IMPORTANT POINT
The High Court has discretion to require applicants to first approach the Sessions Court for anticipatory bail, emphasizing the importance of exhausting available remedies.

JUDGMENT :

VIVEK BHARTI SHARMA, J.

1. Applicant Vikesh Negi is seeking anticipatory bail in F.I.R./Case Crime No. 0139 of 2024, under Sections 120-B, 420, 467, 468, 471, 504 & 506 IPC, Police Station Raipur, District Dehradun.

2. Heard learned counsel for the parties and perused the record.

3. Learned State Counsel would submit that applicant has an equally efficacious remedy available to file the anticipatory bail application before the Sessions Court but instead of approaching the Sessions Court, the applicant/accused has directly come before this High Court without exhausting equally efficacious remedy available before Sessions Court.

4. Learned counsel for the State would further submit that the issue regarding entertainability of anticipatory bail application before the High Court u/s 438 of Cr.P.C. is pending consideration before the Hon’ble Supreme Court in Criminal Appeal No. 1562/2017 Gauhati High Court Bar Association v. State of Assam & Ors. wherein the issue raised before the Hon’ble Supreme Court is that “Whether the High Court exercising jurisdiction under Section 438 of the Code of Criminal Procedure, 1973 has discretion not to entertain such an application on the ground that the applicant must first apply to the Court of Sessions.”

5. Per contra, learned counsel for the applicant/accused would submit that the High Court and the Court of Sessions have concurrent jurisdiction under Section 438 of Cr.P.C. and the applicant/accused cannot be compelled to apply for anticipatory bail before the court of Sessions before approaching this High Court.

6. No doubt the High Court and the Sessions Court have concurrent jurisdiction u/s 438 Cr.P.C. This is also abundantly clear from the language of Section 438 of Cr.P.C. which says that any person who has reasons to believe that, he may be arrested on accusation of having committed a non-bailable offence, he may apply to High Court or the Court of Sessions for a direction under this Section, that in event of arrest he shall be released on bail. This means that High Court and Court of Session have concurrent jurisdiction to grant anticipatory bail for an offence. Hence, an application for grant of anticipatory bail directly in the High Court without first approaching Sessions Court is certainly maintainable. However, in considered view of this Court, the High Court hearing the application for anticipatory bail directly filed before it, always has discretion to entertain it or not or to direct the applicant to first move the Court of Sessions for anticipatory bail.

7. This Court cannot be oblivious of the fact that there is equally efficacious remedy available with the applicant/accused to file application seeking anticipatory bail before the Sessions Court at the first instance. If the anticipatory bail applications are entertained in each and every case in the High Court, without exhausting the remedy before the court of Sessions, it would result into flooding the High Court with cases for the relief which could have been granted by the Sessions Court and this Court will not be benefitted by the observations made by the Sessions Judge in the orders of rejections of the anticipatory bail application.

8. In view of the above, accused can certainly make an application for anticipatory bail before the High Court without first approaching the Court of Session but it is always open to the High Court, in such cases, either to exercise its discretion not to entertain such application for grant of anticipatory bail as equally efficacious remedy is available to the accused for anticipatory bail before the Court of Session or to entertain it considering the special facts and circumstances of that case.

9. In similar nature of case in Ankit Bharti vs. State of U.P. and Another and connected matters Criminal Misc. Anticipatory Bail Application No. 1094 of 2020, Five Judges Full Bench of Hon’ble Allahabad High court has pondered upon this issue and observed as under:

“21. The special circumstances t