Allahabad High Court
Vinod Kumar vs State Of U.P. And Another on 6 December, 2019
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53729 of 2019 Applicant :- Vinod Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Virendra Singh Tomar,Rajiv Sisodia Counsel for Opposite Party :- G.A. Hon'ble Yashwant Varma, J.
Almost four decades post the deletion of Section 438 Cr.P.C. insofar as it applied to the State of Uttar Pradesh, the Legislature reintroduced that provision on 6 June 2019. The legislative essay was a reaffirmation of the constitutional guarantee of personal liberty accorded to all citizens and to provide a salutory safeguard against the ignominy of arrest and deprivation of liberty. This nascent and resurrected jurisdiction has, however, in a short span of time raised questions which merit an authoritative pronouncement. It is in that backdrop that the Court takes up the instant petition.
This petition along with other applications for grant of anticipatory bail were taken up on 4 December 2019. Upon preliminary submissions being advanced, the Court on that date framed the following questions which appeared to principally arise:-
"The present application under Section 438 Cr.P.C. for anticipatory bail has been moved after rejection of a similar application by the Sessions Judge. The issue which would consequently arise would be whether the application would be maintainable since as per the provision, an order once passed shall not be construed as an interlocutory order for the purposes of the Code.
Learned counsels have also referred to the views expressed by two learned Judges in Criminal Misc. Bail Application No. 44895 of 2019 [Neeraj Yadav And Another Vs. State of U.P. And 2 Others] and Bail Application No. 6478 of 2019 [Harendra Singh @ Harendra Bahadur Vs. The State of U.P.]. According to learned counsels since the statute confers concurrent jurisdiction, it would be incorrect for the Court to take the view that the applicant must first exhaust the remedy before the Sessions Court before applying to the High Court. The perceived inconsistency is addressed on the basis of the views expressed on the two applications aforementioned. The third issue which would arise for consideration would be that if the Court were to accept the view expressed in Harendra Singh what would be the special circumstances in which the High Court could be moved first without the applicant being asked to invoke the jurisdiction of the Sessions Judge.
As requested by learned counsels appearing in similar matters as well as Sri Sisodia in this application, include in the list of fresh cases of 06 December 2019."
In order to facilitate learned counsels to address further submissions, the application and other matters on that date were placed for disposal today. All members of the Bar were requested to address submissions bearing in mind the importance of the questions which stood raised and the impact which they would have on matters likely to come before the Court in future. The Court for the purposes of convenience, shall firstly proceed to note and dispose of the questions which arise and thereafter deal with the merits of the instant application separately.
The issues themselves arise in the backdrop of the reintroduction of Section 438 Cr.P.C. by virtue of U.P. Act No. 4 of 2019 w.e.f. 6 June 2019. It would be apposite to recollect that Section 438 Cr.P.C. stood as part of the Code applicable to the State till it was deleted with retrospective effect from 28 November 1975 by U.P. Act No. 16 of 1976. The provision as it originally existed on the statute book was as follows:
"438. Direction for grant of bail to person apprehending arrest.-(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2)When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including--
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1)."
The said provision as re-enacted in 2019 reads thus:-
"438. Direction for grant bail to person apprehending arrest.--(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely--
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested;
either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.
(2) Where the High Court or, as the case may be, the Court of Session, considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1), the Court shall indicate therein the date, on which the application for grant of anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit, arid if the Court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely--
(i) that the applicant shall make himself available for interrogation by a police officer as and when required;
(ii) that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer,
(iii) that the applicant shall not leave India without the previous permission of the Court; and
(iv) such other conditions as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section.
Explanation.--The final order made on an application for direction under sub-section (1); shall not be construed as an interlocutory order for the purpose of this Code.
(3) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(4) On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order.
(5) The High Court or the Court of Session, as the case may be, shall finally dispose of an application for grant of anticipatory bail under sub-section (1), within thirty days of the date of such application;
(6) Provisions of this section shall not be applicable,--
(a) to the offences arising out of,--
(i) the Unlawful Activities (Prevention) Act, 1967;
(ii) the Narcotic Drugs and Psychotropic Substances Act, 1985;
(iii) the Official Secret Act, 1923;
(iv) the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.
(b) in the offences, in which death sentence can be awarded.
(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session."
[Vide U.P. Act No. 4 of 2019, S. 2 (Received the assent of the President on 1-6-2019 and published in the U.P. Gazette, Extra., Part 1, Section (Ka), dated 6-6-2019).]"
It would also be pertinent to extract the SOR of the amending Act by virtue of which the provisions was reintroduced. The SOR reads thus:-
STATEMENT OF OBJECTS AND REASONS Section 438 of the Code of Criminal Procedure 1973, regarding the provision of anticipatory bail, was omitted by the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act no. 16 of 1976). There is continuous demand for its revival. Writ petitions have also been filed before the Hon'ble Courts for its revival in Uttar Pradesh. The State Law Commission has, in its third report in 2009, also recommended for reviving the provisions of the said section. With a view to considering the revival of the provisions of the said section, a committee has been constituted under tie chairmanship of the Principal Secretary to the Government of Uttar Pradesh in Home Department, consisting of the Special Secretary of Judicial Department, Special Secretary of the Legislative. Department, Director General of Prosecution and Additional Director General of Police (Crime), as the members thereof. The said committee has recommended that the provisions of the said section should be revived with certain modifications. After considering the recommendation of the said Committee, it has been decided to amend the Code of Criminal Procedure, 1973 in its application to Uttar Pradesh to revive the provisions of section 438 thereof with certain modifications. The Code of Criminal Procedure (Uttar Pradesh Amendment) Bill, 2018 is introduced accordingly.
The issues framed principally arose in the context of the newly framed Section 438 in purported implementation of the report of the State Law Commission tabled in 2009. For the purposes of rendering clarity, it would be appropriate to set forth the questions which principally fall for determination:-
A. The nature of the concurrent jurisdiction conferred by Section 438 Cr.P.C.
B. Whether parties should be commanded to necessarily approach the Sessions Court first before invoking the jurisdiction of this Court under Section 438 Cr.PC C. In what circumstances can the High Court be approached directly under Section 438 Cr.P.C.
D. Exceptional or Special circumstances.
E. The perceived conflict between the decisions rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P.1 and Neeraj Yadav And Another Vs. State of U.P.2 F. Impact of the Explanation to Section 438(2) Cr.P.C.
G. The period for which anticipatory bail should operate.
Leading submissions on behalf of the applicants, Sri Imran Ullah firstly referred the Court to the 203rd Report of the Law Commission of India submitted in December 2007. According to Sri Imran Ullah it is the recommendations contained in this report that appear to have guided the Legislature in framing Section 438 as it stands introduced in its application to the State of U.P. Taking the Court through the note on concurrent jurisdiction Sri Imran Ullah drew the attention of the Court to paragraph 6.4.1 of the report which reads thus:-
"6.4.1 One of the objections raised against the amended section has been that if the applicant seeking anticipatory bail is required to be compulsorily present in the Court in terms of new sub-section (1B), he is most likely to be arrested from the Court precincts in the event of rejection of his bail. Such an arrest of the applicant will deprive him of his right otherwise available to him to move the alternative forum provided in Section 438 of the Code. Concurrent jurisdiction of the Court of Session and the High Court under Section 438 has generated much litigation. The Code has not prescribed any specific order in which the two alternative forums are to be approached. It is left to the option of the applicant to move either the Court of Session or the High Court for anticipatory bail one after another or in reverse order. There is conflict of opinion amongst various High Courts as to whether the Court of Session should originally be approached in the first instance or the High Court can be straightaway approached for grant of anticipatory bail without first taking recourse to the Court of Session. It may be noted that both Court of Session and the High Court exercised original jurisdiction under Section 438. However, when the High Court is moved after the anticipatory bail application has been dismissed by the Court of Session, the petition for anticipatory bail in the High Court is required to be accompanied with a copy the Session Court's order from which reason for dismissal of anticipatory bail application can be gathered. In such a case, the High Court essentially exercises revisionary powers over the order of the Court of first instance. i.e. Session Court though purporting to be exercising original jurisdiction under Section 438. On the other hand, it has been held in some cases that where the applicant moved High Court for anticipatory bail which was rejected then the Court of Session should not grant anticipatory bail to the applicant on the same facts and material as otherwise it would be an act of judicial impropriety. There are also cases where similar view has been taken in reverse order in respect of rejection of application for anticipatory bail by Court of Session. Accordingly, it has been held in some cases that if an application for anticipatory bail is rejected by the Court of Session, then similar application on the same fact would not lie in the High Court unless there is some new material or facts. There are cases also where contrary view has been taken whereby no such fetter is admitted on the powers of the High Court."
After noticing the judgments rendered by different High Courts of the country it proceeded to observe as follows:-
"6.4.19 There are a lot many more cases on the above aspects. Suffice it to say that the section has generated much litigation that could have been avoided. There are certain other provisions in the Code which have vested concurrent jurisdiction in the High Court and the Court of Session. For example, both the High Court and the Court of Session have concurrent jurisdiction of revision under Section 397. However, under Section 397 if a person approaches either of these Court, he cannot again agitate that matter by way of revision in the other Court. Whereas there seems to be justifiable reason for conferring concurrent jurisdiction on the High Court and the Court of Session, yet the person seeking anticipatory bail should have been given an option on the lines of Section 397(3). Accordingly, if he approaches either of these two Courts, he should not be allowed again to seek the same relief by way of a substantive application under Section 438 in the other Court. It may be noted as observed by Karnataka High Court in K.C. Iyya and etc. Vs State of Karnataka, 1985 Cri. L.J. 214 that in the matter of bail, either anticipatory as regular, the voice of the Court of Session is not final but is subject to revisional or appellate jurisdiction of the High Court and the Supreme Court. Also in these matters of bail, either anticipatory or regular, the Court of Session is given as wide a power of discretion as vests in the High Court. In this connection, the following observations of Chandrachud, C.J. in Gurbaksh Singh Sibbia etc. Vs The State of Punjab, AIR 1980 SC 1632 may be noted.
