Karnataka High Court
Sri. Prajwal Revanna vs State By Holenarasipura Police Station on 9 July, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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CRL.P No. 3292 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 3292 OF 2025 (439(Cr.PC) / 483(BNSS)
BETWEEN:
SRI. PRAJWAL REVANNA,
S/O H. D. REVANNA,
AGED ABOUT 33 YEARS,
CHENNAMBIKA NILAYA,
CHENNAMBIKA CIRCLE,
HOLENARASIPURA,
HASSAN - 573 211
...PETITIONER
(BY SRI. PRABHULING K.NAVADGI, SENIOR COUNSEL FOR
SRIYUTHS; ASHWIN C., PARITOSH S.M., KEERTHI REDDY,
ADVOCATES)
AND:
STATE BY HOLENARASIPURA POLICE STATION
(NOW INVESTIGATED BY THE SPECIAL INVESTIGATION TEAM)
Digitally signed CID, BENGALURU,
by CHANDANA NO.1, CARLTON HOUSE,
BM PALACE ROAD,
Location: High BENGALURU - 560 001
Court of (REPRESENTED BY SPECIAL PUBLIC
Karnataka PROSECUTOR, S.I.T. CID, BANGALORE)
...RESPONDENT
(BY SRI. PROF. RAVIVARMA KUMAR, SPL.P.P. A/W
SRI. B. N. JAGADEESHA, SPL.P.P.)
THIS CRIMINAL PETITION IS FILED U/S 439 CR.PC (FILED U/S
483 BNSS) PRAYING TO DIRECT THE RESPONDENT
HOLENARASIPURA TOWN P.S., TO RELEASE THE PETITIONER /
ACCUSED NO.2 ON BAIL IN C.C.NO.29064/2024 ARISING OUT OF
CR.NO.0107/2024 FOR THE ALLEGED OFFENCES U/S 376,
376(2)(K), 354, 354(A), 354(B), 354(D), 506, 509, 201 OF IPC AND
SEC. 66E OF I.T. ACT, 2000 BY THE RESPONDENT
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CRL.P No. 3292 of 2025
HC-KAR
HOLENARASIPURA TOWN P.S., POLICE INVESTIGATED BY
SPECIAL INVESTIGATION TEAM, C.I.D., BANGALORE, PENDING ON
THE FILE OF THE HON'BLE XLII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BANGALORE (42ND ACMM) SPECIAL
COURT TO DEAL WITH CRIMINAL CASES RELATING TO SITTING
AS WELL AS FORMER M.P. AND MLA TRIABLE BY MAGISTRATE.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, the petitioner who is accused No.2 in C.C.No.29064/2024 arising out of Crime No.107/2024 registered by the respondent - police for the offences punishable under Sections 376, 376(2)(K), 354, 354(A), 354(B), 354(D), 506, 509, 201 of IPC r/w Section 66E of I.T.Act, 200o, has preferred the present petition under Section 439 of Cr.P.C. seeking his release on bail and for other reliefs.
2. Heard Sri.Prabhuling K.Navadagi, learned Senior counsel appearing for the petitioner and Prof.Ravivarma Kumar, learned Special Public Prosecutor for the respondent.
3. Learned Spl.P.P. for the respondent raised a preliminary objection regarding maintainability / entertainability of the present petition by contending that the same was not maintainable / -3- NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR entertainable by this Court, since the earlier bail petition in Crl.Misc.5509/2024 was filed by the very same petitioner before the trial court was dismissed vide order dated 26.06.2024, subsequent to which, the bail petition in Crl.P.No.6401/2024 was also dismissed by the co-ordinate Bench of this Court vide final order dated 21.10.2024 and confirmed by the Apex Court in SLP (Crl.)No.15292/2024 dated 11.11.2024.
3.1 It is therefore submitted by the learned Spl.P.P. for the respondent that since the petitioner had earlier approached the trial court, this Court and Apex Court as stated supra, the present petition was not maintainable / entertainable at the instance of the petitioner, who is to be relegated to expedite his remedy before the trial court before approaching this Court by filing the present petition. In support of his contentions, learned Spl.P.P. placed reliance upon the following judgments:-
(i) Arvind Kejriwal v. Central Bureau of Investigation - 2024 SCC OnLine SC 2550;
(ii) Mr. Dinesh Gowda and Another v. The State through Whitefield Police Station, Bangalore - ILR 2016 KAR 3965;
(iii) Smt.Savitri Samson vs. State of Karnataka -
ILR 2001 KAR 4080;
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(iv) KWMTA GWRA BRAHMA vs. State of Assam - 2015 SCC OnLine Gau 170;
(v) Phulami Tamang vs. State (NCT of Delhi) - 2025 SCC OnLine Del 400;
(vi) Mohalal v. State of Maharashtra - 2007 SCC OnLine Bom 421;
(vii) Sri.Imran H vs. State of Karnataka - Crl.P.No.362/2025 Dated 31.01.2025;
(viii) Shekhar Prasad Mahto @ Shekhar Kushwaha vs. The Registrar General, Jharkhand High Court & Anr.
- Writ Petition(s) (Criminal) No(s). 55/2025 dated 07.02.2025 (SC);
4. Per contra, learned Senior counsel for the petitioner submitted that the petitioner was undisputedly arrested as long back as on 31.05.2024 and has been in judicial custody for more than 13 months as on today and as such, in view of the long incarceration of the petitioner for more than 13 months, there was no bar / prohibition for the petitioner to maintain the present petition which is entertainable by this Court without relegating the petitioner to approach the trial court and as such, the preliminary objection raised by the respondent may be rejected and the matter be disposed of on merits. In support of his submissions, he placed reliance upon the following judgments:-
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(i) Kanumuri Raghurama Krishnam Raju vs. State of Andhra Pradesh and others - (2021) 13 SCC 822;
(ii) Manish Sisodia vs. Directorate of Enforcement
- 2024 SCC OnLine SC 1920.
(iii) Arvind Kejriwal v. Central Bureau of Investigation - 2024 SCC OnLine SC 2550;
5. I have given my anxious consideration to the rival submissions and perused the material on record.
6. Initially, the question / issue as to whether the present petition could be taken up by this Bench is came up for consideration, since earlier bail petition in Crl.P.No.6401/2024 was rejected by the co-ordinate Bench of this Court vide final order dated 21.10.2024. In this context, it is relevant to state that the petitioner has filed a Memo dated 09.07.2024, which reads as under:-
MEMO "The undersigned Counsel for the Petitioner most respectfully submits that, in view of the clarification Order dated:
07.02.2025 by the Hon'ble Supreme Court of India in Writ Petition (Criminal) No.55/2025 regarding listing of Successive Bail Petitions before the Concerned No.RJ.No.28/2025 issued by this Hon'ble Court, the Petitioner has no objection for the instant application/petition to be heard before the present Roster deciding matters pertaining Special Court (Where members of the state or central legislature are accused).
