The court affirmed that under Section 438 Cr.P.C., individuals have the option to apply for anticipatory bail directly to the High Court without first approaching the Sessions Court, provided sufficient justification is presented.

JUDGMENT :

1. Almost four decades post the deletion of Section 438 Cr.P.C. insofar as it applied to the State of Uttar Pradesh, the Legislature reintroduced that provision on 6 June 2019. The legislative essay was a reaffirmation of the constitutional guarantee of personal liberty accorded to all citizens and to provide a salutory safeguard against the ignominy of arrest and deprivation of liberty. This nascent and resurrected jurisdiction has, however, in a short span of time raised questions which merit an authoritative pronouncement. It is in that backdrop that the Court takes up the instant petition.

2. This petition along with other applications for grant of anticipatory bail were taken up on 4 December 2019. Upon preliminary submissions being advanced, the Court on that date framed the following questions which appeared to principally arise:-

“The present application under Section 438 Cr.P.C. for anticipatory bail has been moved after rejection of a similar application by the Sessions Judge. The issue which would consequently arise would be whether the application would be maintainable since as per the provision, an order once passed shall not be construed as an interlocutory order for the purposes of the Code.

Learned counsels have also referred to the views expressed by two learned Judges in Criminal Misc. Bail Application No. 44895 of 2019 [ Neeraj Yadav And Another Vs. State of U.P. And 2 Others] and Bail Application No. 6478 of 2019 [ Harendra Singh @ Harendra Bahadur Vs. The State of U.P. ]. According to learned counsels since the statute confers concurrent jurisdiction, it would be incorrect for the Court to take the view that the applicant must first exhaust the remedy before the Sessions Court before applying to the High Court. The perceived inconsistency is addressed on the basis of the views expressed on the two applications aforementioned. The third issue which would arise for consideration would be that if the Court were to accept the view expressed in Harendra Singh what would be the special circumstances in which the High Court could be moved first without the applicant being asked to invoke the jurisdiction of the Sessions Judge.

As requested by learned counsels appearing in similar matters as well as Sri Sisodia in this application, include in the list of fresh cases of 06 December 2019.”

3. In order to facilitate learned counsels to address further submissions, the application and other matters on that date were placed for disposal today. All members of the Bar were requested to address submissions bearing in mind the importance of the questions which stood raised and the impact which they would have on matters likely to come before the Court in future. The Court for the purposes of convenience, shall firstly proceed to note and dispose of the questions which arise and thereafter deal with the merits of the instant application separately.

4. The issues themselves arise in the backdrop of the reintroduction of Section 438 Cr.P.C. by virtue of U.P. Act No. 4 of 2019 w.e.f. 6 June 2019. It would be apposite to recollect that Cr.P.C. stood as part of the Code applicable to the State till it was deleted with retrospective effect from 28 November 1975 by U.P. Act No. 16 of 1976. The provision as it originally existed on the statute book was as follows:

“438. Direction for grant of bail to person apprehending arrest.-(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this sect