"There is no risk involved in entrusting wide discretion to the Court of Session and the High Court in granting anticipatory bail because firstly, these are higher Courts manned by experienced persons; secondly, their orders are not final but are open to appellate or revision scrutiny."
6.4.20 It may be noted in this regard that Inspectors General of Police Conference, 1981, inter alia suggested that Section 438 be amended so as to take away the powers to grant anticipatory bail from the Session Court and vest it only in the High Courts. A Group of officers, constituted pursuant to the decision taken at the meeting of Secretaries held on 2nd July, 1982, too concurred with it when it observed that "as sometimes, the Courts take a very liberal view in granting anticipatory bail to criminals, it was considered that such powers should be taken from the Court of Session and vest only in the High Court even though it will make difficult for the poor persons to avail of the provisions of anticipatory bail. A Parliamentary Bill being No. 56 of 1988 was introduced in the Lok Sabha on 13th may, 1988, clause 49 of which related to amendment of Section 438, providing, inter alia, omission of the words or the Court of Session" from sub-section (1) and (2) of that section. However, these proposed amendments were ultimately not carried out and both the High Court and the Court of Session continued to have concurrent jurisdiction under Section 438 in the matter of anticipatory bail and in our opinion, rightly so. There are certainly distinct advantages of vesting concurrent jurisdiction in the two judicial forums and giving an option to an applicant to choose one of two, depending upon his convenience or otherwise. These advantages have been referred to in some of the decided cases. (See Shivasubramanyam Vs State of Karnataka and another, 2002 Cri.L.J. 1998; Y. Chendrasekhara Rao Vs Y.V. Kamala Kumari, 1993 Cri.L.J. 3508 (A.P.); Rameshchandra Kashiram Vora Vs State of Gujarat, 1988 Cri.L.J.210 (Guj.). However, it is not readily discernible as to why same relief or facility has been made available to same persons at the hand of two different judicial forums one after another in exercise of their respective original jurisdiction when efficacious remedy is otherwise available against the order of the Court which may have been chosen by an applicant for relief in the first instance. One fails to understand as to why a provision on the lines of Section 397(3) has not been made in Section 438 whereby once the applicant has availed his option to choose one of the two alternative forums, his recourse to the other forum is foreclosed, if he fails to get the desired relief from the forum he has earlier chosen. Thus, if a person moves the Court of Session for anticipatory bail and fails to get it, then why he should again be allowed to file another substantive application to anticipatory bail to High Court instead of revision, or, as the case may be, appeal against the order ofrejection of the application by the Session Court. Again, if the person has moved the High court in the first instance, does it not look apparently anomalous for the same person to move the lower Court, namely, the Court of Session for the same relief on the same facts that has been denied to him by the High Court? Theoretically, it is permissible. But, as a matter of propriety and policy, should that person not be made to move the higher judicial forum instead of a lower one in such cases. It is inherent in the scheme of things that when two alternative forums are provided in law for seeking directions for anticipatory bail, one lower and another higher, then the lower should be first resorted to as a matter of principle except in exceptional cases in which event the applicant should be deprived of his option to move the lower forum afresh on the same facts and material. Any different approach may lead to anomalous results where the relief sought at the hands of the High Court having been denied, can again be sought from the lower court without there being any change in the circumstances in which the relief has been denied by the High Court. Theoretically, it may be feasible but in practice it will not be. Such a scenario might not have been in the contemplation of the framers of the law. If that be so, then we fail to understand as to what distinct advantage is intended to be conferred on persons seeking anticipatory bail by allowing them to move the two alternative forums one after another in their original jurisdiction for the same relief on the same facts. One reason for this could be that an order rejecting an application bail is interlocutory [See Zubair Ahmad Bhat Vs State of Jammu and Kashmir, 1990 Cri.L.J. 103 (J&K), Joginder Singh Vs State of Himachal Pradesh, ILR (1975) HP 181. A different view was, however, expressed in Mohan Lal and other Vs Prem Chand and others, AIR 1980 HP 36 (FB)] wherein it was held that Sessions Judge's order refusing anticipatory bail was not an interlocutory order. The power of revision conferred by sub-section (1) of Section 397 is not exercisable in relation to any interlocutory order in any appeal, inquiry, trial or other proceeding. (SeeSection 397(2) of the Code of Criminal Procedure, 1973). The conflicting views of High Courts in various cases in this regard have led to varied judicial practices whereby recourse is sometime taken to the powers of revision of the High Courts against orders of Courts of Session declining anticipatory bails and in other cases inherent powers of the High Courts are invoked in such matters. The High Courts exercise their inherent powers to redress the grievance of the aggrieved person or to prevent the use of the process of the Court and to secure the ends of justice or to prevent miscarriage of justice or illegal exercise of jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 or underArticle 227 in exceptional cases. [See Shyam M. Sachdev Vs State and another, 1991 Cri.L.J. 300 (Delhi)]; Ram Prakash Vs State of H.P. 1979 Cri.L.J. 750 (HP); Bhola and others Vs State 1979 Cri.L.J. 718 (Allahabad); Kamal Krishna De Vs State 1977 Cri.L.J. 1492 (Calcutta)]. The Supreme Court in a number of cases has laid down the scope and ambit of the powers of the courts underSection 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone if exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute...The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. (See Inder Mohan Goswami and another Vs State of Uttaranchal and others, 207(12) SCALE 15 at 25).Section 482 is not controlled by Section 397(2) or 397(3). The inherent powers of the High Court are not subjected to the bar contained in Section 397 as the powers of the High Court under these two Sections are distinct, different and mutually exclusive and ought not to be equated. Nothing in the Code nor even the bar under Section 397 affect the amplitude of the High Court's inherent power if glaring injustice stares the Court in the face [See Govind Das Biyani and others Vs Badrinarayan Rathi (1995) 4 Crimes 755 (M.P.); Smt. Chander Mohini Khuller Vs State of West Bengal and another, 1995(4) Crimes 289 (Cal.); Rajeev Bhatia Vs Abdulla Mohmed Gani and another, 1992 Cri.L.J. 2092 (Bom.); Binod Sitha Vs Suna Devi 1986(1) Crimes 208 (Ori); Raj Kapoor and others Vs State (Delhi Administration)and others, AIR 1980 SC 258); Malam Singh Vs State of Rajasthan, 1977 Cri.L.J. 730 (Raj.)]. Thus, where an application for anticipatory bail has been rejected by the Court of Session and no revision lies against it for the order of rejection being an interlocutory order, then the remedy of the applicant will be to invoke the inherent powers of the High Court under Section 482 or the constitutional powers under Article 227 of the Constitution of India, in a case a provision is inserted inSection 438 on the lines of Section 397(3). It may be seen that there is lack of uniformity in judicial practices in these matters that needs to be remedied. One way of doing this is to extend the benefit of revision by suitably amending the law. It may be noted that the amended provision envisages passing of ad interim order on an application for anticipatory bail application in the first instance, followed by a final order after hearing the Public Prosecutor. Besides, such an application need not necessarily be filed in any pending case as registration of a FIR is not considered necessary. To add to it, the applicant may not be ultimately put up for trial if the investigation of the case does not reveal any materialagainst the applicant. In such a scenario, the final order on the application may not be in the nature of interlocutory as the case may stand disposed of finally. Besides, the use of legal fiction is not unknown to Law and it is quite often applied to meet a given exigency or to secure certain ends. It is thus legally feasible to expressly provide in the Law that final orders on an anticipatory bail application may not be construed as interlocutory for the purposes of the Code. And, we recommend accordingly."
In conclusion the Law Commission summarised the position in paragraph 6.4.21 as under:-
"6.4.21 Accordingly, the position that will so emerge will proceed on the following lines, viz.,
(i) Both the High Court and the Court of Session will have concurrent jurisdiction to deal with application for directions under Section 438 and it will be open to a person to move either of these two Courts at his option;
(ii) Once that option is exercised and that person decides to move one of these Courts, then the person will not have any further option to move the other Court;
(iii) Where the person chooses to move the Court of Session in the first instance, a revision will lie in the High Court against the order of Court of Session on the application for issue of directions under Section 438;
(iv) Where the person chooses to straightaway move the High Court in the first instance, subject to Court's satisfaction of the special or exceptional circumstances justifying such move, the person will stand deprived of the aforesaid remedy of revision. In such a case the person if aggrieved of the High Court's order on his application for direction under Section 438 may have to invoke the extraordinary constitutional powers of the Supreme Court by seeking special leave to appeal in the Supreme Court.
