High Court can entertain bail applications based on new evidence collected during trial, despite prior rejections by the Sessions Court.

JUDGMENT :

ARUN KUMAR SINGH DESHWAL, J.

1. Heard Sri Amit Kumar and Sri N.I. Jafri, learned Amicus Curiae for the applicant, Sri Himanshu Kumar, learned A.G.A. for the State and perused the record.

2. This matter was heard on 08.12.2025 and 15.12.2025. Matter was argued on the point, "whether after rejection of bail by Sessions Court on the basis of material available in the case diary, the High Court can entertain the bail application on the basis of material collected during trial though the same was not available before the Sessions Court at the time of rejection of bail application as well as the question whether the second bail application is maintainable on the basis of evidence collected during trial though at the time of rejection of first bail application by the Sessions Court as well as High Court that material was not available".

3. Learned counsel for the applicant as well as amicus curiae, learned Senior Counsel, Sri N.I. Jafari submitted that the power of High Court under Section 439 Cr.P.C./483 BNSS and Sessions Court is concurrent. The High Court can entertain the bail application on any ground even though same was not available before the Sessions Court at the time of rejecting the bail application of the accused.

4. In support of his contention, counsel for the applicant has relied upon the judgement of the Apex Court in the case of Kamal @ Kamal Choudhary vs The State of Madhya Pradesh in Criminal Appeal No.992 of 2025 (arising out of S.L.P. (Criminal) No.808 of 2025), wherein the Apex Court observed that even after rejection of the first bail application by the High Court, if subsequent material is collected during trial then accused need not to file second bail application before the Sessions Court. It can consider second bail application on the basis of new material collected during trial. To decide the issue, it would be appropriate to quote Section 439 Cr.P.C./483 BNSS, which is as follows;

439. Special powers of High Court or Court of Session regarding bail. (1) A High Court or Court of Session may direct:–

(a) that any person accused of an offence and in custody, be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified :

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

[Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.]

(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub- section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.] [Inserted by Criminal Law (Amendment) Act, 2018 (22 of 2018), dated 11.8.2018.]

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

5. From perusal of Section 439 Cr.P.C., it is clear that the High Court as well as Sessions Court have special power to release a person. In this Section, it is not mentioned that before approaching the High Court, a person must ap