Court clarifies choice between High Court and Sessions Court for anticipatory bail under Section 438 Cr.P.C.

The Court clarified that Section 438 Cr.P.C. allows parties to choose between approaching the High Court or the Sessions Court for anticipatory bail without a requirement to first go to the Sessions Court. The High Court can entertain applications directly in exceptional circumstances, not as a routine practice. Special circumstances, like rejected bail for a co-accused or immediate protection needs, may warrant direct High Court intervention. The Explanation to Section 438(2) does not restrict the High Court's jurisdiction, and anticipatory bail should last until the accused is summoned by the Court. In this case, the application for anticipatory bail was denied due to a lack of specific allegations or fear of arrest.

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Issues Involved:
1. The nature of the concurrent jurisdiction conferred by Section 438 Cr.P.C.
2. Whether parties should be commanded to necessarily approach the Sessions Court first before invoking the jurisdiction of the High Court under Section 438 Cr.P.C.
3. In what circumstances can the High Court be approached directly under Section 438 Cr.P.C.
4. Exceptional or Special circumstances.
5. 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.
6. Impact of the Explanation to Section 438(2) Cr.P.C.
7. The period for which anticipatory bail should operate.

Detailed Analysis:

1. Nature of Concurrent Jurisdiction:
Section 438 Cr.P.C. confers concurrent jurisdiction on both the High Court and the Court of Sessions to entertain applications for anticipatory bail. This provision enables the party to exercise a choice of moving either the High Court or the Sessions Court without any statutory restriction on this choice. The Court emphasized that the statute does not mandate that the Sessions Court must be approached first before the High Court.

2. Necessity to Approach Sessions Court First:
The Court held that there is no statutory requirement for a party to first approach the Sessions Court before applying to the High Court for anticipatory bail. Although a practice has evolved of approaching the Sessions Court first, it is a matter of convenience and not a statutory mandate. The Full Bench in Onkar Nath Agrawal emphasized that the High Court has full jurisdiction to entertain applications for anticipatory bail without the applicant first moving the Court of Sessions.

3. Circumstances for Direct Approach to High Court:
The Court stated that while the High Court can entertain an application for anticipatory bail directly, it should be done in exceptional or special circumstances. The Court should not entertain such applications as a matter of routine and should examine whether special reasons or circumstances justify the application being considered by the High Court directly.

4. Exceptional or Special Circumstances:
The Court clarified that "exceptional" or "extraordinary" circumstances should be understood to mean atypical, rare, out of the ordinary, unusual, or uncommon. The discretion conferred by Section 438 Cr.P.C. should not be fettered by rigid rules. The Court provided examples of special circumstances, such as when bail of a co-accused has been rejected by the Sessions Court, or where immediate protection is warranted.

5. Perceived Conflict Between Decisions:
The Court found no irreconcilable conflict between Harendra Singh and Neeraj Yadav. Harendra Singh lays down the principle that the High Court can entertain applications for anticipatory bail directly in special circumstances, while Neeraj Yadav does not contradict this principle but rather emphasizes the need for establishing special circumstances.

6. Impact of the Explanation to Section 438(2) Cr.P.C.:
The Explanation to Section 438(2) Cr.P.C. clarifies that an order passed under sub-section (1) is not to be construed as an interlocutory order. This creates an avenue for challenging such orders but does not bar the High Court from entertaining an application for anticipatory bail even if it has been rejected by the Sessions Court. The absence of a provision similar to Section 397(3) Cr.P.C. in Section 438 indicates no legislative intent to bar the High Court's jurisdiction.

7. Period for Which Anticipatory Bail Should Operate:
The Court noted that the issue of the duration of anticipatory bail is pending before a Larger Bench of the Supreme Court. Until resolved, the Court held that an order granting anticipatory bail should continue only until the Court summons the accused based on the report under Section 173(2) Cr.P.C., after which the accused must seek regular bail.

Conclusion:
The Court concluded that Section 438 Cr.P.C. does not mandate approaching the Sessions Court first and that the High Court can entertain applications for anticipatory bail directly in special circumstances. The Explanation to Section 438(2) does not bar the High Court's jurisdiction, and the duration of anticipatory bail should be limited until the accused is summoned by the Court. The application for anticipatory bail in this case was refused due to a lack of specific allegations or apprehension of arrest.

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