Discretion To Choose High Court Or Sessions Court For Moving Anticipatory Bail Can’t Be Restricted By Narrow Interpretation: Delhi High Court

The Delhi High Court has ruled that the discretion of an applicant to choose either High Court or trial court for moving anticipatory bail plea cannot be restricted by construing section 438 of CrPC narrowly.

Analyzing the provision, a vacation bench of Justice Chandra Dhari Singh said that there is no bar on approaching the High Court directly for seeking anticipatory bail and that both the courts have concurrent jurisdiction to deal with such cases.

“It is discretionary for the Applicant either to approach the High Court or the Court of Session. There is no restraint cast upon the Applicant to approach this Court first. It is based upon the discretion of the Applicant which Court they want to approach since both the Court have concurrent jurisdiction and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly,” the court said.

It added that an “over-generous infusion of constraints and conditions” not to be found in Section 438 can make the provision “constitutionally vulnerable” since the right to personal freedom cannot depend on compliance with unreasonable restrictions.

“Section 438 is a procedural provision that is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offense in respect of which he seeks bail,” the court said.

Justice Singh also said that the beneficent provision contained in Section 438 must be saved, not jettisoned, while clarifying that the observations were made in the context that the earlier view was that the power of granting anticipatory bail was extraordinary in character which should be granted only in exceptional cases.

“Therefore, this Court is of the view that this Court has the jurisdiction to entertain the bail application under Section 438 even when the applicant has not approached the Court of Sessions first,” the court observed.

Justice Singh made the observations while granting interim protection to Pankaj Bansal and Basant Bansal in a money laundering case registered by the Enforcement Directorate in 2021. The applicants moved the High Court seeking anticipatory bail in the ECIR registered under sections 3 and 4 of PMLA.

The court granted the relief taking note of the fact that both the applicants were not named in the ECIR, that ED did not implicate them in any of the Scheduled Offences under PMLA and they were not summoned by the probe agency.

“Therefore, in the interest of justice as well as considering the entirety of the matter and the mandate of Article 21 of the Constitution of India, this Court is of the considered opinion that the Applicant may be granted interim protection till the next date of hearing,” the court said while listing the matter for hearing on July 05. 

Title: PANKAJ BANSAL v. STATE (GOVT. OF NCT DELHI) & ANR. and other connected matter

Citation: 2023 LiveLaw (Del) 508

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