his arrest in an FIR registered against him for offence under Section 13 of ULAPA and Section 67 IT Act of Police Station, Baramulla.
Perusing his bail application, the Court noted that before invoking the jurisdiction of the High Court, the petitioner had not exhausted the remedy of making an application for grant of anticipatory bail before the Special Court concerned.
It was averred in the application that the petitioner could not avail the remedy of anticipatory bail before the Designated Court of Additional Sessions Judge, Baramulla because the police had kept a watch on the main gate of that court and the petitioner was apprehending arrest over there.
Against this backdrop, referring to Karnataka High Court's ruling in the case of Smt. Savitri Samso Vs. State of Karnataka, Madhya Pradesh High Court ruling in the case of Smt. Manisha Neema v. State of M.P. and J&K&L HC's ruling in the case of Khurshid Ahmad Khanna Vs. U. T of J&K, the Court came up with the following conclusion:
"It is only in exceptional cases and in special circumstances, that the High Court may entertain an application under Section 438 of Cr. P. C without insisting upon the filing of such application before the court of Sessions in the first instance."
Lastly, adverting to the facts of the case, the Court noted that the petitioner had not disclosed any compelling or special circumstances and that the only contention of the petitioner is that he is apprehending his arrest at Baramulla as the police are keeping watch over there.
"The contention that he is apprehending arrest in the Court Complex at Baramulla is without any substance as he is not required to physically attend the court. Petitioner is seeking bail in anticipation of his arrest, as such, he has physically surrendered himself before the court at the time of filing of the application," said the Court as it dismissed the plea by giving liberty to the petitioner to approach the court of the first instance.
Case title - Rayees Ahmad Khan v. Union Territory through P/S Kupwara
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