Section 438 CrPC provides that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. So it is clear from literal reading of this provision that Section 438 CrPC confers concurrent powers on HC and Sessions Court and a person can himself choose the forum.
In Barun Chandra Thakur vs. Central Bureau of Investigation , the Supreme Court dismissed an appeal against an order of the High Court granting anticipatory bail. Rejecting the contention of the appellants, the bench had observed thus: “Further, we cannot lose sight of the fact that this incident had received wide coverage in the media, both electronic and print. In fact, it can be said that there was a trial by media, therefore, when the private respondents have directly approached the High Court for grant of anticipatory/interim bail under Section 438 of the Code, that too when the High Court has concurrent jurisdiction, we cannot find any fault with the action of the private respondents.”
Though this judgment can be quoted to drive home the point that anticipatory bail can be directly filed before a High Court, it is to be noted that there is little discussion in the said judgment about the legal issue. But this question has come up before various High Courts.
Full Bench Judgments
Five Judges Bench
Calcutta HC
In Sudip Sen vs The State Of West Bengal 2010 CriLJ 4628 : A person has a right to move either the High Court or the Court of Session for directions under Section 438 Cr. P.C. at his option. However, if a person chooses to straightway move the High Court in the first instance and his application is rejected on the same set of facts and circumstances, he will not be entitled to move the Court of Session for the second time.
Allahabad HC
Onkar Nath vs. State, 1976, Crl.LJ 1142: The Courts should have an unfettered discretion in the matter of bail under Section 438, Criminal P. C. to be exercised according to the exigencies of each case – We may also add that there is no authority in support of the contention that the ‘practice of convenience’ recognised in Shailabala’s case in respect of revisions is applicable to bail or anticipatory bail and that the discretion of the Court Should be fettered by such a practice.
However, relying on this judgment and also referring to various other judgment, a single bench of Allahabad HC held as follows in Vinod Kumar vs State of U.P. and another, :
- Section 438 Cr.P.C. on its plain terms does not mandate or require a party to first approach the Sessions Court before applying to the High Court for grant of anticipatory bail. The provision as it stands does not require an individual first being relegated to the Court of Sessions before being granted the right of audience before this Court. Notwithstanding concurrent jurisdiction being conferred on the High Court and the Court of Session for grant of anticipatory bail under Section 438 Cr.P.C., strong, cogent, compelling and special circumstances must necessarily be found to exist in justification of the High Court being approached first without the avenue as available before the Court of Sessions being exhausted. Whether those factors are established or found to exist in the facts of a particular case must necessarily be left for the Court to consider in each individual matter.
- The words “exceptional” or “extraordinary” are understood to mean atypical, rare, out of the ordinary, unusual or uncommon. If the jurisdiction of the Court as conferred by Section 438 Cr.P.C. be circumscribed or be recognised to be moved only in exceptional situations it would again amount to fettering and constricting the discretion otherwise conferred by Section 438 Cr.P.C. Such a construction would be in clear conflict of the statutory mandate. The ratio of Harendra Singh must be recognised to be the requirement of establishing the existence of special, weighty and compelling reasons and circumstances justifying the invocation of the jurisdiction of this Court even though a wholesome avenue of redress was available before the Court of Sessions
- What would constitute “special circumstances” in light of the nature of the power conferred, must be left to be gathered by the Judge on a due evaluation of the facts and circumstances of a particular case. It would be imprudent to exhaustively chronicle what would be special circumstances. It is impossible to either identify or compendiously postulate what would constitute special circumstances. Sibbia spoke of the “imperfect awareness of the needs of new situations”. It is this constraint which necessitates the Court leaving it to the wisdom of the Judge and the discretion vested in him by statute.
This view has been upheld by a Full Bench in re: Ankit Bharti & others vs. State of U.P. & others 2020 LawSuit (All) 384 , wherein it was held thus:
- The decision in Vinod Kumar does not merit any reconsideration or explanation. As rightly held in that decision, there can be no exhaustive or general exposition of circumstances in which an applicant may be held entitled to approach the High Court directly. The Court would clearly err in attempting to draw a uniform code or dictum that may guide the exercise of discretion vested in the Court under Section 438 of the Criminal Procedure Code. The discretion wisely left unfettered by the Legislature must be recognised as being available to be exercised dependent upon the facts and circumstances of each particular case. The contingencies spelled out in Vinod Kumar as illustrative of special circumstances may, where duly established, constitute a ground to petition the High Court directly.