6.4.22 We are, therefore, of considered view that Section 438 should be amended so as to contain a provision on the lines of Section 397(3). All other remedies that are presently provided in the Code or otherwise against the final order on an application for anticipatory bail, will, however, continue to be available. This will also take away much of the sting of lawyers' objections against the amendments, particularly those contained in sub-section (1B), that the applicants have been so denied the right to move the other forum against the rejection of his application as he could be arrested being present in the Court, though we have recommended omission of that sub-section, albeit, on different grounds."
It ultimately made the following recommendations:-
"7.1 We recommend that:
(I) The proviso to sub-section (1) of Section 438 shall be omitted.
(ii) Sub-section (1B) shall be omitted.
(iii) A new sub-section on the lines of Section 397(3) should be inserted.
(iv) An Explanation should be inserted clarifying that a final order on an application seeking direction under the section shall not be construed as an interlocutory order for the purposes of the Code."
Sri Imran Ullah then drew the attention of the Court to the Report submitted by the U.P. State Law Commission on 28 July 2009. The State Law Commission while dealing with the imperative need of reintroduction of the provisions for anticipatory bail amongst other factors also noticed the large number of cases traveling to the High Court under Section 482 Cr.P.C. as well as 226 of the Constitution in light of the hightened perception of arrest and undue harassment.
Dealing with the question of concurrent jurisdiction, the State Law Commission framed its opinion in the following terms:-
"8.20 As far as jurisdiction is concerned, as stated earlier, the Commission is of the opinion that:
(i) Both the High Court and the Court of Session will have concurrent jurisdiction to deal with application for directions under Section 438 and it will be open to a person to move either of these two Courts at his option:
(ii) Once that option is exercised and that person decides to move one of these Courts, then the person will not have any further option to move the other Court;
(iii) Where the person chooses to move the Court of Session in the first instance, he may move to the High Court against the order of Court of Session on the application for issue of directions under Section 438;
(iv) Where the person chooses to straightaway move the High Court in the first instance, in such a case the person if aggrieved of the High Court's order on his application for direction under Section 438 may have to invoke the extraordinary constitutional powers of the Supreme Court by seeking special leave to appeal in the Supreme Court."
It ultimately and in its recommendations proposed the text of Section 438 to be in the following terms :-
"438. Direction for grant of bail to person apprehending arrest-
(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply either to the Court of Session or the High Court for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely,-(2)
(i) The nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice, repeat the offence and tamper the witnesses; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested;
either reject the application forthwith or issue an order for the grant of anticipatory bail:
Provided that where an application is moved, the Court shall forthwith cause a notice being not less than forty eight hours notice, together with a copy of such application to be served on the Public Prosecutor with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be heard by the Court.
(2) When the Court of Session or the High Court makes a direction under sub-section (1), it may include such directions in the light of the facts of the particular case, as it may think fit, including:-
(i) a condition that the person shall make himself available for interrogation by a Police Officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) a condition that the person shall not leave India without the previous permission of the Court;
(v) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer-in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that persons, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).)"
9.2 If an application under this section has been made by any person either to the Court of Session or the High Court, no further application by the same person shall be entertained by either of them.
We recommend accordingly."
According to Sri Imran Ullah, the language employed by Section 438 as introduced clearly establishes the conferment of concurrent jurisdiction on the High Court as well as the Court of Sessions. In view thereof it was his submission that no fetter or restraint can consequently be placed on the exercise of choice by an individual. Sri Imran Ullah would submit that the provision grants complete freedom to the individual to choose to approach either the High Court or the Sessions Court subject to percieved expediencies. In view thereof, it was submitted that no rule or dictum can possibly be formulated requiring individuals to first exhaust the remedy as provided before the Court of Sessions and only thereafter to approach the High Court. Taking the Court both through the recommendations of the Law Commission of India as well as the State Law Commission it was submitted that though both had recommended the introduction of a provision to the effect that once upon exercise of choice by a person to move one of the concurrent jurisdictions, he should not have the option to move the other, it was submitted that the aforesaid recommendation was ultimately not accepted by the Legislature. This submission was addressed in light of the provisions made in sub-section (7) which provides that in case the High Court is moved by an application for grant of anticipatory bail, then that individual cannot thereafter invoke the jurisdiction of the Court of Sessions. Sri Imran Ullah highlighted the fact that while a restriction is so placed in case the High Court is moved first, no corresponding prohibition has been engrafted to deal with a situation where the Court of Sessions may have been moved initially and the applicant failing to obtain redress. Both in light of the language employed in sub-section (7) as well as the recommendations framed by the Law Commissions which were not accepted, it was vehemently contended that it would be wholly incorrect for the Court to take the view that once an application for anticipatory bail comes to be rejected by the Court of Sessions, that applicant would stand precluded from invoking the jurisdiction of this Court as independently conferred by Section 438.
Dealing then with the impact of the Explanation appended to sub-section (2), Sri Khan contended that the Explanation appears to be in tune with the recommendations framed by the Law Commission of India which had opined that a remedy of revision may be provisioned for in case an applicant fail to obtain relief before the Court of Sessions. According to the learned counsel, it is to overcome the hurdle on orders passed on bail applications being construed as interlocutory in character alone which appears to have guided the framing of the Explanation. It was further submitted that while an avenue to assail an order of the Court of Sessions may have been created by virtue of the Explanation, that could not be construed as barring the jurisdiction of the Court otherwise vested by Section 438. Sri Khan then referred the Court to the decision rendered by a Full Bench of the Himanchal High Court which had dealt with an identical controversy albeit in the context of anticipatory bail and a revision under Section 397 of the Code. The Full Bench of the Himanchal High Court in Mohan Lal and others etc. v. Prem Chand and others etc3 held thus:-
" 10. S. 438 of the new Code makes a specific provision, unlike the old Code, for anticipatory bail. The relevant part of this Section reads thus:-
"438 (1). When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.................."
It is obvious that the High Court as well as the Court of Session have been given concurrent jurisdiction to grant anticipatory bail.
11. A bare reading of the Section shows that no restriction, unlike Ss. 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 wherever 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.
12. A Division Bench of this Court in Joginder Singh v. State of Himachal Pradesh (ILR (1975) Him Pra 181) held that though a person is at liberty to apply for anticipatory bail to the High Court straightway he could not approach the High Court if his application had been rejected by the Sessions Judge. The reason for coming to this conclusion was that the order refusing anticipatory bail being interlocutory in character could not be revised because of the bar placed by Sub-Sec. (2) of S. 397 of the new Code. This judgment is by D. B. Lall and Chet Ram Thakur, JJ. But in Vijay Nand v. State of Himachal Pradesh (ILR (1975) Him Pra 556) D. B. Lall, J., held that an order of the High Court granting anticipatory bail will be an order in the exercise of jurisdiction conferred by S. 439, and so the bar of Sub-Sec. (2) of S. 399 did not apply. It was observed that the ratio of Joginder Singh (supra) would not apply since the matter was being decided under S. 439.
13. We have given our earnest consideration the reason given in Joginder Singh's case. We are afraid we cannot agree with that view. When a person makes an application for anticipatory bail in the High Court after a similar application of his has been rejected by the Sessions Judge, he does not invoke the revisional jurisdiction of the High Court but applies under S. 438. Assuming that revisional jurisdiction is invoked, we are not prepared to hold that Sessions Judge's order refusing anticipatory bail is an interlocutory order. "
It ultimately recorded its conclusion as follows:-
"15. Our answers to the questions referred to the Full Bench are that persons can apply for revision or anticipatory bail to the High Court direct without first invoking the jurisdiction of the Sessions Judge."
Learned counsel then referred the Court to a judgment rendered by a learned Judge of this very Court in Jagdish Kumar Vs. District Judge, Budaun and Others4 where the question which arose for consideration was the ambit of the concurrent jurisdiction conferred upon the High Court and the District Court by Section 24 of the Civil Procedure Code. Sri Imran Ullah referred the Court specifically to the following paragraphs of that decision:
"21. The jurisdiction conferred under Section 24 of the Code is concurrent does not conceive of any scope of doubt. But whether the concurrent jurisdiction means that both the jurisdiction can be availed together or one after the other. The concurrence means both the courts having jurisdiction, the parties are free to approach one or the other. Whenever concurrent jurisdiction has been conferred on the High Court and the District Court, it is provided that if one of the forum is approached, the party would be precluded from approaching the other forum. Inasmuch as in the West Bengal amendment of Section 115 of the Code by which Section 115A has been, inserted. Under the said provisions both High Court and District Court have been empowered to entertain an application under Section 115 of the Code. Under sub-sections (3) and (4) thereof it has been provided that if either of the court is approached, no further revision shall be entertained between the same parties either by the High Court or the District Court as the case may be. Similar provision has also been incorporated in Section 397 of the Cr.P.C. where in sub-section (3) similar exclusion of jurisdiction by the High Court or Sessions Court having concurrent jurisdiction has been provided. In the absence of specific prohibition or exclusion of jurisdiction, Section 24 of the Code cannot be interpreted to mean that the jurisdiction of the one court is to the exclusion of the other. But a situation may arise where the High Court having been unsuccessfully approached, a party may approach to the District Court thereafter. If such a situation is permitted, it would work out a judicial anarchy. After having unsuccessful before the District Court, a party may approach the High Court. Such position is in conformity with the system of judicial hierarchy. If the party approaches the High Court then it cannot come back to the District Court. Such an interpretation would not be in conformity with the judicial system of hierarchy.
.......
