Section 438 CrPC Doesn't Mandate That Sessions Court Must Be Moved First; But Special Circumstances Must Be Shown To Directly Approach HC : Allahabad HC Full Bench [Read Judgment]

The decision has been rendered by a five-Judges bench comprising Chief Justice Govind Mathur and Justices Ramesh Sinha, Sunita Agarwal, Yashwant Verma and Rahul Chaturvedi, while answering a reference made by a single-Judge of the high court.

The reference referred to a decision rendered by a single-Judge of the high court in Vinod Kumar v. State of U.P. and another, 2019 (12) ADJ 495.

All in all, the five-Judges concurred with the findings in that judgment and observed as under,

"Section 438 CrPC on its plain terms does not mandate or require a party to first approach the Sessions Court before applying to the High Court for grant of anticipatory bail. The provision as it stands does not require an individual first being relegated to the Court of Sessions before being granted the right of audience before this Court."

Section 438 confers concurrent jurisdiction on both High Court and the Sessions Court to entertain an application for anticipatory bail.

Notwithstanding this concurrence, the bench observed that strong, cogent, compelling and special circumstances must necessarily be found to approach the High Court first, without the avenue as available before the Court of Sessions being exhausted.

"…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," it held.

The bench further clarified that it was not inclined to "enumerate" the special circumstances in which an applicant may move to the high court directly. Such circumstances, it held, must be left to the "judicious discretion" of the Court, to be exercised on a case to case basis.

"We are of the considered view that Vinod Kumar rightly desisted from either postulating or particularizing the various circumstances in which an individual may be recognized as entitled to move the High Court directly and left it to the judicious discretion of the Court to be exercised bearing in mind the facts and exigencies of each particular case…

There can never be an encyclopedic exposition as to what would constitute special circumstances. The grounds on which a petition for anticipatory bail may be instituted before the High Court can neither be placed in a straightjacket nor can be comprehensively enumerated," it held.

The bench further referred to the decision of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, whereby a Constitution Bench had cautioned against any attempt to compendiously enumerate the myriad situations in which a petition for anticipatory bail may come to be moved.

"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," the bench held.

In conclusion, it was held

"We would consequently answer the Reference by holding that the decision in Vinod Kumar does not merit any reconsideration or explanation. As rightly held in that decision, there can be no exhaustive or general exposition of circumstances in which an applicant may be held entitled to approach the High Court directly"

Case Details:

Case Title: Ankit Bharti v. State of UP & Anr. (and other connected matters)

Case No.: Crl Misc Anticipatory Bail Application U/S 438 CrPC No. 1094/2020

Quorum: Chief Justice Govind Mathur and Justices Ramesh Sinha, Sunita Agarwal, Yashwant Verma and Rahul Chaturvedi

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