-6-NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR Wherefore, it is respectfully prayed that the instant Memo be taken on record for necessary Orders in the interest of justice and equity".
7. The aforesaid Circular issued by this Court reads as under:-
RJ No.28/2025 High Court of Karnataka, Bengaluru, th Dated: 20 February 2025 CIRCULAR Hon'ble Supreme Court of India, in the case of Shekhar Prasad Mahto @ Shekhar Kushwaha v. The Registrar General, Jharkhand High Court and Another, in Writ Petition (s) (Criminal) No. (s) 55 of 2025 passed the order clarifying that if in a particular High Court, the bail applications are assigned to different single Judge/Bench, in that event, all the applications arising out of same FIR should be placed before one learned Judge and if on account of change of the roster, the learned Judge who was earlier dealing with the bail matters is not taking up the bail matters, the aforesaid directions would not be applicable, the relevant portion of which reads as under:-
"Xxxx Xxxx
7. However, it is to be noted that in many High Courts, the roster system is followed.
8. After a particular period, the assignment of the learned Judges change. It is also quite possible that the learned Single Judge, who was earlier taking up the assignment of bail matters may in the subsequent roster be a part of the Division bench.-7-
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9. We are, therefore, of the view that if the aforesaid direction is followed universally, it may lead to disruption of benches inasmuch as the learned judge who had initially heard the bail application of one of the accused, may have become a part of some Division Bench when a bail application arising out of the same FIR is filed by another accused.
10. We, therefore, clarify that if in a particular High Court, the bail applications are assigned to different single Judge/Bench, in that event, all the applications arising out of same FIR should be placed before one learned Judge.
11. This would ensure that there is a consistency in the views taken by the learned judge in different bail applications arising out of the same FIR.
12. However, if on account of change of the roster, the learned judge who was earlier dealing with the bail matters is not taking up the bail matters, the aforesaid directions would not be applicable.
13. Further, we expect that in order to maintain consistency in the views taken by the Court, the learned judge, who will hear the subsequent applications filed for bail, may give due weightage to the views taken by the earlier judge, who had dealt with the bail applications arising out of the same FIR.
14. We find that if this is not followed and if the judges sitting in the Division Bench or thereafter taking up different assignments are required to take up the applications arising out of the same FIR, it may further delay the decisions in the bail matters.
15. The Registrar (Judl.) is directed to forward a copy of this order to the Registrar Generals of all the High Courts.-8-
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16. Needless to state that taking into consideration the urgency in deciding bail matters, learned Judge of the High Court to whom the bail application of the present petitioner is assigned, shall decide the matter expeditiously.
xxxx xxxx"
In view of the above, all the concerned officers and officials of the Principal Bench and Benches at Dharwad and Kalaburagi are hereby directed to post bail petitions arising out of same FIR before the same Judge in the event of bail petitions are assigned to more than one Bench and if on account of change of the roster, the Hon'ble Judge who was earlier dealing with the bail matters is not taking up the bail matters, the above direction is not applicable."
8. In view of the aforesaid Memo filed by the petitioner coupled with the Circular issued by this Court and the judgment of the Apex court in Shekar Prasad Mahto's case supra, the present petition is taken up for consideration by this Court.
9. As stated supra, before proceeding further, it would be necessary to deal with the preliminary objection raised by the respondent as to maintainability / entertainability of the present petition in view of the earlier round of litigation between the parties.
10. In this regard, a perusal of the material on record will indicate that as stated supra, the petitioner had earlier filed -9- NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR Crl.Misc.No.5509/2024 seeking regular bail which was dismissed by the trial court vide order dated 26.06.2024. Subsequently, the petitioner approached this Court in Crl.P.No.6401/2024, which was also dismissed by the co-ordinate Bench of this Court vide final order dated 21.10.2024. The said order of this Court was challenged by the petitioner before the Apex Court in SLP (Crl.) No(s).15292/2024 which was dismissed by the Apex Court vide final order dated 11.11.2024.
11. There is no gainsaying the fact that the trial court as well as this Court have concurrent jurisdiction to entertain a petition for bail under Section 439 of Cr.P.C; however, in order to approach this Court without approaching the trial court first, it would be necessary / essential for the petitioner / bail applicant to plead, prove and establish existence of exceptional / compelling circumstances which would demonstrate as to why he did not avail the remedy of approaching the trial court before approaching this Court seeking bail. A co-ordinate Bech of this Court in an application for anticipatory bail under Section 438 Cr.P.C. in Dinesh Gowda's case supra, held as under:-
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR "3. Before adverting to the factual matrix of this case and to ascertain as to whether the petitioners are entitled for grant of anticipatory bail or not; a serious legal question has been raised before this Court by the Learned High Court Government Pleader that the petitioners without exhausting the remedy under Section 438 of Cr.P.C. before the jurisdiction Sessions Court, has directly approached this Court. Therefore, the petition is not maintainable and the petitioners have to be relegated to the Court of Sessions first and then they can approach this Court. In this background, the legal question that arises for consideration of this Court is that --
"Whether the Petition filed u/'s. 438 of Cr. P.C. is maintainable before the High Court without exhausting remedy under the said provision before the Court of Sessions which has concurrent jurisdiction with that of the High Court?"
XXXX
15. As could be seen from the various decisions cited by the Learned High Court Government Pleader of different High Courts, they have also taken the similar view that the parties have to approach the Sessions Court first and after exhausting the remedy they can approach the High Court but for the special reasons, they can also approach the High Court.
16. This Court in K.C. Iyya v. State of Karnataka as noted supra, has dealt with this provision and also the
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR concurrent jurisdiction of the High Court and the Sessions Court, this Court has not only considered various points raised in this regard, but also considered the effect of the ruling of the Hon'ble Apex Court between Gurubaksh Singh Sibbia v. The State of Punjab and Sarbajit Singh v. The State of Punjab (supra) and also various decisions of the other High Courts and ultimately after interpreting the said provision, it held that the party has to approach the Sessions Court first and then he can approach the High Court or for special reasons, he can approach the High Court.
17. Having looked into the above said rulings and also the principles laid down in Gurubakshsingh's case, it is crystal clear that there is no dispute with regard to the concurrent powers of the High Court and as well as the Sessions Court.
