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Synopsis

In a significant ruling, the High Court of Jammu & Kashmir and Ladakh dismissed an application for anticipatory bail under Section 438 of the Criminal Procedure Code (CrPC), 1973, for directly approaching the High Court, bypassing the Court of Sessions.

The counsel for the petitioner argued that both courts hold concurrent jurisdiction in such matters, and a choice rests with the accused to choose between the High Court and the Court of Sessions.

Justice Rajesh Sekhri, presiding over the case, noted, "It is, no doubt, evident from a bare perusal of Section 438 of the Code that both the High Court and Courts of Sessions are not only conferred with concurrent power to entertain a plea for anticipatory bail, but the option lies with the affected person apprehending arrest to move either of the two foras. Therefore, there is no quarrel to the statutory position of law envisaged under Section 438 of the Code that the High Courts and Courts of Session have been vested with original jurisdiction to entertain a plea for the grant of anticipatory bail.”

However, the court further observed that it has been a consistent view across various High Courts in the country that the local jurisdictional Court should ordinarily be approached first for anticipatory bail by an accused. Directly seeking a remedy from the High Court, eluding the said jurisdiction, is not favoured.

The court, citing judicial precedents, including the notable case of 'Smt. Manisha Neema v. State of M.P.' ‘2003 (2) MPLJ 587’, which held, “Under Section 439, Cr.PC being concurrent, as a matter of practice, the bail applicants are required ordinarily to approach the Court of Session in the first instance and if relief is denied they approach the High Court under Section 439, Cr.PC itself, not as a Superior Court sitting in appellate or revisional jurisdiction over the order of the Court of Session, but because the Superior Court can still exercise its own jurisdiction independently, unaffected by the result of the exercise by the Court of Session because the latter is an Inferior Court though vested with concurrent jurisdiction. The application seeking bail before the High Court is accompanied by an order of the Court of Session rejecting a similar prayer. The idea is to provide the Superior Court with an advantage of apprising itself with the grounds as considerations which prevailed with the Court of Session in taking the view which it did.”

The court also cited 'Rouf Ahmad Mir v. SSP and Anr.' (Bail App. No. 64 of 2022 decided on 3rd of June, 2022), delivered by a co-ordinate Bench of the J&K and Ladakh High Court, which also declined to entertain an anticipatory bail plea directly preferred in the High Court.

Underscoring the necessity of first seeking relief at the local jurisdictional Court unless exceptional circumstances justify otherwise, the court dismissed the application.

Cause Title: MOHD. SHAFI MASI & OR. vs. UNION TERRITORY OF J&K (BAIL APPLICATION 13/2024)