The main legal point established is that while the Sessions Court should be approached first for anticipatory bail, the High Court can also exercise such power for grant of the remedy under Section 438 of Cr.P.C. for extraneous or special reasons.

ORDER :

Chandra Dhari Singh, J.

1. Heard learned Counsel for the applicant and learned A.G.A.

2. By means of instant application filed under Section 438 of Cr.P.C., the applicant has sought anticipatory bail in Case Crime No. 476 of 2019, under Sections 419, 420, 467, 468, 471 IPC lodged at Police Station Kotwali Nagar, District Raebareli.

3. Before adverting to the factual matrix of this case and to ascertain as to whether the applicant is entitled for grant of anticipatory bail or not; a serious legal question has been raised before this Court by the learned A.G.A. that the applicant without exhausting the remedy under Section 438 of Cr.P.C., before the jurisdiction Sessions Court, has directly approached this Court. Therefore, the application is not maintainable and the applicant has to be relegated to the Court of Sessions first and then he can approach this Court. In this background, the legal question that arises for consideration of this Court is that-

"Whether the application filed under Section 438 of Cr.P.C., is maintainable before the High Court without exhausting remedy under the said provision before the Court of Sessions which has concurrent jurisdiction with that of the High Court?"

4. Section 438 of Cr.P.C., 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 question raised.

5. The amended provisions of the Criminal Procedure Code, 1973, in its application to Uttar Pradesh is as follows:

"No. 1058 (2)/LXXIX-V-1-19-1(ka)-20-2018

Dated Lucknow, June 6, 2019

In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the governor is pleased to order the publication of the following English translation of the Dand Prakriya Samhita (Uttar Pradesh Sanshodhan) Adhiniyam, 2018 (Uttar Pradesh Adhiniyam Sankhya 4 of 2019) as passed by the Uttar Pradesh Legislature and assented to by the President on June 1, 2019. The Grih (Police) Anubhag-9 is administratively concerned with the said Adhiniyam.

THE CODE OF CRIMINAL PROCEDURE (UTTAR PRADESH AMENDMENT) ACT, 2018

(U.P. Act No. 4 of 2019)

[As passed by the Uttar Pradesh Legislature]

AN

ACT

further to amend the Code of Criminal Procedure, 1973 in its application to Uttar Pradesh.

It is hereby enacted in the Sixty ninth Year of the Republic of India as follows: -

1. This Act may be called the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2018.

2. In the Code of Criminal Procedure, 1973 as amended in is application to Uttar Pradesh, after section 437-A the following section shall be inserted, namely:-

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) ......

(ii) .....

(iii) ....

(iv) ...."

6. On plain and me