18. The intention of bringing out Section 438 Cr.P.C. is enabling each and every person in the Country if under extraordinary circumstances under exigencies either to approach the Court of Sessions or the High Court which can be concurrently exercised by both the Courts. Though such remedy, cannot be riddled down by imposing any extraordinary condition but still the Court can refuse to entertain the bail petition and direct the party to approach the Court of Sessions first because Section 438 of Cr.P.C. shall not be exercised as a matter of right by the party, though it can be invoked either before the Sessions Court or before the High Court. It is purely the discretionary power of the Court to exercise power depending upon the
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR facts and circumstances of each case. Therefore, the High Court can direct the party to go first before the Court of Sessions and then come to the High Court though there is no embargo under the statute itself, but the Court can do so on the basis of various factors.
19. It is worth to note here that whenever the concurrent jurisdiction is vested under the statute simultaneously in two Courts of one is superior to the other, then it is appropriate that the party should apply to the subordinate Court first, because the higher Court would have the advantage of considering the opinion of the Sessions Court. More over, the party will get two opportunities to get the remedy cither before the Sessions Court or before the High Court but if once he approaches the High Court, he would run the risk that, the other remedy is not available to him if he failed to get the order in the High Court, he cannot go before the Sessions Court for the same remedy. However, vice versa is possible.
20. It is also to be notable that the Sessions Court will always be nearest and accessible Court to the parties. More over, 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.P.C. so that the High Court can bestow
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR 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.
21. 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.
22. It should be borne in mind that the Judges have to decide the cases on considering law, justice, equity and good conscience, as they come before them. It should not also be lost sight of the prevailing circumstance to interpret the law in such a manner so that it would be beneficial to the entire judicial system as well as the litigant public. It will not be strange by employing judicial artifices and techniques, the Court can wisely interpret law by adopting a policy which is adequately meet the ends of justice. In such circumstances, the Court has to interpret the law in such a manner which would advance Justice and suppress the mischief. It should not be interpreted in a straight jacket formula while laying down cast iron principles. The Judges have to understand why such statute has been introduced with what intention by the legislators, while considering the particular provision.
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23. 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 43 8 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.
24. Therefore, looking to the above said rulings of different High Courts and particularly, the consistent view taken up by this Court, I do not find any strong reason to deviate from the said view taken by this Court earlier. Hence, I am of the opinion, the point formulated by me noted above has to be answered accordingly.
25. Hence, I answer the point raised as follows:
"The bail petition filed u/s.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."
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26. Having held in such manner, now let me see whether the petitioner has approached this Court with any such extraneous or special reason."
12. Similarly, in Savitri Samson's case supra, one more co-ordinate Bench of this Court held as under:-
"I have heard both sides in detail. No doubt, under Section 439 Cr. P.C. both the Sessions Court and the High Court have concurrent jurisdiction to consider the application of an accused to enlarge him on bail. But, that does not mean that an accused can file bail applications simultaneously before both the Courts. Keeping in view the word "or" used in the Section, which indicates that bail application can be filed either before the Sessions court or before the High Court and not simultaneously before both Courts.
In my view and as is the practice although the High Court has concurrent jurisdiction with Sessions Court to grant bail, it is desirable that the ordinary practice should be that the lower Court should be first moved in the matter, though in exceptional case and special circumstances, the High Court may entertain and decide an application for bail either under Section 438 or Section 439 Cr. P.C. this is specially important because any expression of opinion by the Superior Court, is likely to prejudice if not frequently, in cases few and far between, the trial in the lower Court. Hence, in my view, it is only in exceptional circumstances that an application for bail should be made directly to the High Court and in the absence of special circumstances
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR the application should not be entertained by the High Court.
By looking into analogues provision in the Code it is normally to be presumed that the Court of Sessions would be first approached for grant of bail, unless an adequate case for not approaching that Court has been made out. I am of the opinion that it would be a sound exercise of judicial discretion not to entertain each and every application for either anticipatory or regular bail directly by the High Court bypassing the Court of Sessions.
In my view ordinarily, 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. Hence, in the present case also, this petition before this Court is not maintainable one, in view of the admitted fact that the petitioner has already approached the Sessions Court, Gulbarga, for the same relief and the Sessions Court has yet to decide the same.
At this stage, learned Counsel submits that he be permitted to withdraw the petition with liberty to approach
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR this Court if need be. Permission is granted and the petition is dismissed as withdrawn.
Taking into consideration the peculiar facts and circumstances of the case and the submission of the Counsel for the petitioner, the Sessions Court is directed to dispose of the application expeditiously within one week from the next date fixed, i.e., 8.6.2001.
Before parting with the case, I am very much pained to note the misleading attempt made by the Advocate before the Sessions Court as to the nature of the petition filed before this Court. Such misleading practice is deprecated.
With these observations, this petition stands dismissed as withdrawn."
13. The Division Bench of the Gauhati High Court in KWMTA GWRA Brahmas' case supra, held as under:-
"5. The power and jurisdiction of the Sessions Court and the High Court is concurrent in granting anticipatory bail under section 438 of the Cr.PC and bail, under section 439 of the Cr.PC. It is seen that majority of the bail applications filed before the High Court have been filed directly without exhausting the remedy before the Sessions Court. Therefore, the question that arose for consideration is to the effect that whether it was essential that a person/accused before approaching the High Court for grant of anticipatory bail (438 of the Cr.PC) and bail (439 of the Cr.PC) should exhaust his remedy before the
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR Sessions Court and then file application before the High Court.
6. In the decisions of the Madhya Pradesh High Court in Abdul Karim Khan v. State of Madhya Pradesh, AIR 1960 MP 54, the Rajasthan High Court in Hajialisher v. State of Rajasthan, 1976 Crl. LJ 1658, the Punjab and Haryana High Court in Chhajju Ram Godara v. State of Haryana, 1978 Crl. LJ 608, the Bombay High Court in Jagannath v. State of Maharashtra, 1981 Crl. LJ 1808, the Karnataka High Court in K.C. Iyya and, etc. v. State of Karnataka, 1985 Crl. LJ 214, the Gujarat High Court in Rameshchandra Kashiram Vora and, etc. v. State of Gujarat, 1988 Crl. LJ 210, the Madhya Pradesh High Court in Smt. Manisha Neema v. State of M.P., 2003 (2) Crimes 402, and the Kerala High Court in Mathew Zacharish v. State of Kerala, 1974 Crl. LJ 1198 and Usman v. The Sub-Inspector of Police, 2003 Crl. LJ 3928, it is held that the accused should first exhaust his remedy before the Sessions Court before making an application before the High Court for grant of anticipatory bail under section 438 of the Cr.PC and bail under section 439 of the Cr.PC.
