TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 1609
X X X X Extracts X X X X
X X X X Extracts X X X X
....as been raised before this Court by the learned High Court Government Pleader that the petitioners without exhausting the remedy u/s.438 of Cr.P.C. before the jurisdiction Sessions Court, has directly approached this Court. Therefore, the petition is not maintainable and the petitioners have to be relegated to the Court of Sessions first and then they can approach this Court. In this background, the legal question that arises for consideration of this Court is that - "Whether the Petition filed u/s.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?" 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, after taking into consideration, inter alia, the following factors, namely - (i) the natu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....und, now let me consider the various rulings relied upon by the parties. 9. The learned counsel for the petitioners relied upon a decision reported in ILR 2002 KAR 3308 between N.B. BUNGARAKOPPA VS. STATE OF KARNATAKA, wherein this Court has observed while disagreeing with the learned Single Judge's judgment to the effect that the powers u/s.438 of Cr.P.C. has to be restricted to High Court particularly under certain circumstances. Disagreeing with the observation made by the learned Single Judge, the Division Bench has opined that in cases of anticipatory bail, the relief has to be speedily obtained which means with the closest judicial authority namely the Court of Sessions, which is accessible and this would not be the case if the applicants are restricted to the High Court. The real remedy would be to ensure that when such a petition is filed before the Court of Sessions, the Court is put on caution and that the Court applies its mind very carefully and judiciously realizing the fact that it is a responsible Court. 9(a). In the above said ruling, the point that has been raised before this Court has not been considered. But, it is only stated that the party can approach th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by S. 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: S. 437 which deals with the power of Courts other than the Court of Sessions and the High Court of grant bail in non-bailable cases and S. 439 which deals with the "special powers" of the High Court and the Court and the Court of Sessions regarding bail. The whole of Section regarding bail. The whole of Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail." Further, the Hon'ble Apex Court has also observed that Section 438 is a departure Section fro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on hand. The Hon'ble Apex Court mainly concentrated on the criticism made by the High Court on C.B.I but not dealt with the concurrent Jurisdiction, and no law as such has been laid down. 10. Though the Hon'ble Apex Court has made certain observations with regard to the jurisdiction of the High Court but the very question that has been raised before this Court has not been specifically answered. Though in categorical term, the Supreme Court has said that the jurisdiction of the High Court and Sessions Court u/s.438 of Cr.P.C. are concurrent in nature and it is the special powers given to the High Court and the Court of Sessions for grant of anticipatory bail and there can't be any restrictions on the discretion of the Court which are not engrafted in the section. 11. Now, coming to the rulings relied upon by the State. The learned High Court Government Pleader has also relied upon various decisions in this regard. 12. It is worth to mention here the decision of this Court in Criminal Petition No.4258/2012 and other connected matters between Shri C.P. Yogeshwara and others Vs. Serious Fraud Investigation Office, dated 1.3.2013, wherein this Court relying upon various ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arty 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 petition. 14. In a ruling of the Gauhati High Court in BA No.3024/2014 between Sri Kwmta Gwra Brahma Vs. State of Assam, the Division Bench has also expressed similar view and held that the party has to approach the Court of Sessions first u/s.438 of Cr.P.C. and he can later approach the High Court. 15. As could be seen from the various decisions cited by the learned High Court Government Pleader of different High Courts, they have also taken the similar view that the parties have to approach the Sessions Court first and after exhausting the remedy they can approach the High Court but for the special reasons, they can also approach the High Court. 16. This Court in K.C. Iyya Vs. State of Karnataka as noted supra, has dealt with this provision and also t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he risk that, the other remedy is not available to him if he failed to get the order in the High Court, he cannot go before the Sessions Court for the same remedy. However, vice versa is possible. 20. It is also to be notable that the Sessions Court will always be nearest and accessible Court to the parties. More over, considering the work load of the courts in the country, the superior courts particularly, the High Courts are flooded with heavy pendency of cases. In order to facilitate the other parties who come before the Court with other cases before the High Court (which has got exclusive Jurisdiction) and also in order to provide alternative remedy to the parties, it is just and necessary that the party shall first approach the Sessions Court u/s.438 of Cr.P.C. so that the High Court can bestow its precious time to deal with other pending cases which 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. 21. The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going thro....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... I answer the point raised as follows: "The bail petition filed u/s.438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision." 26. Having held in such manner, now let me see whether the petitioner has approached this Court with any such extraneous or special reason. 27. Now, coming to the factual matrix of this case, it is the case of the prosecution, as could be seen from the charge sheet papers, a lady by name Smt. Vijaya Lakshmi lodged a complaint that she was married to one Venkateshwara Rao and they were residing together at 4th cross, Gandhipuram, Whitefield, Bengaluru City. They were blessed with two children. A1 - Ravichandra was often visiting the house of the complainant and he used to talk with her and her husband and her husband also very closely moving with him and he was attempting to closely move with the victim lady also. Though earlier she was reluctant, but later, it appears they developed intimacy with each other. This illicit inti....