Only Under Exceptional, Rare Circumstances Application U/s. 438 Can Be Filed Directly Before High Court - J&K&L HC

The Jammu and Kashmir and Ladakh High Court has held that an applicant seeking anticipatory bail under section 438 of the Code of Criminal Procedure (CrPc) directly before High Court must demonstrate and satisfy the High Court that there were exceptional, rare, and unusual reasons for the applicant to approach the High Court directly.

The Single Bench of Justice Sanjay Dhar held that "Although Section 438 of the Cr. P. C gives concurrent jurisdiction to High Court and Sessions Court to consider a bail application of an accused yet, as a matter of ordinary practice, High Court does not entertain application of a person under Section 438 of the Cr. P. C unless the said person has approached and exhausted the remedy before the Court of first instance."

"It is only in exceptional cases and in special circumstances the High Court may entertain an application under Section 438 of Cr. P. C without insisting upon filing of such application before the Court of Session in the first instance," the Court held further.

The Court noted that the petitioner had moved an application for grant of anticipatory bail before the Sessions Judge, wherein the judge called the report of police without passing an interim protection order in favor of the petitioner.

It was averred in the application that the petitioner thereafter withdrew the bail application and approached High Court by invoking the jurisdiction of the Court under Section 438 of CrPC.

The Court observed that the High Court does not entertain an application by a person under Section 438 of the Cr. P. C unless the person has approached and exhausted the remedy before the Court of the first instance.

The Court placed reliance on a catena of judgments to analyze whether or not an application under Section 438 of Cr. P. C should ordinarily be entertained by High Court without the applicant having exhausted the remedy of approaching Sessions Court.

The Court noted that such an application should ordinarily be filed before the Sessions Court at the first instance and not directly before the High Court.

The Court opined that "For filing an application directly before the High Court, the applicant has to demonstrate and satisfy the High Court that there exist exceptional, rare and unusual reasons for the applicant to approach the High Court directly."

The Court observed that in this case, the petitioner approached the High Court directly without exhausting the remedy before Sessions Judge, and further noted that even if the petitioner after approaching the said Court, abandoned the application midway without actually exhausting the said remedy.

The Court also observed that there were no exceptional circumstances in the case.

"Merely because learned Sessions Judge has, on the first date of hearing, called the report from the police without passing an order of interim protection in favour of the petitioner does not entitle him to move this Court by abandoning his earlier application before the Court of Sessions", the Court held while dismissing the petition seeking bail.

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