7. The reasons stated in the above decisions, by and large, are as follows:
(i) Whenever the concurrent jurisdiction is vested by the statute simultaneously in two courts of whom one is superior to the other, it is appropriate that the party should apply to the inferior court first because the superior court would have the advantage of considering the opinion of
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR the inferior court when occasion arises for exercise of other's jurisdiction in the matter.
(ii) The inferior court normally Will be the nearest accessible court. Therefore, it is necessary that the applications be made before the inferior court.
(iii) The superior court is flooded with heavy pending cases. It would be more appropriate that the inferior court has to be approached in the first instance so that the superior court will have sufficient time to deal with the other pending cases which require serious judicial attention for a just and expeditious disposal.
(vi) The grant of anticipatory bail or bail is by and large requires appreciation and scrutiny of facts to see whether a person/accused is entitled to bail or not.
8. In the above decisions/however, it is laid down that it is not a strict rule that; the party should first approach the Sessions Court and then move the High Court under section 438 of the Cr.PC or 439 of the Cr.PC. However, in exceptional circumstances it is said that the party can move the High Court directly without approaching the Sessions Court.
9. Per contra, a Full Bench of the Allahabad High Court in para 8 of its judgment in Onkar Nath Asrawal v. State, 1976 Crl. LJ 1142 has made the following observations:
"8. It may, however, be mentioned that inasmuch as section 438 of the Code of Criminal Procedure, 1973 gives a discretionary power to grant bail, this discretion is to be exercised according to the facts and circumstances of each case. There may be cases in which it may be considered by the High Court to be proper to entertain an application without
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR the applicant having moved the Court of Session initially. Similarly there may be cases in which the court may feel justified in asking the applicant to move the Ses-along Court or to refer the matter to that court. In any case all depends upon the discretion of the Judge hearing the case".
10. The High Court of Himachal Pradesh in Mohan Lai; etc. v. Prem Chand, AIR 1980 HP 36 has held that it is not necessary that the applicant should be asked to apply to the Sessions Judge before making an application to the High Court for anticipatory bail under section 438 of the Cr.PC. However, in para 11 of its judgment the High Court has made the following observations:
"11. A bare reading of the section shows that no restriction, unlike sections 397(3) and 399(3), has been placed on a person wishing to move the High Court for anticipatory bail. A person is not required to move the Sessions Judge first. It is true that under the old Code whenever a concurrent jurisdiction was conferred on more than one court, the inferior court was expected, as a matter of practice, to be approached first. However, in the case of anticipatory bail to force a person to move the Sessions Judge first may result in uncalled for curtailment of his right. For various reasons a person may like to move the High Court straightway and may not like to; approach the Sessions Judge. Since the section relates to the liberty of a person, we would not like to impose any kind of restriction on his right to move the High Court in the first instance".
11. The High Court of Calcutta in Diptendu Nayek v. State of West Bengal, 1993 CWN 229 has held that an accused can move anticipatory bail before the High Court even though his application under section 438 of the Cr.PC is rejected by the Sessions Judge: while doing so, the petitioner cannot apply under the revisional jurisdiction
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR of the High Court but can apply under section 438 of the Cr.PC.
12. The Andhra Pradesh High Court in Y. Chendrasekhara Rao v. Y.V. Kamala Kumari, 1993 Crl. LJ 3508 has held that the provisions of section 438 of the Cr.PC conferred power both in the High Court and the Sessions Court for anticipatory bail. As for the denial of moving the High Court in the first instance, the High Court in para 22 of its judgment has made the following observations:
"22. The practice followed by this court in entertaining revision petitions under the Code of Criminal Procedure, 1898 cannot afford any guidance in the interpretation of section 438 of the present Code. Which should be more convenient to the affected party cannot be conjectured by the High Court when Code confers concurrent jurisdiction both on the High Court and the Court of Session. If the party who intends to move an application under section 438 feels that the moving the Court of Session is more convenient, he may do so. But if he thinks that approaching the High Court is more convenient and less time-consuming he shall not be precluded from doing so. Situations may conceivable arise when a person may find it more efficacious to approach the High Court under, section 438. A resident of Srikakulam or Yisakhapatnam, if apprehends arrest when he is in Hyderabad, may find it more convenient to move the High Court under section 438 for anticipatory bail without any loss of time instead of moving the Court of Session of his native District. It is not possible to visualise comprehensively what precise reasons impel persons to invoke jurisdiction of the High Court, in the first instance, under section
438."
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13. The High Court of Kerala in para 12 and 13 of its judgment in Balan v. State of Kerala, 2004 Crl. LJ 3427 has, made the following observations:
"12. It is undoubtedly true that the courts have not commended 'frog leaping'. This view was expressed in Mathew Zacharia v. State of Kerala, 1974 KLT 472, while examining a petition under section 497. The court was Obviously considering a matter before section 438 had been brought on the Statute book. The obvious reason was that the Code did not confer the right to choose. Even otherwise, the courts respect the principle of hierarchy. This, however, cannot mean that the doors of this court shall be shut out to a person whose liberty is under an imminent threat and he will be allowed entry only after the bail has been declined by the Sessions Court. Accepting this principle may result in denial of liberty. We need to remember that for a majority of people, the sight of prison is painful. The thought of the trauma is terrifying. It creates a terror in the mind. The court cannot be mindless of such a person's plight. The need to save him from the shame and shock has to be kept in view.
13. Thus, it is no surprise that the statute has given the applicant a choice. On a plain reading of the statutory provisions, it is clear that the right to choose the forum is with the person who is apprehending arrest or has been actually arrested. This right should not be curtailed by any Self- imposed restraint. Such restrictions/as mentioned in the Order, can result in more harm than good and defeat the object with which the provision was introduced."
14. After carefully analysing the ratio laid down in the above decisions the salient aspect that emerges is to the effect that--
(i) Although under section 438 of the Cr.PC a person/accused is given the right to move an anticipatory bail either before the Court of Sessions or the High Court it is, always at the discretion of the High Court that whether to entertain the
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR application or not. There is no absolute right on the person/accused to insist that the High Court should decide his application on merits: it all depends upon the facts and circumstances of each case.
