TaxTMI 
TaxTMI 
2019 (7) TMI 1812
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....ration of this Court is that- "Whether the application filed under Section 438 of Cr.P.C., is maintainable before the High Court without exhausting remedy under the said provision before the Court of Sessions which has concurrent jurisdiction with that of the High Court?" 4. Section 438 of Cr.P.C., 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 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 appl....
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....om the provision itself, there is no embargo or any rider or any condition incorporated under the provision that the person who approaches the High Court must first exhaust the said remedy before the Court of Sessions. In fact, under the provision, chronologically, High Court is mentioned first and thereafter, Court of Sessions is mentioned. 8. Learned counsel for the applicant in this regard submitted that this Court cannot direct the party to approach the Sessions Court to exhaust the remedy when, it is not contemplated under the provisions itself. He need not establish any extraordinary circumstances to approach the concurrent jurisdiction of the High Court. In this regard, he has relied upon several rulings. 9. Per contra, learned A.G.A., has also relied upon various rulings and submitted that though the High Court has got concurrent jurisdiction under Section 438 of Cr.P.C., but as a matter of practice, the party has to approach the Sessions Court first, for his remedy and then he can approach High Court under Section 438 of Cr.P.C., after exhausting such remedy. He further submits that if a party directly approaches the High Court, he has to establish extraordinary or speci....
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....tion from 437 and 439 of Cr.P.C. The provisions of Sections437 and 439 of Cr.P.C., furnish a convenient model for the legislature to copy while enacting Section 438 of Cr.P.C. "The provisions of Ss. 437 and 439 furnished a convenient model for the legislature to copy while enacting S. 438. If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully: Advisedly, at least in part, because of the 41st Report of the Law Commission, which, while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Sessions to grant anticipatory bail, said in Para. 39.9 that it had "considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted but had come to the conclusion that the question of granting such bail should be left "to the discretion of the Court" and ought not to be fettered by the statutory pr....
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....tate of Karnataka and another; 2002 CRL. LJ 1998, the Karnataka High Court has re-iterated the abovesaid principles and ultimately held that the application filed under Section 438 of Cr.P.C., directly to the High Court is maintainable only under exceptional and under special circumstances, but not as a routine and the party cannot come before the Court as a matter of right. 18. By looking into the abovesaid discussions, I am of the opinion that the party has to approach the Sessions Court first and then he has to approach the High Court which is the normal course. But the courts have also observed that in extraordinary circumstances with special reasons, the party can also approach the High Court. The High Court cannot entertain Section 438 of Cr.P.C., as a matter of routine without examining whether there are any special reasons or special circumstances to entertain the said application. 19. In the case of Sri Kwmta Gwra Brahma Vs. State of Assam (Bail No. 3024 of 2014), The Gauhati High Court has also expressed similar view and held that the party has to approach the Court of Sessions first under Section 438 of Cr.P.C., and he can later approach the High Court. 20. The intent....
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....requires serious attention and expeditious disposal, where the parties who have come to the High Court after exhausting remedy before the Magistrate Court or the Sessions Court for grant of bail and for other reliefs. 23. The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going through the entire materials on record. In that context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case, with expedition. 24. It is also worth to note here that the Sessions Court and the High Court are concurrently empowered to grant bail under Section 438 of Cr.P.C. The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviated the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far as the Sessions Courts are concerned. Even once again re-looking into structure of Section 438 of Cr.P.C., it is....