The discretion under Section 438 Cr.P.C. should be exercised based on the facts and circumstances of each case, and special circumstances must exist and be established before invoking the jurisdiction of the High Court directly for anticipatory bail.

Headnote:
JURISDICTION - ANTICIPATORY BAIL - SECTION 438 CR.P.C. - A. The nature of the concurrent jurisdiction conferred by Section 438 Cr.P.C. B. Whether parties should be commanded to necessarily approach the Sessions Court first before invoking the jurisdiction of this Court under Section 438 Cr.PC C. In what circumstances can the High Court be approached directly under Section 438 Cr.P.C. D. Exceptional or Special circumstances. E. The perceived conflict between the decisions rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P. and Neeraj Yadav And Another Vs. State of U.P. F. Impact of the Explanation to Section 438(2) Cr.P.C. G. The period for which anticipatory bail should operate.
Fact of the Case:

The court considered a petition for anticipatory bail and referred questions to a Full Bench regarding the jurisdiction and circumstances under Section 438 Cr.P.C.
Finding of the Court:

The court concluded that Section 438 Cr.P.C. does not mandate approaching the Sessions Court first, but special circumstances must exist to justify approaching the High Court directly for anticipatory bail.
Issues: The issues revolved around the interpretation of Section 438 Cr.P.C., the requirement to approach the Sessions Court first, and the exceptional circumstances for directly approaching the High Court for anticipatory bail.
Ratio Decidendi: The court held that special circumstances must exist and be established before invoking the jurisdiction of the High Court directly for anticipatory bail. The discretion under Section 438 Cr.P.C. should be exercised based on the facts and circumstances of each case.
Final Decision: The court answered the reference questions, concluding that the decision in Vinod Kumar does not merit reconsideration or further explanation, and it is for the concerned Judge to assess whether special circumstances exist in a particular case warranting the jurisdiction of the High Court being invoked directly.

JUDGMENT :

1. We have heard Sri Gaurav Kacker, learned Advocate and other counsels appearing for the various applicants and the learned AGA.

2. A learned Judge of the Court while considering a petition for anticipatory bail has deemed it appropriate to refer the following questions for the consideration of this Full Bench: -

“(i) Whether the Court would have no jurisdiction to reject the anticipatory bail after considering the grounds of compelling reasons mentioned in the affidavit being found not appealing, which would amount nothing but to approach this Court directly;

(ii) Whether amongst the grounds which have been enumerated in the judgment in the case of Vinod Kumar (supra), the ground at Serial (A) requires any reconsideration so as to preclude the co-accused approaching this Court directly in case the other co-accused's regular bail/anticipatory bail is rejected by the Court of Sessions and whether he be also subjected to filing such an affidavit, showing therein the circumstances in which he had to feel compelled to approach this Court directly;

(iii) Whether amongst the grounds which have been enumerated in the judgment in the case of Vinod Kumar (supra), the ground at Serial (B) requires any reconsideration as to whether an accused, who is not residing within the jurisdiction of the Sessions Court concerned, faces a threat of arrest, should be allowed to approach the High Court directly, to move an anticipatory bail application by the logic given above in Para 6 of this judgment; and

(iv) Whether such anticipatory bail applications which do not contain any compelling reason to approach this Court directly, should be entertained.

3. While passing the referral order, the learned Judge also suggested the formation of a Bench larger than the one which had rendered judgment in Onkar Nath Agarwal and other Vs. State, 1976 All LJ 223, a decision rendered by three learned Judges of this Court. The Reference came to be made in the backdrop of the decision rendered in Vinod Kumar Vs. State of U.P. and another, 2019 (12) ADJ 495 in which a learned Judge framed the following questions for consideration:-

“A. The nature of the concurrent jurisdiction conferred by Section 438 Cr.P.C.

B. Whether parties should be commanded to necessarily approach the Sessions Court first before invoking the jurisdiction of this Court under Section 438 Cr.PC

C. In what circumstances can the High Court be approached directly under Section 438 Cr.P.C.

D. Exceptional or Special circumstances.

E. The perceived conflict between the decisions rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P. and Neeraj Yadav And Another Vs. State of U.P.

F. Impact of the Explanation to Section 438(2) Cr.P.C.

G. The period for which anticipatory bail should operate.”

Upon due consideration of the decisions rendered on the subject by the Court as well as those rendered by different High Courts of the country, the following conclusions came to be recorded:

“A. Section 438 Cr.P.C. on its plain terms does not mandate or require a party to first approach the Sessions Court before applying to the High Court for grant of anticipatory bail. The provision as it stands does not require an individual first being relegated to the Court of Sessions before being granted the right of audience before this Court.

B. Notwithstanding concurrent jurisdiction being conferred on the High Court and the Court of Session for grant of anticipatory bail under Section 438 Cr.P.C., strong, cogent, compelling and special circumstances must necessarily be found to exist in justification of the High Court being approached first without the avenue as available before the Court of Sessions being exhausted. Whether those factors are established or found to exist in the facts of a particular case must necessarily be left for the Court to consider in each individual matter.

C. The words "exceptional" or "extraordinary" are understood to mean atypical, rare, out of the ordinary, unusual or uncommon. If the j

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2020 Supreme(All) 657

The discretion under Section 438 Cr.P.C. should be exercised based on the facts and circumstances of each case, and special circumstances must exist and be established before invoking the jurisdiction of the High Court directly for anticipatory bail.

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