Plea For Anticipatory Bail Not Maintainable Before HC Without Approaching Sessions Court, Unless There Are 'Special Reasons': Allahabad HC [Read Judgment]

Plea For Anticipatory Bail Not Maintainable Before HC Without Approaching Sessions Court, Unless There Are

" The party has to explain why he has come to the High Court directly."

The Allahabad High Court has held that anticipatory bail application filed under Section 438 of Criminal Procedure Code is not maintainable before the High Court without exhausting remedy before the Court of Sessions, unless there are 'extraneous or special reasons'.

Justice Chandra Dhari Singh while considering an anticipatory bail plea, considered the objection raised by the state which contended that the accused, without exhausting the remedy before the jurisdiction Sessions Court, has directly approached the High Court. Thus the application is not maintainable and the applicant has to be relegated to the Court of Sessions first and then he can approach the High Court, it was contended.

The Uttar Pradesh government recently reinserted the provision of anticipatory bail in the State with effect from June 6, 2019. Section 438 Criminal Procedure Code which provides for anticipatory bail had been omitted by Uttar Pradesh government during the Emergency.

Referring to various judgments of the High Courts and Supreme Court in this matter, the court observed that it cannot entertain anticipatory bail plea as a matter of routine without examining whether there are any special reasons or special circumstances to entertain the said application.

"It is also to be notable that the Sessions Court will always be nearest and accessible Court to the parties. Moreover, considering the work load of the courts in the country, the superior courts particularly, the High Courts are flooded with heavy pendency of cases. In order to facilitate the other parties who come before the Court with other cases before the High Court (which has got exclusive Jurisdiction) and also in order to provide alternative remedy to the parties, it is just and necessary that the party shall first approach the Sessions Court under Section 438 of Cr.PC. so that the High Court can bestow its precious time to deal with other pending cases which requires serious attention and expeditious disposal, where the parties who have come to the High Court after exhausting remedy before the Magistrate Court or the Sessions Court for grant of bail and for other reliefs.


..The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going through the entire materials on record. In that context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case, with expedition."

The court further observed that if a party chooses to file petition before the High Court first, he/she has to explain why he has come to the High Court directly. It said:

"It is also worth to note here that the Sessions Court and the High Court are concurrently empowered to grant bail under Section 438 of Cr.P.C. The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviated the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far as the Sessions Courts are concerned. Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said provision."

Allowing the accused to withdraw the plea, the court held:

""The bail application filed under Section 438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision."

Click here to Download Judgment

Read Judgment