(ii) Insofar as the provisions of section 439 are concerned no option to choose the forum is given to the person/accused unlike tinder section 438. When the inferior court and the superior court are invested with concurrent jurisdiction/normally a person/accused has to exhaust his remedy before the inferior court. If the person/accused is aggrieved by the order of the inferior court then he can approach the High Court, in which event the High Court will have the benefit of considering the reasons and opinion given by the inferior court. The objective of investing concurrent jurisdiction in the Sessions Court and in the High Court is basically for the reason that the Legislature reposed trust in the wisdom of the Sessions Judges who by their longstanding experience would have acquired and equipped with necessary skills to exercise the powers under the concurrent jurisdiction. The suitable and eligible Sessions Judges would also be elevated to the High Court. The object of investing concurrent jurisdiction is to share the serious responsibility and powers of the High Court.
(iii) For consideration of bail applications a lot of miscellaneous work is to be done-like going through the case-diary, remand applications, statements of the witnesses, etc. Many a time the investigating officers from different places of the state have to be summoned for
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR production case-diaries and it becomes a more time- consuming exercise. The Sessions Courts which are nearest to the police stations in its division where investigations are done it is easy for the Sessions Court to summon the case-diaries and investigation papers for considering the bail application. Therefore, it is necessary that the Sessions Court which is invested with the concurrent jurisdiction could effectively deal with all preliminary work of scrutiny of the investigation material while considering the bail application. In the event of rejection of bail application by the Sessions Court the persons/accused can still move the High Court for grant of anticipatory bail under section 438 of the Cr.PC or bail under section 439 of the Cr.PC, as the case may be.
(iv) The High Court in its writ jurisdiction will have to decide the cases involving the challenge to the actions of the Government and the statutory authorities, etc. The High Court as a court of appeal and second appeal will have to deal with civil appeals, criminal appeals. Besides, the High Court has revisional and inherent jurisdiction under the Code of Criminal Procedure. The. High Court under article 227 of the Constitution of India will have to consider the orders of the tribunals and quasi-judicial authorities; besides, shall have to consider the orders passed by the Civil Courts in the matter of interlocutory application. The quality of work the High Court does is of very important nature which requires laying down the law on the varied and several cases that come before the High Court in variety of cases.
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(v) The number of pendency of cases at the High Court would be usually high and a large chunk of the judicial time has to be devoted to several subjects where questions of law have to be resolved and ratio has to be laid down as precedent to be followed by the lower court. Therefore, in order to avoid the avoidable additional burden it is just and necessary. that a person/accused be asked to approach the Sessions Court: if he is able to get the relief before the Sessions Court the question of invoking the jurisdiction of the High Court would not arise.
(vi) The practice under the-Code of Criminal Procedure earlier to the 1973s was that in the matters of revision and bail concurrent jurisdiction was invested in the High Court and the Sessions Court. It was the practice that a person/accused had to exhaust his remedy before the Sessions Court before he invoked the revisional jurisdiction or sought bail under section 498 of the Cr.PC before the High Court.
15. The profile of the filing of bail application before the this court from the year 2004 to 2014 (31.10.2014) is as follows.
Year Institution
2004 2778
2005 3288
2006 3745
2007 4934
2008 6022
2009 5171
2010 6543
2011 7049
2012 9120
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HC-KAR
2013 9622
2014 7424
16. The above figures disclose that yearly there is great deal of increase in the number of filing of bail application directly before this court and it is consuming a large chunk of the judicial time for disposal of bail applications. Almost 2-3 benches are regularly constituted to deal with the bail applications. There is huge pendency of criminal appeal before the Division Bench, and criminal appeal, criminal revision and criminal petition (482 of the Cr.PC) before the Single Judge, besides there is huge pendency of civil appeals. Not usually this High Court has always functioned with full sanctioned strength. There are currently three outlying benches where Judges have to be deputed to deal with the work at the outlying benches.
17. It is, therefore, necessary that normally a person/accused should file an anticipatory bail application under section 438 of the Cr.PC or a bail application under section 439 of the Cr.PC before the Sessions Court and thereafter he can approach the High Court. However, this is not an inviolable rule. In exceptional circumstances a person/accused can directly approach the High Court. The following are the circumstances under which a person/accused can directly approach the High Court.
(i) When a person/accused from other State has to move an application for grant of anticipatory bail under section 438 of the Cr.PC, if it is convenient for him to move such application before the High Court directly, which is nearer
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR from point of distance, such in the application filed before the High Court need not be rejected on the ground that he can approach the Sessions Court unless the Sessions Court is also located in the same place.
(ii) Whenever in a Sessions' jurisdiction a particular incident or crime has attracted a lot of public and media attention with an adverse public opinion having been built up against the person/accused in such cases section 438, Cr.PC applications and section 439, Cr.PC applications can be filed directly before the High Court.
(iii) When the Sessions Court has already rejected an application for grant of bail under section 438/439 of the Cr.PC where one of the persons/accused is similarly placed it is not necessary that the similarly-placed person/accused should approach the Sessions Court for grant of bail; he can file an application before the High Court under section 438/439 of the Cr.PC.
18. The above circumstances are illustrative and not exhaustive. There could be other exceptional circumstances which would always depend upon the facts and circumstances of each case.
19. In view of the reasons and discussions made above it is held that normally a person/accused should exhaust his remedy under section 438 or 439 of the Cr.PC before the Sessions Judge before making an application before the High Court under section 438 or 439 of the Cr.PC. However in exceptional illustrated circumstances a person/accused can approach the High Court without exhausting his remedy before the Sessions Judge.
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20. With the above observations we are now dealing with the bail application in question.
21. The petitioner is in custody for committing offence under sections 387, 507, read with section 34 of the IPC, with the case crime number 56/2014 on the file of Serfanguri police station in Kokrajhar District.
22. It appears that grave allegations are made in the complaint. The petitioner has filed an application without exhausting his remedy of filing an application before the Sessions Court. For the reasons stated above it is just and necessary that the petitioner should exhaust his remedy before the Sessions Judge and thereafter approach the High Court. Accordingly the petition is disposed of.
14. A similar view has been expressed by the Delhi High Court and Bombay High Court in Phulmai Tamang and Mohanlal's cases supra respectively.
15. In a recent judgment of this Court in Imran's case supra, the co-ordinate Bench held as under:-
"7. Though Sessions Court and High Court have concurrent jurisdiction in entertaining and deciding a petition for bail, it is prudent for the petitioner to approach the Sessions Court at the first instance, unless there are exceptional circumstances to file such application directly before the High Court, bypassing the Sessions Court. In the above decision rendered by the Bombay High Court,
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR the said position has been reiterated. No exceptional reasons are made out so as to entertain the instant petition. If an adverse order is passed by the Sessions Court, it is always open for the petitioner to file a petition before this Court for the same relief. If the instant petition seeking anticipatory bail is entertained without there being any exceptional grounds made out, it will set a precedent and in every case, this Court has to deal with such petitions."
