IMPORTANT POINT
Application for grant of anticipatory bail directly in High Court without first approaching Sessions Court is certainly maintainable – However, if anticipatory bail applications are entertained in each and every case in High Court, without exhausting remedy before court of Sessions, it would result into flooding High Court with cases for relief which could have been granted by Sessions Court.

JUDGMENT

Vivek Bharti Sharma, J.—Applicant Ashu Tyagi is seeking anticipatory bail in FIR/Case Crime No. 0054 of 2023, under Sections 419 & 420 IPC, Police Station Vikasnagar, District Dehradun.

2. Heard learned counsel for the parties and perused the record.

3. Learned State Counsel would argue that applicant has an equally efficacious remedy available to file the anticipatory bail application before the Sessions Court. She would further argue that instead of approaching the Sessions Court, the applicant/accused has directly come before this High Court without exhausting equally efficacious remedy available before Sessions Court.

4. She would further submit that the issue regarding entertainability of anticipatory bail application before the High Court u/s 438 of Cr.P.C. is pending consideration before the Hon’ble Supreme Court in Criminal Appeal No. 1562/2017 Gauhati High Court Bar Association vs. State of Assam and Others, wherein the issue raised before the Hon’ble Supreme Court is that “Whether the High Court exercising jurisdiction under Section 438 of the Code of Criminal Procedure, 1973 has discretion not to entertain such an application on the ground that the applicant must first apply to the Court of Sessions.”

5. Per contra, learned counsel for the applicant would submit that the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. and the applicant cannot be compelled to apply for anticipatory bail before the court of Sessions before approaching this High Court. He would refer a judgment of Hon’ble Division Bench of this Court in Mubarik and Another vs. State of Uttarakhand and Others, W.P. (Crl.) No. 2059 of 2018, decided on 02.11.2018 wherein it has been held that the High Court and the Court of Sessions have concurrent jurisdiction under Section 438 of Cr.P.C. and it is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly.

6. In view of this Court, it is settled position of law that the High Court and the Sessions Court have concurrent jurisdiction u/s 438 Cr.P.C. This is also evidently clear from the language of Section 438 of Cr.P.C. which says that any person who has reasons to believe that, he may be arrested on accusation of having committed a non-bailable offence, he may apply to High Court or the Court of Sessions for a direction under this Section, that in event of arrest he shall be released on bail. This means that High Court and Court of Session have concurrent jurisdiction to grant anticipatory bail for an offence. Hence, an application for grant of anticipatory bail directly in the High Court without first approaching Sessions Court is certainly maintainable. However, in considered view of this Court, the High Court hearing the application for anticipatory bail directly filed before it, shall always has discretion to entertain it or to direct the applicant to first move the Court of Sessions for anticipatory bail.

7. This Court cannot be oblivious of the fact that there is equally efficacious remedy available with the applicant/accused to file application seeking anticipatory bail before the Sessions Court at the first instance. If the anticipatory bail applications are entertained in each and every case in the High Court, without exhausting the remedy before the court of Sessions, it would result into flooding the High Court with cases for the relief which could have been granted by the Sessions Court and this Court will not be benefitted by the observations made by the Sessions Judge in the orders of rejections of the anticipatory bail application.

8. As regards the case of Mubarik (supra) which has been relied upon by the counsel for the applicant, a perusal of said judgment reveals that the terms of reference in the said case before the Hon’ble Division Bench was Whether the High Court and the Court of Sessions exercises concurrent jurisdiction under Section 438 of Cr.P.C.

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