IN THE HIGH COURT OF ORISSA AT CUTTACK

ABLAPL No. 5275 of 2021

Nrusingh Sutar and others

….

Petitioners

Mr.S. Mohanty, Advocate

-versus-

State of Odisha

….

Opposite Party

Mr. J.Katikia,

Additional Standing Counsel

CORAM:

JUSTICE S. K. PANIGRAHI

Order No.

ORDER

26.04.2021

02

1.

This

matter

is

taken

up

by

video

conferencing mode.

2.

This is an application under Section 438 of

the Cr. P.C..

3.

Heard learned counsel for the petitioners

and learned counsel for the State.

4.

The petitioners herein are apprehending

arrest in G.R. Case No 235 of 2021 arising out of

Rajkanika P.S. Case No.124 of 2021 on the file of

learned J.M.F.C.,Aul, Kendrapara for commission

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Page 2 of 12

of offences under Sections 341/294/ 307/354/34

of the Indian Penal Code.

5.

Without going into the merits of the present

petition filed by the petitioners under Section

438, Cr. P.C. seeking direction for pre-arrest bail,

this Court is to observe first that whether the

petition

under

Section

438

Cr.

P.C.

is

maintainable

before

this

Court

without

exhausting remedy under the said provision

before

the

Court

of

Sessions

which

has

concurrent jurisdiction.

6.

The provisions of bail create a balance

between the personal liberty of an accused and

the interest of the society. Bail is a matter of right

in bailable offences as provided under Section

436 of the Cr. P.C. and a matter of judicial

discretion in non-bailable offences under Sections

437 and 439 of Cr.P.C. Where bail under Sections

436, 437 and 439 Cr. P.C. can be granted only

after an arrest. On the other hand Section 438

Cr. P.C. provides for a pre-arrest bail which is

commonly known as Anticipatory Bail.

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Page 3 of 12

7.

A plain reading of Section 438 Cr.P.C.

necessitates an immediate conclusion that the

jurisdiction conferred on the High Court and the

Sessions

Court

for

entertaining

prayer

for

anticipatory

bail

is

concurrent

in

nature.

However, the controversy as to whether the

application would be maintainable before the

High Court only after exhaustion of the remedy

before the Sessions Court has been posed before

different High Courts in plethora of cases.

8.

A bare perusal of the Section 438 of Cr. P.C.

which 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

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Page 4 of 12

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 present question.

9.

Upon a plain reading of the provision under

Section 438 of Cr. P.C., it is crystal clear that it

confers concurrent jurisdiction on the High Court

as well as on the Court of Sessions. The wide

discretion has been entrusted on the Court of

Sessions as well as on the High Court to enlarge

such per