16. In the facts of the instant case on hand, despite having referred to the dismissal of the earlier bail application by the trial court and this Court and confirmed by the Apex Court as stated supra, the petitioner has neither pleaded nor proved or established exceptional or compelling circumstances as to why he is not in a position to approach the trial court or not be relegated to the trial court before approaching this Court by way of the present second successive bail petition; in other words, in the absence of any reasons whatsoever pleaded, proved or established from the pleadings and material on record, much less, exceptional or compelling reasons for not approaching the trial court, in the facts and circumstances of the instant case, I am of the view that the petitioner has not made out valid or sufficient ground to maintain the present petition before this Court without exhausting his
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR remedy of approaching the trial court, especially when the first bail application was undisputedly filed before the trial court which was rejected as stated supra. Under these circumstances, I am of the view that the present petition filed by the petitioner is not maintainable and is not entertainable at this stage without the petitioner exhausting his remedy by approaching the trial court.
The judgment of the Apex Court in Kanumuri's case supra, relied upon by the petitioner is not applicable to the facts of the instant case. In the said judgment, the Apex Court held as under:-
"14. The jurisdiction of the trial court as well as the High Court under Section 439 of the Code of Criminal Procedure, 1973 is concurrent and merely because the High Court was approached by the appellant without approaching the trial court would not mean that the High Court could not have considered the bail application of the appellant. As such, in our view, the High Court ought to have considered the bail application of the appellant on merits and decided the same. However, since the High Court has not considered the matter on merits and much water has flown since the passing of the order of the High Court, as now there are two medical reports of the appellant, one by the government hospital on the direction of the High Court and the other by Army Hospital on the directions of this Court, we deem it fit and proper to consider the bail application of the appellant on merits."
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17. As is clear from the aforesaid judgment, the same was rendered in the factual matrix emerging in the said case, inasmuch as apart from the fact that there was a delay in the matter, there were two medical reports of the accused / appellant which was taken out of by the Apex Court while coming to the conclusion that the petitioner / applicant need not be relegated to exhaust his remedy before the trial court, thereby indicating that the said judgment rendered in the facts of the said case cannot be made applicable to the facts of the instant case, particularly when no exceptional reasons / grounds have been pleaded or established by the petitioner.
18. Learned Senior counsel for the petitioner has placed reliance upon the judgment of the Apex Court in Manish Sisodia's case supra, the relevant portion of which reads as under:-
15. A preliminary objection has been raised on behalf of the learned ASG that the appellant cannot be permitted to file second set of SLPs to challenge the order of the High Court dated 21st May 2024 when the earlier SLPs arising out of the same order were disposed of. He submitted that the liberty granted by this Court vide order dated 4th June 2024 has to be construed as a liberty to apply to the trial court afresh. It is submitted that, only after the appellant approaches the trial court and in the event he
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR does not succeed before the trial court, thereafter he approaches the High Court and in the event he also does not succeed before the High Court, then only he would be entitled to approach this Court. He therefore submitted that the present appeals deserve to be rejected thereby relegating the appellant to approach the trial court afresh. To buttress his submission, Shri Raju relied on the judgment of this Court in the case of Kunhayammed v. State of Kerala.
XXXX
28. Before considering the submissions of the learned ASG with regard to maintainability of the present appeals on account of the second order of this Court, it will be apposite to refer to certain observations made by this Court in its first order, which read thus:
"26. However, we are also concerned about the prolonged period of incarceration suffered by the appellant - Manish Sisodia. In P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, the appellant therein was granted bail after being kept in custody for around 49 days [P. Chidambaram v. Central Bureau of Investigation, (2020) 13 SCC 337], relying on the Constitution Bench in Shri Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, and Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40, that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. Ultimately, the consideration has to be made on a case to case basis, on the facts. The primary object is to secure the presence of the accused to stand trial. The argument that the appellant therein was a flight risk or that there was a possibility of tampering with the evidence or influencing the witnesses, was rejected by the
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR Court. Again, in Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51, this Court referred to Surinder Singh Alias Shingara Singh v. State of Punjab, (2005) 7 SCC 387 and Kashmira Singh v. State of Punjab, (1977) 4 SCC 291, to emphasise that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. In Vijay Madanlal Choudhary (supra), this Court while highlighting the evil of economic offences like money laundering, and its adverse impact on the society and citizens, observed that arrest infringes the fundamental right to life. This Court referred to Section 19 of the PML Act, for the in- built safeguards to be adhered to by the authorised officers to ensure fairness, objectivity and accountability. [See also Pankaj Bansal v. Union of India, 2023 SCC OnLine SC 1244] Vijay Madanlal Choudhary (supra), also held that Section 436A of the Code can apply to offences under the PML Act, as it effectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused himself. In our opinion, Section 436A should not be construed as a mandate that an accused should not be granted bail under the PML Act till he has suffered incarceration for the specified period.
This Court, in Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427, held that while ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as tenacious as tenacious can be.
27. The appellant - Manish Sisodia has argued that given the number of witnesses, 294 in the prosecution filed by the CBI and 162 in the prosecution filed by the DoE, and the documents 31,000 pages and 25,000 pages respectively, the fact that the CBI has filed multiple charge sheets, the arguments of charge have not commenced. The trial court has allowed application of the accused for furnishing of additional documents, which order has been challenged by the prosecution under Section 482 of the Code before the High Court. It was stated at the Bar, on behalf of the prosecution that the said petition
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR under Section 482 will be withdrawn. It was also stated at the Bar, by the prosecution that the trial would be concluded within next six to eight months.
28. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years.
29. In view of the assurance given at the Bar on behalf of the prosecution that they shall conclude the trial by taking appropriate steps within next six to eight months, we give liberty to the appellant - Manish Sisodia to move a fresh application for bail in case of change in circumstances, or in case the trial is protracted and proceeds at a snail's pace in next three months. If any application for bail is filed in the above circumstances, the same would be considered by the trial court on merits without being influenced by the dismissal of the earlier bail application, including the present judgment.
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR Observations made above, re. : right to speedy trial, will, however, be taken into consideration. The appellant - Manish Sisodia may also file an application for interim bail in case of ill health and medical emergency due to illness of his wife. Such application would be also examined on its own merits."