24.Thus the outcome of the above discussion indicates that when an application for transfer before the District Court fails, the party applying may approach the concurrent jurisdiction of the High Court under the same provision but the party opposing though may apply for retransfer before the District Judge but cannot challenge the said order under Section 115 of the Code though, however, on the principle on which Article 227 of the Constitution can be exercised he may invoke the power of superintendence conferred upon the High Court by the Constitution under Article 227 of the Constitution thereof. But if the party approaches the concurrent jurisdiction of the High Court straightaway then the applicant and Opposite Party both may approach the Supreme Court under Section 25 of the Code, if aggrieved by the order of the High Court. But once the High Court passes an order under Section 24 on an application of an unsuccessful applicant before the District Judge, the order of the District Judge stands overruled by implication on passing of the order by the High Court. As such in the facts and circumstances of the present case, the application under Section 24 of the Code before this Court is maintainable."
Sri Dayashankar Mishra, learned Senior Counsel placed his submissions in the backdrop of the decision of the Constitution Bench in Gurbaksh Singh Sibbia Vs. The State of Punjab5 as also on a judgment rendered by a Division Bench of the High Court of Uttarakhand in Mubarik & another v. State of Uttarakhand & others6. According to Sri Mishra, the provisions made in Section 438 are an extension of the guarantee of personal liberty as accorded to all citizens by Article 21 of the Constitution. Sri Mishra contended that any restraint on the right of an individual to approach the High Court for grant of anticipatory bail or being relegated to the Court of Sessions as a matter of rule before being permitted to approach this Court would be in clear violation of the constitutional guarantee enshrined in Article 21. Sri Mishra submitted that where issues of personal liberty stand raised, the statutory discretion as conferred can neither be placed in shackles nor can the exercise of choice by the individual be fettered by any restraint. Turning then to the decision rendered by the High Court of Uttarakhand in Mubarik, it was submitted that the said authority applies to the questions raised on all fours since that High Court had clearly recognised the unfettered right of the accused to choose the forum and that the said right could not be restricted by construing the provisions of Section 438 narrowly. Sri Mishra also referred the Court to the provisions made in Section 397(3) to submit that wherever the Legislature had though fit to bar the jurisdiction of a particular Court once a remedy had been availed either before the lower court or the superior court, a specific provision had been made and put in place in the statute itself. It becomes relevant to note that Section 397(3) provides that where any person has moved the High Court or the Court of Sessions by way of a revision, he stands debarred from moving any further application before "the other of them". Sri Mishra submitted that the provisions engrafted in Section 397(3) stand in clear distinction to the provisions made ins Section 438(7) where the fetter stands placed only in case the High Court has been moved initially. According to Sri Mishra, the bar to the jurisdiction of a Court cannot be presumed or assumed unless a specific provisions in that respect comes to be introduced by the Legislature. Insofar as Section 438 is concerned, Sri Mishra submitted that in the absence of any provision akin to Section 397(3) having been made therein, it could not be said that the jurisdiction of the Court stands barred once an application for anticipatory bail has come to be rejected by the Sessions Court.
Sri Vimlendu Tripathi, learned counsel addressed submissions on similar lines and contended that the rights of an individual where issues of personal liberty are raised cannot be curtailed by way of statutory interpretation. It was also submitted that any view taken to the contrary would clearly fall foul of the dictum laid down by the Full Bench of this Court in Onkar Nath Agrawal And Others Vs. State7. It was submitted further that since the Full Bench had clearly ruled that a bail application under Section 438 may be moved in the High Court without the applicant being forced to take recourse to the Court of Sessions, the decision rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P.8 was per incuriam.
Sri Saghir Ahmad learned Senior Counsel adopting and elaborating upon the submissions noted above, drew the attention of the Court to a decision rendered by a Full Bench of the Calcutta High Court in Diptendu Nayek Vs. State of West Bengal9. According to learned Senior Counsel the aforesaid authority had in unequivocal term answered the questions as framed by the Court by holding that where a party unsuccessfully moved the Court of Sessions initially he would not stand debarred from invoking the powers of this Court as independently conferred by Section 438. Learned Senior Counsel referred to the following principles as enunciated in that decision.
"22. Broadly speaking, Section 438 of the Code of Criminal Procedure consists of two parts. The first part sets out the conditions under which a person can make an application for anticipatory bail. The second part confers jurisdiction on the High Court or the Court of Session. Thus the second part can be viewed as strictly jurisdictional; the High Court and the Court of Session have concurrent jurisdiction. Once a Court is invested with jurisdiction, that jurisdiction subsists all along unless taken away expressly or by implication. There are no express words in the Section itself, indicating that the jurisdiction is taken away under any circumstances. It does not appear that by implication even the jurisdiction of either of the Courts is taken away or put an end to. Mr. Chowdhury, the learned Additional P.P., has contended that the use of the conjunction "or" in between the High Court and the Court of Session clearly indicates that a party has only one choice of approaching one Court or the other. That was also the view of the Division Bench of the Calcutta High Court in the case of Amiya Kumar, reported in 1979 Cr. LJ 288. The learned Judges in that case referred to Rowe and Webb for a grammatical construction. Four uses have been referred to by the learned authors with reference to "or" but for our present purpose, it is sufficient to note that the learned authors themselves have pointed out that "or" is sometimes used in a strongly alternative sense and sometimes in no alternative sense. Similarly, Nesfield's grammar, also quoted by the learned Judges of the Division Bench, refers to different uses of the conjunction "or" sometimes it is uses in alternative or exclusive sense, and sometimes in inclusive or non-alternative sense where "or" is merely equivalent to "and". Thus contrary positions may be reached if we confine ourselves to strictly grammatical constructions. The learned Judges of the Division Bench in the case of Amiya Kumar have accepted the alternative or exclusive sense with regard to Section 438 of the Code of Criminal Procedure, but with regard to Section 439, Code of Criminal Procedure, they are of the view that "or" has been used in the non-alternative sense equivalent to "and". The reasoning for accepting one meaning in one case and another meaning in another case for the same word "or" appears to be obscure. It seems that there should not be any exclusive concentration on grammar, as thereby we might lose contact with the current of thoughts communicated by the language. It has been shown before that the word "or" is capable of elasticity even according to grammatical constructions. Such being the position, the real attention should be focused on the intendment of the provision, making a broad reading of the Section itself and placing it in juxtaposition with the other comparable provisions. It seems that the legislators did not intend to exclude the one or the other of the two Courts-the High Court or the Court of Session. Had it been so intended, the legislators would have taken care to express that clearly, as they have done in sub-Section (3) of Section 397 and sub-Section (3) of Section 399 of the Code of Criminal Procedure. Mr. Chowdhury has argued that the word "or" occurring in Section 438 is disjunctive in nature. It seems that has, also weighed with A. C. Sen Gupta, J. But the mere fact that it is disjunctive does not mean much in this case. It may be disjunctive, but necessarily not exclusive. This disjunction is merely temporal; it disjoins but does not exclude the other. At any given point of time, one can approach only one Court and not both the Courts simultaneously. That does not mean that the choice of a person to approach the other Court is foreclosed for ever. There are no, such words that the choice exercised once would become final, so that afterwards he cannot move another Court having competent jurisdiction. The learned Judges of the Division Bench in the case of Amiya Kumar have also observed that the restriction as to the choice of the Court would also be further evidenced from the use of the words "that court may" in the Section indicating singular number. It is not felt how the use of the singular number can connote anything, because, as has been pointed out before, at any point of time, a party can approach a single Court and not two or more Courts simultaneously. In the Full Bench case of the Himachal Pradesh, report in AIR 1980 Himachal Pradesh 36, it has been held that a person can move an application for anticipatory bail in the High Court even though a similar application of his has been rejected by the Sessions Judge, for, while doing so he does not invoke the revisional jurisdiction of the High Court but applies under Section 438 of the Code of Criminal Procedure. With respect, we agree to the proposition. In the case reported in 1986 Cr. LJ 1742, a learned single-Judge of the Kerala High Court has laid down the same proposition. It has been observed that Section 438 was not intended to give a restricted forum in the sense that when one forum is chosen the jurisdiction of the other is excluded. It has been further observed that the freedom of applying to the High Court or to the Court of Session need not necessarily mean that when the Court of Session is moved the option has become final and the approach to the High Court is thereafter barred. We respectfully say that this is the correct law.
23. In the case of Onkar Nath Agarwal and Ors. (1976 Cr. LJ 1142) the Full Bench of the Allahabad High Court seems to have accepted the same view by implication. It has been settled that a bail application under Section 438 may be moved in the High Court without the applicant taking recourse to the Court of Session. The question referred to the Full Bench was whether the application for anticipatory bail under Section 438 of the Code of Criminal Procedure was maintainable in the High Court without such an application having been moved and rejected by the Court of Session. The answer to the question, as indicated earlier, is in the affirmative. So it is implied that an application can be moved in the Court of Sessions Judge, and then after being rejected, in the High Court. We are incline to accept the ratio of the decisions of the Himachal Pradesh, Kerala and the Allahabad High Courts. For the reasons mentioned before, we are not inclined to accept the decision of the Division Bench of the Calcutta High Court, reported in 1979 Cr. LJ 288.
24. Thus the conclusion is reached that a party, after unsuccessfully moving the Court of Session for anticipatory bail can again approach the High Court for the same purpose, as that is not expressly or by implications barred. The view of Khastgir, J. in the Division Bench out of which this reference arises is the correct view. The matter should now go back to the Division Bench for disposal of the petition on merits. Haridas Das, J. I agree. Application disposed of."
