The main legal point established in the judgment is that the jurisdiction for entertaining prayer for anticipatory bail is concurrent in nature between the High Court and the Court of Sessions. Additionally, it is prudent to approach the Sessions Court first before seeking remedy in the High Court, considering factors such as accessibility, workload of the High Courts, and the need for scrutiny of facts.

ORDER

1. This matter is taken up by video conferencing mode.

2. This is an application under Section 438 of the Cr. P.C..

3. Heard learned counsel for the petitioners and learned counsel for the State.

4. The petitioners herein are apprehending arrest in G.R. Case No. 85 of 2021 arising out of Bhuban P.S. Case No.91 of 2021 on the file of learned J.M.F.C., Bhuban for commission of offences under Sections 341/294/323/379/ 506/ 34 of the Indian Penal Code.

5. Without going into the merits of the present petition filed by the petitioners under Section 438, Cr. P.C. seeking direction for pre-arrest bail, this Court is to observe first that whether the petition under Section 438 Cr. P.C. is maintainable before this Court without exhausting remedy under the said provision before the Court of Sessions which has concurrent jurisdiction.

6. The provisions of bail create a balance between the personal liberty of an accused and the interest of the society. Bail is a matter of right in bailable offences as provided under Section 436 of the Cr. P.C. and a matter of judicial discretion in non-bailable offences under Sections 437 and 439 of Cr.P.C. Where bail under Sections 436, 437 and 439 Cr. P.C. can be granted only after an arrest. On the other hand Section 438 Cr. P.C. provides for a pre-arrest bail which is commonly known as Anticipatory Bail.

7. A plain reading of Section 438 Cr.P.C. necessitates an immediate conclusion that the jurisdiction conferred on the High Court and the Sessions Court for entertaining prayer for anticipatory bail is concurrent in nature.

However, the controversy as to whether the application would be maintainable before the High Court only after exhaustion of the remedy before the Sessions Court has been posed before different High Courts in plethora of cases.

8. A bare perusal of the Section 438 of Cr. P.C. which reads as follows:

'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 to the High Court or the Court of Sessions 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 offences;

(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.'

The rest of the provision is not necessary for the purpose of considering the present question.

9. Upon a plain reading of the provision under Section 438 of Cr. P.C., it is crystal clear that it confers concurrent jurisdiction on the High Court as well as on the Court of Sessions. The wide discretion has been entrusted on the Court of Sessions as well as on the High Court to enlarge such person who comes to the Court, on anticipatory bail. Both the Courts have got jurisdiction to enlarge the applicant on anticipatory bail, considering the relevant guidelines in the said provision. As it is seen in the provisions itself, there is no embargo or any rider incorporated under the provision that the person who approaches the High Court must first exhaust the said remedy before the Court of Sessions.

10. Though such remedy, cannot be whittled down by imposing any extraordinary condition, 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. is purely a discretionary power of the Court to exercise power depending upon the facts and circumstances of each case. Therefore,