29. A perusal of the aforesaid would reveal that this Court was concerned about the prolonged period of incarceration suffered by the appellant. After considering various earlier pronouncements, this Court emphasised that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. Relying on Vijay Madanlal Choudhary v. Union of India, this Court observed that Section 436A Cr. P.C. should not be construed as a mandate that an accused should not be granted bail under the PMLA till he has suffered incarceration for the specified period. This Court recorded the assurance given by the prosecution that they shall conclude the trial by taking appropriate steps within next 6- 8 months. This Court, after recording the said submissions, granted liberty to the appellant to move a fresh application for bail in case of change in circumstances or in case the trial was protracted and proceeded at a snail's pace in next three months. This Court observed that if any application was filed, the same would be considered by the trial court on merits without being influenced by the dismissal of the earlier bail applications including its own judgment. It further observed that the observations made regarding the right to speedy trial will be taken into consideration.
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30. Since the trial proceeded at a snail's pace in the period after three months of the first order of this Court, the appellant filed the second application for bail before the trial court. The same came to be rejected by the trial court on 30th April 2024. It can thus be seen that it took a period of almost three months for the trial court to decide the said application. By the time the appellant approached the High Court, a period of more than six months had elapsed from the date on which the first order of this Court was passed. The same also came to be rejected on 21st May 2024.
31. When the appellant approached this Court in the second round and when the second order was passed by this Court on 4th June 2024, a period of 7 months and 4 days had elapsed from the date of the first order of this Court. However, this Court took into consideration the statement of the learned Solicitor General that the investigation would be concluded and final complaint/charge-sheet would be filed expeditiously and at any rate on or before 3rd July 2024 and thereafter, the trial court would be free to proceed with the trial. It, after observing that "having regard to the fact that the period of 6-8 months fixed by this Court in its first order having not come to an end", disposed of the petitions with liberty to the appellant to revive his prayer afresh after filing of the final complaint/charge-sheet.
32. It could thus be seen that this Court had granted liberty to the appellant to revive his prayer after filing of the charge-sheet. Now, relegating the appellant to again approach the trial court and thereafter the High Court and
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR only thereafter this Court, in our view, would be making him play a game of "Snake and Ladder". The trial court and the High Court have already taken a view and in our view relegating the appellant again to the trial court and the High Court would be an empty formality. In a matter pertaining to the life and liberty of a citizen which is one of the most sacrosanct rights guaranteed by the Constitution, a citizen cannot be made to run from pillar to post.
33. A careful reading of the second order of this Court dated 4th June 2024 would show that this Court recorded that they did not propose to go into the arguments or dwell upon it in view of the liberty granted in the first order of this Court. Thereafter, this Court noticed the assurance of the learned Solicitor General that the investigation would be concluded and final complaint/charge-sheet would be filed at any rate on or before 3rd July 2024. This Court further observed in its second order that since the period of 6-8 months fixed by it in its first order had not come to an end, it was inclined to dispose of this petition with liberty to the appellant to revive his prayer. It will be a travesty of justice to construe that the carefully couched order preserving the right of the appellant to revive his prayer for grant of special leave against the High Court order, to mean that he should be relegated all the way down to the trial court. The memorable adage, that procedure is a hand maiden and not a mistress of justice rings loudly in our ears.
35. In our view, the liberty reserved by this Court vide its second order, to revive the request of the appellant will have to be construed as a liberty given by this Court to
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR revive his prayer afresh after filing of the final complaint/charge-sheet. Undisputedly, the present appeals have been filed after the final complaint/charge-sheet has been filed by the respondents. In that view of the matter, we are not inclined to entertain the preliminary objection and the same is rejected."
19. A perusal of the aforesaid judgment will also indicate that the same was rendered in the peculiar factual situation arising therein and by noticing that liberty had been given by the Apex Court itself in its earlier orders coupled with the facts and circumstances noticed by the Apex Court referred to supra. In fact, the said petition before the Apex Court arose out of the third bail application filed by the accused and there were earlier orders and directions passed / issued by the Apex Court including liberty to file a fresh bail application, cumulative effect of which was considered by the Apex Court to come to the conclusion that there was no necessity to relegate the petitioner therein to the trial court especially after long lapse of time, during which, the petitioner continued to remain in judicial custody. The said judgment based on specific facts and circumstances also would not be applicable to the facts of the present case, especially when the compelling circumstances, which prevented the petitioner from approaching
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR the trial court have neither been pleaded nor proved / established and as such, no reliance can be placed upon even on this judgment by the petitioner in support of his claim, which cannot be accepted.
20. Insofar as the judgment of the Apex Court in Arvind Kejriwal's case supra, the Apex Court held as under:-
"Whether the filing of a chargesheet is a change in circumstances warranting relegation to the trial court for grant of regular bail?
43. It is true that generally the Trial Court should consider the prayer seeking bail once the charge sheet is filed, since the material that an Investigating Authority may have been able to procure would undoubtedly facilitate that court to form a prima facie opinion with regard to (i) the gravity of offence;
(ii) the degree of involvement of the applicant; (iii) the background and vulnerability of the witnesses; (iv) the approximate timeline for conclusion of the trial based on the number of witnesses; and (v) the societal impact of granting or denying bail. However, there can be no straitjacket formula which enumerates that every case concerning the consideration of bail should depend upon the filing of a charge sheet. In fact, each case ought to be assessed on its own merits, recognizing that no one-size fits all formula exists for determining bail.
44. An under trial thus should, ordinarily, first approach the Trial Court for bail, as this process not only provides the accused an opportunity for initial relief but also allows the
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR High Court to serve as a secondary avenue if the Trial Court denies bail for inadequate reasons. This approach is beneficial for both the accused and the prosecution; if bail is granted without proper consideration, the prosecution too can seek corrective measures from the High Court.
45. However, superior courts should adhere to this procedural recourse from the outset. If an accused approaches the High Court directly without first seeking relief from the Trial Court, it is generally appropriate for the High Court to redirect them to the Trial Court at the threshold. Nevertheless, if there are significant delays following notice, it may not be prudent to relegate the matter to the Trial Court at a later stage. Bail being closely tied to personal liberty, such claims should be adjudicated promptly on their merits, rather than oscillating between courts on mere procedural technicalities.
46. This issue is however, more or less academic in the instant case as the High Court did not relegate the Appellant to the Trial Court at the preliminary stage. Since notice was issued and the parties were apparently heard on merits by the High Court, we do not deem it necessary at this stage to relegate the Appellant to the Trial Court even though filing of a charge sheet is a change in the circumstances."