Sri Sushil Shukla learned counsel submitted that the reading of any restriction bearing upon the concurrent jurisdiction as conferred by Section 438 Cr.P.C. upon the High Courts and the Courts of Sessions would run contrary to the principles enunciated by the Constitution Bench in Sibbia. It was submitted that where the statute itself did not place any fetter on the exercise of power by the Courts, it would be wholly impermissible to read a restriction by way of statutory interpretation. According to Sri Shukla it was the evolution of standards and restrictions not otherwise finding place in Section 438 Cr.P.C. by the Full Bench of the Punjab and Haryana High Court which were ultimately set aside by the Constitution Bench in Sibbia. Insofar as the Explanation appended to sub section (2) was concerned, Sri Shukla also contended that while that provisions may have created a remedy of a revision, the same cannot be read as ousting or debarring the jurisdiction of this Court even though an earlier application may have been rejected by the Courts of Sessions.
Sri Yadav learned counsel placed reliance upon the principles elucidated by the Constitution Bench in the matter of Ranchhoddas Atmaram And Another v. Union of India And Others10 to submit that the opening part of Section 438 Cr.P.C. is framed and couched in positive terms. In view thereof it was his submission that the use of the word 'or' between the High Court and the Court of Sessions clearly evidences the intent of the legislature for it to mean 'either'. Reliance was principally placed on the following propositions as laid down in that decision:-
"13. It is clear that if the words form an affirmative sentence, then the condition of one of the clauses only need be fulfilled. In such a case , "or" really means "either" "or". In the Shorter Oxford Dictionary one of the meanings of the word "or" is given as "a particle co-ordinating two (or more) words, phrases or clauses between which there is an alternative." It is also there stated, "The alternative expressed by" "or" is emphasised by prefixing the first member or adding after the last, the associated adv. EITHER," So, even without "either," "or" alone creates an alternative. If, therefore, the sentence before us is an affirmative one, then we get two alternatives, any one of which may be chosen without the other being considered at all. In such a case it must be held that a penalty exceeding Rs. 1,000 can be imposed.
14. If,. However, the sentence is a negative one, then the position becomes different. The word "or" between the two clauses would then spread the negative influence over the clause following it. This rule of grammar is not in dispute. In such a case the conditions of both the clauses must be fulfilled and the result would be that the penalty that can be imposed can never exceed Rs. 1,000. "
Sri Yadav however submitted that the insertion of the Explanation to sub section (2) is clearly indicative of the intent of the Legislature to bar a second application before this Court once a prayer for anticipatory bail had come to be rejected by the Court of Sessions. According to Sri Yadav once the Court of Sessions has proceeded to reject a prayer for anticipatory bail, the only remedy available to an individual would be to assail the same by way of revision.
Sri I.P. Srivastava and Sri Vikas Sahai learned A.G.As. have contended that the provisions of Section 438 Cr.P.C. as introduced do not appear to debar the jurisdiction of this Court notwithstanding an application for grant of anticipatory bail having been rejected by the Court of Sessions. It was however contended that Harendra Singh lays down the correct position in law when it requires parties to establish the existence of exceptional and special circumstances. According to learned A.G.As. if such a restraint were not to be not read in Section 438 Cr.P.C., it would lead to a situation where this Court would be flooded with applications for anticipatory bail and thus the legislative intent of conferring Courts of Sessions with concurrent jurisdiction itself be rendered nugatory. Learned A.G.As. relied upon the decisions of different High Courts as noticed in Harendra Singh to submit that the principle so formulated clearly placed the rights of parties in the balance and must consequently be affirmed as being the correct position in law.
Having noticed the rival submissions, the Court proceeds to rule upon the questions as formulated.
QUESTION A - The nature of the concurrent jurisdiction conferred by Section 438 Cr.P.C.
QUESTION B - Whether parties should be commanded to necessarily approach the Sessions Court first before invoking the jurisdiction of this Court under Section 438 Cr.PC.
Since Questions A and B are interlinked, they can be conveniently considered and disposed of together.
On a plain reading of Section 438 Cr.P.C., it is evident that both the High Court and the Court of Sessions are conferred with a concurrent jurisdiction to entertain an application for anticipatory bail. It essentially enables the party to exercise a choice of moving either the High Court or the Sessions Court for the consideration of an application seeking anticipatory bail depending upon the exigencies of the situation. The statute, as is manifest, places no restriction on the exercise of this choice. It is in this sense akin to Section 439 Cr.P.C. which too confers concurrent jurisdiction on the Court of Sessions and the High Court. The distinction between the two only being that while Section 438 Cr.P.C. deals with pre-arrest bail, Section 439 Cr.P.C. is liable to be invoked once a person has been arrested and taken into custody.
Section 438 Cr.P.C. as introduced by the Legislature thus puts in place two possible avenues for redress leaving it open to the individual to exercise a choice to move either the High Court or the Court of Sessions for consideration of a prayer for grant of anticipatory bail. The Court consequently finds itself unable to either recognize or read that provision as mandating the Court of Sessions being necessarily moved in the first instance before the jurisdiction of this Court is invoked. The Court also finds itself unable to discern any legislative intendment that may support the contention that the jurisdiction of this Court may be invoked only once an applicant has exhausted the remedy as available before the Court of Sessions. More importantly, it must be borne in mind that a bar to the jurisdiction of a superior Court should neither be and cannot be readily inferred. For the purposes of identifying such a bar to actually exist, it must be apparent and clearly evidenced either from a reading of the statute itself or from a specific provision made in this respect.
Insofar as Section 439 Cr.P.C. goes, undisputedly a practice appears to have evolved over the decades of parties approaching the Sessions Court by way of an application for bail initially and only after its disposal to move the High Court. This, however, appears to have come to hold the field merely as a rule of convenience since parties do not dispute that the High Court could be independently moved under Section 439 irrespective of whether the avenue as available before the Court of Sessions has been exhausted or not. Practice, however, cannot be elevated to the position of an inviolable rule or one that brooks of no exception. In any case a practice cannot be conferred a judicial imprimatur when such construction would run contrary to the plain language and intendment of the statutory provision. Practice also cannot be accorded a status that either subsumes the clear intent of the statute or restrict its operation. On a fundamental level, therefore, it would be incorrect to hold that Section 438 Cr.P.C. either mandates or envisages the Court of Sessions being moved first before a party becomes entitled to approach this Court by way of an application seeking anticipatory bail.
Dealing with the issue of practice of parties being compelled to approach the Court of Sessions first under Section 439 Cr.P.C., the Full Bench of this Court in Onkar Nath Agrawal observed thus: -
9. We may now consider the authorities cited by the learned Government Advocate in support of his contention. These authorities relate to applications for revision under the provisions of Sections 435 and 439 of the Code of Criminal Procedure, 1898. In the authority reported in Shailabala Devi v. Emperor (1) one of the questions was whether an application in revision should be entertained by the High Court when the mater has not first been taken to the District Magistrate or the Sessions Judge. Sir, Shah Sulaiman, C. J., held that the High Court has full jurisdiction to entertain such an application even though the District Magistrate or the Sessions Judge has not been approached in the first instance. At the same time he observed:
"It is quite clear that a practice has grown up in this Court to refuse to entertain applications direct, until the District Magistrate or the Sessions Judge has been approached. This practice is based largely on convenience, and seems to me to be sound. The District Magistrate or the Sessions Judge is on the spot and easily accessible and the record can be locally called for promptly without any loss of time and without the necessity of sending it through the post. The proceedings are also likely to be less expensive. The High Court is a superior Court and its time would not be unnecessarily spent in examining the record and in some cases even considering the evidence, when a subordinate court has already considered the matter and made its report. Further, the High Court would have the opinion of another Court before it which would be of help. In practice no great harm is likely to be suffered by the accused, if he is required to go to the District Magistrate or the Sessions Judge in the first instance. When a practice of this kind becomes well known to the members of the Bar in the Mofussil and in the High Court the accused would be advised to approach the subordinate court forthwith and not attempt to file a revision in the High Court direct. In many cases, if the District Magistrate or the Sessions Judge reports in favour of the accused, be need not be represented in the High Court, particularly when the illegality of the conviction or the severity of the sentence is patent. On the other hand, if such a salutary rule of practice were not to prevail, there would be a temptation, and even an encouragement, to accused persons to come up straight to the High Court over the head of the District Magistrate or the Sessions Judge concerned, because the latter can only report to the High Court and cannot themselves pass an order in favour of the accused. Many accused persons may therefore think it more expeditious and much cheaper to come up straight to the High Court. The High Court would then be flooded with such applications.
On these grounds it seems that a practice of a long standing has grown up under which the High Court does not ordinarily, entertain an application in revision unless the District Magistrate or the Sessions Judge has been moved first."
10. There are, however, several authorities in support of the view that the practice recognised in the case of Shailabala Devi v. Emperor AIR (1) is not an absolute one and there may be exceptions to it. Accordingly in the case of S. P. Dubay v. Narsingh Bahadur (supra) it was held that though the normal practice for the High Court is to refuse to entertain application where the applicant did not approach the Sessions Judge first, but there is no hard and fast rule and in suitable cases the High Court has been known to depart from this practice and to accept revisions that have not been previously considered by a Sessions Judge...... Similarly in Municipal Board v. Bhim Singh (supra) D.S. Mathur, J. as he then was observed:
"But where the High Court entertains a revision directly without the party having approached the Sessions Judge there would be no illegality but a mere departure from the above practice......."
