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Refrain Approaching High Court Directly U/S 438 CrPC Before Exhausting Remedy Before Sessions Court, Unless Exceptional Circumstances: J&K&L HC
Basit Amin Makhdoomi
15 Jun 2022 11:52 AM IST
The Jammu and Kashmir and Ladakh High Court recently ruled that although Section 438 of the CrPC gives concurrent jurisdiction to High Court and Sessions Court to consider an anticipatory bail application of an accused yet, as a matter of ordinary practice, High Court does not entertain such applications unless the person apprehending arrest has exhausted the remedy before the Sessions...
The Jammu and Kashmir and Ladakh High Court recently ruled that although Section 438 of the CrPC gives concurrent jurisdiction to High Court and Sessions Court to consider an anticipatory bail application of an accused yet, as a matter of ordinary practice, High Court does not entertain such applications unless the person apprehending arrest has exhausted the remedy before the Sessions Court or in case there exist exceptional circumstances.
A comprising of Justice Sanjay Dhar was hearing an anticipatory bail plea wherein after the perusal of the record the court had found that the petitioner had previously moved an application for grant of anticipatory bail before the Sessions Judge, who had called the report of police without passing an interim protection order in favour of the petitioner. Failing to elicit an immediate relief from the sessions court, the petitioner had midway abandoned the said pursuit and withdrew the bail application. Subsequently the petitioner had immediately approached the High Court invoking its jurisdiction under Section 438 of CrPC.
The bench in its order also made a reference of Smt. Savitri Samso vs. State of Karnataka, 2001 CriLJ 3164, a judgement of the Karnataka High Court wherein it was observed:
"The Sessions Court is nearer to the accused and easily accessible. It will be more speedy disposal since the investigation reports or case papers also can be summoned immediately. There is no reason to believe that Sessions Court will not act in accordance to law and pass appropriate order. In a given case if any accused is grieved his further remedy would be to approach the High Court. In such case, the High Court will also have the benefit of the reasons given by the Sessions Court. As such, looking at the case from any angle, in my view, simultaneous filing of application for bail in both the Sessions Court and the High Court is impermissible."
The bench in its order also placed reliance on a judgment Madhya Pradesh High Court in the case of Smt. Manisha Neema vs. State of M. P, 2003(2) MPLJ 587, dealing on the said subject. The court therein had reasoned:
"The jurisdiction of High Court and Court of Session under Section 439, Cr. PC being concurrent, as a matter of practice, the bail applicants are required ordinarily to approach the Court of Session in the first instance and if relief is denied they approach the High Court under Section 439, Cr. PC itself, not as a Superior Court sitting in appellate or revisional jurisdiction over the order of the Court of Session, but because the Superior Court can still exercise its own jurisdiction independently, unaffected by the result of exercise by the Court of Session because the latter is an Inferior Court though vested with concurrent jurisdiction. The application seeking bail before the High Court is accompanied by an order of the Court of Session rejecting a similar prayer. The idea is to provide the Superior Court with an advantage of apprising itself with the grounds as considerations which prevailed with the Court of Session in taking the view which it did".
The bench in its order also maintained that despite the above observations there is no embargo on the petitioners in directly approaching the High Courts for relief under section 438 CrPC but the applicant has to demonstrate and satisfy the High Court that there exist exceptional, rare and unusual reasons for the applicant to approach the High Court directly.
While dismissing the bail application and expressing its disapproval on the said practice the court recorded that even though the petitioner did approach the Sessions Court, yet he abandoned the application midway without actually exhausting the said remedy as the petitioner withdrew the said application.
Merely because Sessions Judge, on the first date of hearing, called the report from the police without passing an order of interim protection in favour of the petitioner does not entitle the petitioner to move the High Court by abandoning his earlier application before the Court of Sessions, the bench underscored.
Case Title : Rouf Ahmad Mir Vs SSP And Anr
Citation: 2022 LiveLaw (JKL) 46
