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Showing contexts for: criminal procedure code 438 in Ankit Bharti vs State Of U.P. And Another on 2 March, 2020Matching Fragments
"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."
Upon due consideration of the decisions rendered on the subject by the Court as well as those rendered by different High Courts of the country, the following conclusions came to be recorded:
"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.
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.
"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. notwithstanding 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.