11. The recent view, therefore, appears to be that the Courts should have unfettered discretion and may entertain revision notwithstanding the prevailing practice if they feel justified on the basis of facts and circumstances of each case. We may also add that there is no authority in support of the contention that the 'practice of convenience' recognised in Shailabala's case in respect of revisions is applicable to bail or anticipatory bail and that the discretion of the court Should be fettered by such a practice. We are, therefore, of the view that the Courts should have an unfettered discretion in the matter of bail under Section 438, Cr. P. C. to be exercised according to the exigencies of each case." (emphasis supplied) While dealing with this contention the Court cannot loose sight of the fact that it is called upon to interpret a provision that has a direct relation to the issue of personal liberty of an individual. It would, therefore, be manifestly incorrect for the Court to invent or construct restrictions on the discretion so conferred reading constraints in the statute which otherwise do not exist. The exercise of discretion as conferred by Section 438 Cr.P.C. was eloquently explained by the Constitution Bench in Sibbia as under: -
"13. This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of Section 438. Though sub-section (1) of that section says that the court "may, if it thinks fit" issue the necessary direction for bail, sub-section (2) confers on the court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub-section. The controversy therefore is not whether the court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code.
....
26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which 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 offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi vs. Union of India (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein."
The discretion so wisely conferred by Section 438 Cr.P.C. consequently should not be shackled or cabbined by judicial artifices or the interpretative construction of barriers not otherwise placed by the statute. This position is also evident from the conclusions recorded by the Full Bench of this Court in Onkar Nath Agrawal. The Court deems it apposite to extract the following parts of the decision rendered therein:-
"6. The words 'that Court may, if it thinks fit. direct etc.' make it also clear that the Sessions Judge or the High Court thus a discretionary power to give a direction for release of the applicant on bail. It does not lay down any condition on the existence of which bail can be granted. When a tribunal is invested by an Act or by rules with discretion without any indication in the Act or rules of the grounds upon which the discretion is to be exercised, the Courts have declined to lay down any rules with a view to indicate the particular grooves in which the discretion should run on the ground that if the Act or rules do not fetter the discretion of the Judge why should the courts do so. (See Gardner v. Jay (1885) 29 Ch D 50 and Hume v. Poresh Chunder AIR 1914 Cal 597 : 15 Cri LJ 49 (SB)).
.....
12. We therefore answer the question under reference in the affirmative and hold that a bail application under Section 438, Code of Criminal Procedure, 1973 may be moved in the High Court without the applicant taking recourse to the court of Sessions. "
It must therefore, be held that Section 438 Cr.P.C. 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.
QUESTIONS C - In what circumstances can the High Court be approached directly under Section 438 Cr.P.C.
That then takes the Court to consider the question of when should the High Court entertain an application for anticipatory bail directly. Hon'ble Chandra Dhari Singh, J. after noticing the views taken by different High Courts in Harendra Singh has proceeded to hold that in extraordinary circumstances and where special reasons exist, the party can also approach the High Court directly. The only note of caution which was entered by the learned Judge was that the Court cannot entertain an application for grant of anticipatory bail as a matter of routine and without examining whether any special reasons or circumstances exist justifying the application being considered by the High Court directly. Noticing the decisions rendered by the Karnataka High Court as well as the Gauhati High Court, the learned Judge identified and assigned valid and cogent reasons for parties being relegated to move the Sessions Court first. It would be appropriate to reproduce the following principles as elucidated by the learned Judge in Harendra Singh:-
"16. In a decision reported in 1983(2) KLJ 8 in the case of K.C. Iyya Vs. State of Karnataka, the High Court of Karnataka has observed as follows:
"7. Since both the Courts, the Court of Sessions and this Court have concurrent powers in the matter, it appears desirable, for more than one reason, that the Sessions Court should be approached first in the matter."
17. In the case of Shivasubramanyam Vs. State of Karnataka and another; 2002 CRL.LJ 1998, the Karnataka High Court has re-iterated the abovesaid principles and ultimately held that the application filed under Section 438 of Cr.P.C. directly to the High Court is maintainable only under exceptional and under special circumstances, but not as a routine and the party cannot come before the Court as a matter of right.
18. By looking into the abovesaid discussions, I am of the opinion that the party has to approach the Sessions Court first and then he has to approach the High Court which is the normal course. But the courts have also observed that in extraordinary circumstances with special reasons, the party can also approach the High Court. The High Court cannot entertain Section 438 of Cr.P.C. as a matter of routine without examining whether there are any special reasons or special circumstances to entertain the said application.
19. In the case of Sri Kwmta Gwra Brahma Vs. State of Assam (Bail No.3024 of 2014), The Gauhati High Court has also expressed similar view and held that the party has to approach the Court of Sessions first under Section 438 of Cr.P.C. and he can later approach the High Court.
20. The intention of bringing out Section 438 of 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 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.
21. 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. Moreover, the party will get two opportunities to get the remedy either 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.
22. 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.P.C. 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.
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24. 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."
On an ultimate analysis of the law rendered on the subject, the learned Judge recorded the the following conclusions:-
"26. Hence, I answer the point raised as follows:
"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."
The reasons which are assigned by Hon'ble Chandra Dhari Singh, J. in Harendra Singh are not only convincing and compelling, but also clearly appear to be expedient and prudent. The Legislature in its wisdom conferred concurrent jurisdiction on the Court of Sessions perhaps bearing those very reasons in mind. The constraints of access to justice, of distances, the expense of litigation are all relevant factors which appear to have guided the Legislature in clothing the Court of Sessions with contemporaneous jurisdiction. However and notwithstanding the compelling and judicious imperatives in favor of the formulation of these factors in justification of relegation to the Court of Sessions, it must be remembered that the said caveat can only be recognised as an exercise of self restraint by the Court itself and nothing more. In fact as is evident upon a holistic reading of Harendra Singh, it is apparent that it was not the intent of the learned Judge to lay down the rule of restraint and abstention as an absolute proposition. This is also the position which clearly emerges when one bears in mind the following observations entered by the Full Bench in Onkar Nath Agrawal:-
"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 the applicant having moved the Court of Sessions initially. Similarly there may be cases in which the Court may feel justified in asking the applicant to move the Sessions Court or to refer the matter to that Court. In any case all depends upon the discretion of the Judge hearing the case. "
On a conjoint reading of the aforesaid two decisions, it is manifest that all that was intended was to put in place a rule of abstinence and require the individual to establish the existence of special and compelling circumstances constraning him to move the the High Court in the first instance. On an overall analysis of those decisions, it may, therefore, be conclusively held that while there exists no fetter or restriction upon the High Court entertaining an application under Section 438 Cr.P.C. directly it would ultimately depend upon the discretion of the Judge available to be exercised in the facts and circumstances of each case and upon finding special circumstances which warrant this Court to invoke its jurisdiction in the first instance rather than relegating the party to the Court of Sessions.
QUESTION D - Exceptional or Special Circumstances Harendra Singh leaves a window open with the learned Judge observing that requiring the party to invoke the jurisdiction conferred on a Court of Sessions must be recognized as the normal course and the High Court entitled to be moved only in extraordinary circumstances and special reasons. The learned Judge further went on to observe in the ultimate conclusion drawn that for "extraneous" (sic) or special reasons the High Court could also exercise the powers conferred by Section 438 Cr.P.C. notwitstanding the Court of Sessions having not been moved. What appears upon a holistic reading of that decision is the intent of the learned Judge to convey the duty of the applicant approaching the High Court to establish the existence of exceptional and special circumstances. The only clarification which, therefore, would merit being entered is with regard to the requirement of proving the existence of extraordinary or exceptional circumstances. The words "exceptional" or "extraordinary" are understood to mean atypical, rare, out of the ordinary, unusual or uncommon. If the jurisdiction of the Court as conferred by Section 438 Cr.P.C. be circumscribed or be recognised to be moved only in exceptional situations it would again amount to fettering and constricting the discretion otherwise conferred by Section 438 Cr.P.C. Such a construction would perhaps run the risk of being again viewed as being in conflict of the statutory mandate and the discretion conferred. In the considered view of the Court what the learned Judge did seek to convey and hold in Harendra Singh was the requirement of establishing the existence of special, weighty, compelling reasons and circumstances justifying the invocation of the jurisdiction of this Court even though a wholesome avenue of redress was available before the Court of Sessions.
Regard must be had to the fact that the Constitution Bench in Sibbia had an occasion to deal with the correctness of the restrictions as formulated by the Full Bench of the Punjab and Haryana High Court on the exercise of power under Section 438 Cr.P.C. Dealing with that aspect the Constitution Bench clearly held that the exercise of discretion as statutorily conferred cannot be confined in a straitjacket. This simply since it would be impossible to either prophesize or foresee the myriad situations in which the jurisdiction of the Court may be invoked. It was for the aforesaid reasons that the Constitution Bench held that this aspect must be left to the judgment and wisdom of the Court to evaluate and consider whether special circumstances exist or are evidenced by the facts of a particular case. The Court deems it apposite to extract the following paragraphs from the decision rendered by the Constitution Bench:-
"13. This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of Section 438. Though sub-section (1) of that section says that the Court "may, if it thinks fit" issue the necessary direction for bail, sub-section (2) confers on the Court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub-section. The controversy therefore is not whether the Court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute condition which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code.
14. Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn, L. C. said in Hyman v. Rose :
"I desire in the first instance to point out that the discretion given by the section is very wide........... Now it seems to me that when the Act is so express to provide a wide discretion,... it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the court wish it had kept a free hand."
15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law.
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26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which 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 offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficient provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein"
On an overall consideration of the above the Court is of the considered view that Harendra Singh when interpreted and understood in the manner indicated above, rightly balances the issues that arise. While it was urged that the aforesaid decision would be per incuriam the views expressed by our Full Bench in Onkar Nath Agarwal and the decision of the Constitution Bench in Sibbia, this Court finds no merit in that submission since as noted above, even Onkar Nath Agarwal had envisaged situations where the High Court may relegate parties to the Court of Sessions and refuse to invoke its jurisdiction. Insofar as Sibbia is concerned, it becomes relevant to bear in mind that the Constitution Bench was not dealing with the issue that arises for our consideration directly. The observations with regard to the exercise of discretion as appearing therein were entered in the context of the principles formulated by the Full Bench of the Punjab and Haryana High Court relating to the exercise of power under Section 438 itself. The issue of a self imposed restraint exercised by the High Court in light of the contemporaneous jurisdiction conferred on the Court of Session was not a question directly in issue. The argument of per incuriam is thus liable to be and is consequently rejected.
The legal position which consequently emerges is that notwithstanding the concurrent jurisdiction being conferred on the High Court and the Court of Session for grant of anticipatory bail under Section 438 Cr.P.C., strong, cogent, compelling reasons and special circumstances must necessarily be found to exist in justification of the High Court being approached first and without the avenue as available before the Court of Sessions being exhausted. Whether those factors are established or found to exist in the facts of a particular case must necessarily be left for the Court to consider in each case.
What would constitute "special circumstances" in light of the nature of the power conferred, must also be left to be gathered by the Judge on a due evaluation of the facts and circumstances of a particular case. It would perhaps be imprudent to exhaustively chronicle what would be special circumstances. As noticed above, it would be impossible to either identify or compendiously propound what would constitute special circumstances. Sibbia spoke of the "imperfect awareness of the needs of new situations". It is this constraint which necessitates the Court leaving it to the wisdom of the Judge and the discretion vested in him by statute. Without committing the folly of attempting to exhaustively enunciate what would constitute special circumstances or being understood to have done so, the High Court would be justified in entertaining a petition directly in the following, amongst other, circumstances:-
(A) Where bail, regular or anticipatory, of a coaccused has already been rejected by the Court of Sessions;
(B) Where an accused not residing within the jurisdiction of the concerned Sessions Court faces a threat of arrest;
(C) Where circumstances warrant immediate protection and where relegation to the Sessions Court would not subserve justice;
(D) Where time or situational constraints warrant immediate intervention.
These and other relevant factors would clearly constitute special circumstances entitling a party to directly approach the High Court for grant of anticipatory bail.
QUESTION E - The perceived conflict between the decisions rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P.11 and Neeraj Yadav And Another Vs. State of U.P Turning then to the issue of the perceived conflict between the views expressed in Harendra Singh and Neeraj Yadav, it becomes pertinent to note the following aspects. While Harendra Singh fails to notice the decision of the Full Bench in Onkar Nath Agrawal, the conclusions ultiamtely recorded by the learned Judge are in tune with what was ultimately laid down as the law by the Full Bench. It must also be borne in mind that Neeraj Yadav is firstly not a judgment but an interlocutory order. Although the same came to be passed after the final judgment was rendered in Harendra Singh, the learned Judge has not noticed the principles expounded in Harendra Singh. Notwithstanding these aspects surrounding the decisions aforementioned, this Court is of the firm view that there is essentially no conflict in the two decisions. While the the Full Bench in Onkar Nath Agrawal did hold that an application for anticipatory bail may be moved in the High Court without the applicant taking recourse to the Court of Sessions, it had also pertinently observed that there may be cases where the High Court may feel justified in asking the applicant to move the Sessions Court or even refer the matter to that Court on its own. The Full Bench clearly left it upon the discretion of the Judge hearing the case. The ultimate conclusion which came to be recorded cannot possibly be read oblivious of the observations as appearing in paragraph-8 of the report extracted above. As this Court reads the two decisions referred to by parties, it is manifest that there is no irreconcilable conflict in the views expressed. The decision in Harendra Singh as well as the interlocutory order made in Neeraj Yadav must be read in light of the authoritative pronouncement rendered by the Full Bench in Onkar Nath Agarwal and this Court finds no justification in the submission that the two take divergent or incompatible views.
QUESTION - F Impact of the Explanation to Section 438(2) Cr.P.C.
The Court then takes up for consideration the Explanation appended to sub-section (2) of Section 438 Cr.P.C. As is evident from a bare reading of the Explanation, an order passed under sub-section (1) is not liable to be construed as an interlocutory order for the purposes of the Code. There are only two types of orders which can possibly be passed under sub-section (1) of Section 438. Significantly, no provision similar to the Explanation as inserted insofar as the provision applies and operates in the State of U.P., finds place either in the principal Act or in any of the other State Amendments made to Section 438 Cr.P.C. In terms of the provisions made in sub section (1), the particular Court which is moved by way of an application for grant of an anticipatory bail may either reject the application outrightly or issue an interim order of protection. It is only these two specie of orders which are dealt with by the Explanation. The final order to be passed on the application for grant of anticipatory bail is the one which is envisaged and provisioned for in sub-section (4) of that Section. Although the Explanation uses the expression "final order" that is clearly circumscribed by its connection to orders made under sub-section (1). All that consequently flows from the Explanation is that an order rejecting the application or any interim order made on the application pending final disposal ought and are to be viewed as final in character and in any case and for the purposes of the Code not to be construed as interlocutory orders. As this Court reads the Explanation, it appears that the legislative intent was for the creation of a remedy to a party aggrieved by an order either rejecting the anticipatory bail application or an interim order of protection made thereon. The principal remedy under the Code against orders made in proceedings taken therein stands enshrined in Section 397 which creates the remedy of a revision. A revision is liable to be preferred only against a final order as distinct from an interlocutory order made in the course of proceedings. Ordinarily and as is well settled an order granting or refusing bail has always been understood as being interlocutory in nature. This since and as has been repeatedly held an order on an application of bail is ordinarily interim and temporary in character. It is always open to a party to revive a prayer for the grant of bail notwithstanding the rejection of an earlier application. No finality stands attached to an order granting or refusing bail since it can always be renewed from time to time. The legislative intent underlying the insertion of this Explanation appears to be only to obviate and overcome this particular situation alone. Consequently, all that can possibly be deduced from the Explanation is that a party would have the right to assail and challenge an order rejecting an application for grant of anticipatory bail or an interim measure of protection passed on such an application in accordance with law and the provisions made in the Code. On such challenges being initiated, the orders passed under sub-section (1) of Section 438 would not be liable to be construed as interlocutory orders. The Explanation also appears to be a clear manifestation and adoption of the recommendations made by the Law Commission in its reports noticed hereinbefore, namely, of the need to create an avenue to challenge orders passed on applications for anticipatory bail.
The question which however remains to be answered is whether the Explanation so appended would foreclose the right of parties to move the High Court even after an application for anticipatory bail has come to be rejected by the Court of Sessions. The answer to this question must necessarily be in the negative for reasons which follow. At the very outset, it must be noted that Section 438 on its plain terms does not engraft or put in place such a bar. An order passed by the Sessions Court rejecting an application for grant of anticipatory bail is not conferred any finality. Of more significant import is the provision made in sub-section (7) which provides that if an application under Section 438 has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Sessions. Accordingly once the High Court has been moved under Section 438 Cr.P.C. by way of an application, the same applicant cannot then and thereafter move the Court of Sessions. However and significantly no converse restriction stands placed so as to denude the High Court of the jurisdiction to entertain an application for grant of anticipatory bail even at the instance of a person who may have initially approached the Court of Sessions. The Court notes the provisions made in Section 397(3) of Cr.P.C. which do place such a restriction. However the absence of a similar provision speaks eloquently of a lack of legislative intent for such a prohibition being envisaged.
The insertion of the Explanation does not lead this Court to hold that it denudes this Court of the jurisdiction to entertain and decide an application for anticipatory bail notwithstanding a similar application having been denied by the Court of Sessions. The mere creation of a remedy cannot be read as debarring the jurisdiction of a superior Court. There must necessarily be an express legislative command and intendment in support of such a contention. The Court also bears in mind that while the Law Commission Reports did recommed the insertion of a provision denying the right of a second application for grant of anticipatory bail, that recommendation was not accepted. The Legislature while having the benefit of both those reports, chose not to introduce such a restriction. This only leads the Court to hold that there was a conscious decision to not introduce such a restraint and consequently the right of the High Court to entertain a prayer for anticipatory bail notwithstanding the rejection of such a prayer by the Court of Sessions stands preserved and affirmed.
On an overall analysis of the aforesaid legal position, it is therefore evident that while the Explanation may have created an avenue for an aggrieved person to challenge an order passed under Section 438(1), it cannot be construed or viewed as barring the jurisdiction of the High Court from entertaining an application for grant of anticipatory bail notwithstanding that prayer having been refused by the Court of Sessions.
QUESTION G- The period for which anticipatory bail should operate.