21. In the concurring judgment by Hon'ble Mr.Justice Ujjal Bhuyan, His Lordship held as under:-
"I have gone through the draft judgment of my esteemed senior colleague Justice Surya Kant. I am in complete agreement with the conclusion and direction of his Lordship that the appellant should be released on bail. However, on the
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR necessity and timing of the arrest, I have a definite point of view. Therefore, I deem it appropriate to render a separate opinion on the point of necessity and timing of the arrest of the appellant while concurring with the opinion of Justice Surya Kant that the appellant should be released on bail.
35. If indeed the High Court thought of remanding the appellant to the forum of the Court of Special Judge, it could have done so at the threshold itself. After issuing notice, after hearing the parties at length and after reserving the judgment for about a week, the above order was passed by the High Court. Though couched in a language which appears to be in favour of the appellant, in practical terms it has only resulted in prolonging the incarceration of the appellant for a far more longer period impacting his personal liberty.
36. In somewhat similar circumstances, this Court in Kanumuri Raghurama Krishnam Raju v. State of A.P - (2021) 13 SCC 822, after observing that jurisdiction of the trial court as well as of the High Court under Section 439 Cr.
P.C. is concurrent, held that merely because the High Court was approached by the appellant without approaching the trial court would not mean that the High Court could not have considered the bail application of the appellant. In the facts of that case, this Court opined that the High Court ought to have considered the bail application of the appellant on merit and decided the same. However, having regard to the fact that much time had lapsed since passing of the order of the High Court and there were subsequent medical reports of the appellant, this Court did not relegate the appellant back to the High Court but considered the bail application of the appellant on merit herein itself. This Court held thus:
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14. The jurisdiction of the trial court as well as the High Court under Section 439 of the Criminal Procedure Code, 1973 is concurrent and merely because the High Court was approached by the appellant without approaching the trial court would not mean that the High Court could not have considered the bail application of the appellant. As such, in our view, the High Court ought to have considered the bail application of the appellant on merits and decided the same. However, since the High Court has not considered the matter on merits and much water has flown since the passing of the order of the High Court, as now there are two medical reports of the appellant, one by the government hospital on the direction of the High Court and the other by Army Hospital on the directions of this Court, we deem it fit and proper to consider the bail application of the appellant on merits.
37. Mr. Raju, learned Additional Solicitor General of India, while supporting the order of the High Court vehemently argued that the appellant has to first approach the trial court for bail though under Section 439 Cr. P.C. both the Special Court and the High Court have concurrent jurisdiction. No special privilege should be shown or granted to the appellant. I am afraid such a submission cannot be accepted. In this regard, I am in respectful agreement with the view taken by this Court in Kanumuri Raghurama Krishnam Raju. That apart, when the appellant has been granted bail under the more stringent provisions of PMLA, further detention of the appellant by the CBI in respect of the same predicate offence has become wholly untenable. In such circumstances, asking the appellant or relegating the appellant to approach the trial court, then to the High Court and then to this Court for a fresh round of bail proceedings in the CBI case after he had already traversed the same route in the PMLA case would be nothing but a case of procedure triumphing the cause of justice. In this connection, it would be apt to refer to the observations of this Court in the
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR case of Manish Sisodia v. CBI, Criminal Appeal No. 3296 of 2024, decided on 09.08.2024:
32. It could thus be seen that this Court had granted liberty to the appellant to revive his prayer after filing of the chargesheet. Now, relegating the appellant to again approach the trial court and thereafter the High Court and only thereafter this Court, in our view, would be making him play a game of "Snake and Ladder". The trial court and the High Court have already taken a view and in our view relegating the appellant again to the trial court and the High Court would be an empty formality. In a matter pertaining to the life and liberty of a citizen which is one of the most sacrosanct rights guaranteed by the Constitution, a citizen cannot be made to run from pillar to post.
37.1. Manish Sisodia is a co-accused in the same CBI case and the ED case. His second bail application was rejected by the trial court on 30.04.2024 after taking about three months' time to decide the same. When Sisodia moved the High Court for bail, the same also came to be rejected on 21.05.2024. It was thereafter that Manish Sisodia approached this Court in the second round. In the hearing which took place on 04.06.2024, the learned Solicitor General for India made a statement before the Court that investigation would be concluded and final complaint as well as chargesheet would be filed in both the ED and CBI cases on or before 03.07.2024. On the basis of the above statement of the learned Solicitor General, this Court disposed of the two criminal appeals of Shri Manish Sisodia with liberty to him to revive his prayer afresh after filing of final complaint and chargesheet. When Shri Sisodia approached this Court for bail after the complaint and the chargesheet were filed, Mr. Raju learned Additional Solicitor General of India appearing for the ED as well as the CBI contended that Shri Sisodia should again approach the trial court for regular bail as in the interregnum, the complaint and the chargesheet were filed.
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR Such submission of Mr. Raju was rejected by this Court. Adverting to the earlier order of this Court dated 04.05.2024, this Court in Manish Sisodia observed as under:
33. ........It will be a travesty of justice to construe that the carefully couched order preserving the right of the appellant to revive his prayer for grant of special leave against the High Court order, to mean that he should be relegated all the way down to the trial court. The memorable adage, that procedure is a hand maiden and not a mistress of justice rings loudly in our ears.
22. As can be seen from the aforesaid judgment, earlier judgments of the Apex Court in Kanumuri's and Manish Sisodia's cases have been followed and applied to the facts of the said cases stated supra, the facts of the present case on hand are completely different and the said judgments cannot be applied to the facts of the instant case. It is also pertinent to note that even the aforesaid judgments do not obviate or dispense with the requirement of approaching the trial court and exhausting the remedy in the first instance before approaching this Court and in order to do so, it was incumbent upon the petitioner to make out valid reasons / exceptional circumstances as to why he did not approach the trial court earlier. Under these circumstances, I am of the view that the various contentions urged by the petitioner cannot be accepted.
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NC: 2025:KHC:25042 CRL.P No. 3292 of 2025 HC-KAR
23. In my considered opinion, having regard to the material on record and in the facts and circumstances of the case, it would be just and appropriate to relegate the petitioner to expedite his remedy by approaching the trial court and reserving liberty in favour of the petitioner thereafter to approach this Court in accordance with law.
24. In the result, I pass the following:-
ORDER
(i) Petition is hereby disposed of by relegating the petitioner to seek appropriate remedy by filing an bail application before the Sessions Court.
(ii) The trial court is directed to consider the bail application to be filed by the petitioner and dispose of the same within a period of ten days from the time the petitioner files such a bail application.
(iii) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE Srl.