That then leaves the Court to deal with the last question which was framed relating to the period for which an anticipatory bail should operate. Undisputedly, the question of whether protection accorded under Section 438 should be limited to a fixed period or not has been referred for the consideration of a Larger Bench of the Supreme Court in terms of the order passed in Sushila Aggarwal & Ors. Vs. State (NCT Of Delhi) & Anr12. The questions formulated for the consideration of the Larger Bench read thus:
"(1) Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.
(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court."
It becomes relevant to note that this issue was firstly dealt by the Constitution Bench in Sibbia, where the following observations came to be entered:
"42. There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of bail be passed under that section without notice to the Public Prosecutor? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad-interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal role should be not to limit the operation of the order in relation to a period of time."
Subsequently, in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others13, the learned Judges of the Supreme Court summarize the legal position in the following terms:
"94. The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.
95. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia case."
However, in HDFC Bank Limited Vs. J.J. Mannan14 after noticing the Constitution Bench decision in Sibbia, it was held:
"14. Referring to the decision of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab, wherein the application of Section 438 CrPC had been considered in detail, Mr Dutta submitted that the said provision had been interpreted to be a beneficent provision relating to personal liberty guaranteed under Section 21 of the Constitution. Mr Dutta submitted that the Constitution Bench had observed that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438 CrPC.
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18. Furthermore, it has also been consistently indicated that no blanket order could be passed under Section 438 CrPC to prevent the accused from being arrested at all in connection with the case. To avoid such an eventuality it was observed in Adri Dharan Das case that anticipatory bail is given for a limited duration to enable the accused to surrender and to obtain regular bail. The same view was reiterated in Salauddin case wherein it was, inter alia, observed that anticipatory bail should be of limited duration only and primarily on the expiry of that duration or extended duration, the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.
19. The object of Section 438 CrPC has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 CrPC cannot also be invoked to exempt the accused from surrendering to the court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 CrPC, since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the court at all even during the trial.
20. Section 438 CrPC contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the court and pray for regular bail. On the strength of an order granting anticipatory bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court.
21. If what has been submitted on behalf of the appellant that Respondent 1 has never appeared before the trial court is to be accepted, it will lead to the absurd situation that charge was framed against the accused in his absence, which would defeat the very purpose of sub-section (2) of Section 240 CrPC."
Again and more recently, three learned Judges in Satpal Singh Vs. The State of Punjab15 held:
"14. In any case, the protection under Section 438, Cr.P.C. is available to the accused only till the court summons the accused based on the charge sheet (report under Section 173(2), Cr.P.C.). On such appearance, the accused has to seek regular bail under Section 439 Cr.P.C. and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 Cr.P.C. that does not mean that he is automatically entitled to regular bail under Section 439 Cr.P.C. The satisfaction of the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail."
Mhetre was a decision rendered by two learned Judges of the Supreme Court. The decision in HDFC Bank Limited was rendered by a Bench of coordinate strength. However, Satpal Singh which is the latest decision before us has been rendered by a Larger Bench comprising of the three learned Judges of the Court. Even the Bench of three learned Judges who presided over the matter of Sushila Aggarwal & Ors have made the following observations:
"9. Also having heard learned counsel appearing on both sides, we are of the prima facie view that the Constitution Bench in Sibbia (supra) has not laid down the law that once an anticipatory bail, it is an anticipatory bail forever.
10. In Sibbia (supra), this Court has briefly dealt with the question of duration of anticipatory bail. It seems to us that the discussion primarily pertained to grant of anticipatory bail at the pre-FIR stage (see paragraph 43 quoted below). It appears that there are indications in Sibbia (supra) that anticipatory bail may be for a limited period. To quote paragraphs 19, 40, 42 and 43:-
"19. ... While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed so have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167(2) of the Code is made out by the investigating agency.
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40. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition (2). We agree that a ''blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". That is what is meant by a ''blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.
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42. There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of bail be passed under that section without notice to the Public Prosecutor? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad-interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal role should be not to limit the operation of the order in relation to a period of time.
43. During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2) (i), (ii) and (iii). The court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the FIR in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The court has attempted through those orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code."
(Emphasis supplied)
11. In the light of the conflicting views of the different Benches of varying strength, we are of the opinion that the legal position needs to be authoritatively settled in clear and unambiguous terms."
Judicial propriety and discipline mandates this Court following the view expressed by a larger Bench in a subsequent decision. It would therefore be appropriate and correct to follow the view expressed by the Larger Bench of the Supreme Court in the decisions rendered after Mhetre as laying down the principle liable to be followed till such time as the question is authoritatively settled by the Larger Bench of the Supreme Court. Consequently, it must be held that an order granting anticipatory bail would be entitled to continue only till the Court summons the accused based on the report that may be submitted under Section 173(2) Cr.P.C. whereafter it would be open for the applicant on appearance to seek regular bail in accordance with the provisions made in Section 439 Cr.P.C.
CONCLUSIONS In light of what has been held above, the Court records its conclusions on the questions formulated as under:-
A. Section 438 Cr.P.C. 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.
B. Notwithstanding concurrent jurisdiction being conferred on the High Court and the Court of Session for grant of anticipatory bail under Section 438 Cr.P.C., strong, cogent, compelling and special circumstances must necessarily be found to exist in justification of the High Court being approached first without the avenue as available before the Court of Sessions being exhausted. Whether those factors are established or found to exist in the facts of a particular case must necessarily be left for the Court to consider in each individual matter.
C. The words "exceptional" or "extraordinary" are understood to mean atypical, rare, out of the ordinary, unusual or uncommon. If the jurisdiction of the Court as conferred by Section 438 Cr.P.C. be circumscribed or be recognised to be moved only in exceptional situations it would again amount to fettering and constricting the discretion otherwise conferred by Section 438 Cr.P.C. Such a construction would be in clear conflict of the statutory mandate. The ratio of Harendra Singh must be recognised to be the requirement of establishing the existence of special, weighty and compelling reasons and circumstances justifying the invocation of the jurisdiction of this Court even though a wholesome avenue of redress was available before the Court of Sessions D. What would constitute "special circumstances" in light of the nature of the power conferred, must be left to be gathered by the Judge on a due evaluation of the facts and circumstances of a particular case. It would be imprudent to exhaustively chronicle what would be special circumstances. It is impossible to either identify or compendiously postulate what would constitute special circumstances. Sibbia spoke of the "imperfect awareness of the needs of new situations". It is this constraint which necessitates the Court leaving it to the wisdom of the Judge and the discretion vested in him by statute.
E. While the Explanation may have created an avenue for an aggrieved person to challenge an order passed under Section 438(1), it cannot be construed or viewed as barring the jurisdiction of the High Court from entertaining an application for grant of anticipatory bail notwithstanding that prayer having been refused by the Court of Sessions.
F. Till such time as the question with respect to the period for which an order under Section 438 Cr.P.C. should operate is answered by the Larger Bench, the Court granting anticipatory bail would have to specify that it would continue only till the Court summons the accused based on the report that may be submitted under Section 173(2) Cr.P.C. whereafter it would be open for the applicant on appearance to seek regular bail in accordance with the provisions made in Section 439 Cr.P.C.
Before parting and proceeding to deal with individual matters, it would be pertinent to enter the following note of caution. Section 438 Cr.P.C. came to be reintroduced in the State in June 2019. It provides a salutary and meaningful remedy to individuals in tune with the constitutional guarantee of personal liberty and provides a remedy to persons against the ignominy of unwarranted harassment and arrest. However in order to avail the remedy, it must be substantively and conclusively established that there is a genuine and imminent threat of arrest. An application for grant of anticipatory bail cannot rest on vague and unsubstantiated allegations nor can the application be instituted without the disclosure of material particulars in support of the percieved threat. An application under Section 438 Cr.P.C. would also not be entitled to be entertained at the behest of one who has failed to join or cooperate with the investigation or one against whom a proclamation of being absconding has come to be made. It would be worthwhile to recollect the following pertinent observations as made by the Supreme Court in Rashmi Rekha Thatoi Vs. State of Orissa16 while expounding on the parameters of the jurisdiction conferred by that provision:-
"25. In Savitri Agarwal v. State of Maharashtra [(2009) 8 SCC 325 : (2009) 3 SCC (Cri) 683] the Bench culled out the principles laid down in Gurbaksh Singh [(1980) 2 SCC 565 : 1980 SCC (Cri) 465 : AIR 1980 SC 1632] . Some principles which are necessary to be reproduced are as follows: (Savitri Agarwal case [(2009) 8 SCC 325 : (2009) 3 SCC (Cri) 683] , SCC pp. 333-34, para 24) "24. ... (ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere ''fear' is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively. Specific events and facts must be disclosed by the applicant in order to enable the court to judge the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.
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(vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
(viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government Advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage."
Reverting to the facts of the present application, the Court notes that the FIR was registered on 11 July 2019. The Court of Sessions was moved sometime in October 2019 and the said application came to be dismissed by the Sessions Judge on 16 October 2019. In the entire petition, there is no allegation or affirmation that the applicant apprehends arrest. No factual foundation has been laid in the application except to the extent of an assertion that the applicant has been falsely implicated in the case. In the absence of even a rudimentary foundation having been laid with respect to the perceived apprehension of arrest, the Court comes to the conclusion that no ground has been made out for the grant of anticipatory bail to the applicant in the facts and circumstances of the present case.
Accordingly the prayer so made is refused.
Order Date :- 6.12.2019 LA/-Arun/faraz/vivek (Yashwant Varma, J.)