- The special circumstances the existence of which have been held to be a sine qua non to the entertainment of an application for anticipatory bail directly by the High Court must be left for the consideration of the Hon’ble Judge before whom the petition is placed and a decision thereon taken bearing in mind the facts and circumstances of that particular cause. However special circumstances must necessarily exist and be established as such before the jurisdiction of the High Court is invoked. The application must rest on a strong foundation in respect of both the apprehension of arrest as well as in justification of the concurrent jurisdiction of the High Court being invoked directly. The factors enumerated in Vinod Kumar including (A) and (B) as constituting special circumstances do not merit any review except to observe that the existence of any particular circumstance must be convincingly established and not rest on vague allegations.
Three Judges Bench
Himachal Pradesh
Mohan Lal vs Prem Chand AIR 1980 HP 36 : Persons can apply for anticipatory bail to the High Court direct without first invoking the jurisdiction of the Sessions Judge – In the case of anticipatory bail to force a person to move the Sessions Judge first may result in uncalled for curtailment of his right. For various reasons a person may like to move the High Court straightway and may not like to: approach the Sessions Judge. Since the section relates to the liberty of a person, we would not like to impose any kind of restriction on his right to move thai High Court in the first instance.
Division Bench Judgments
Uttarakhand HC
Mubarik v. State of Uttarakhand and others, 2019(1) NCC 303 : The High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. It is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly.
Kerala HC
Balan vs State Of Kerala 2004 CriLJ 3427, 2003 (3) KLT 472 : The provisions of Sections 438 and 439 do not call for a restricted interpretation. The citizen has the right to choose. His application should be considered. Each case should be examined on its own merits. If it is found that the ground for grant of bail is not made out, the Court has the full jurisdiction to deny relief. Equally, if a case is made out the citizen’s liberty should not be allowed to be curtailed. However, we do not find any ground to deny the citizen’s right to choose the forum to approach the Court and to make a prayer. This is not warranted by the provision.
Andhra Pradesh HC
Y. Chendrasekhara Rao v. Y.V. Kamala Kumari, 1993 Crl.LJ. 3508 : It is not obligatory under Section 438 to move the Court of Session in the first instance. It is always open to this Court when an application is filed under Section 438, without first moving the Court of Session, to consider all the circumstances, and if the situation warrants, this Court can direct the party to move the Court of Session. Passing of such an order in consequence of exercise of discretion is different from insisting upon the party to move the Court of Session in the first instance as an inflexible rule of practice. The existing practice of the Registry in returning applications filed under Section 438 on the ground that the Court of Session is not moved in the first instance, is clearly impermissible in law.
Single Bench Judgments
Bombay HC
Mohanlal Nandram Choudhari vs State Of Maharashtra 2007 CriLJ 4656, 2007 (4) MhLj 9: Though an application for anticipatory bail filed directly to the High Court is maintainable, the High Court should ordinarily not entertaining such application unless exceptional reasons are made out – There is no reason for this Court to depart from the practice consistently followed by this Court ordinarily to refuse the application filed under of the Code directly to this Court. Although jurisdiction under of the Code is original jurisdiction and jurisdiction under of the Code is a part of appellate jurisdiction, the same would not make any difference for deciding the issue involved in the matter. (Followed in a 2021 order of the High Court)
Karnataka HC
Savitri Samso vs. State of Karnataka, 2001 CriLJ 3164 : Although the High Court has concurrent jurisdiction with Sessions Court to grant bail, it is desirable that the ordinary practice should be that the lower Court should be first moved in the matter, though in exceptional case and special circumstances, the High Court may entertain and decide an application for bail either under Section 438 or 439 of the Cr. P.C. This is specially important because any expression of opinion by the superior Court, is likely to prejudice if not frequently, in cases few and far between, the trial in the lower Court. Hence, in my view, it is only in exceptional circumstances that an application for bail should be made directly to the High Court and in the absence of special circumstances the application should not be entertained by the High Court. By looking into analogous provision in the Code it is normally to be presumed that the Court of Sessions would be first approached for grant of bail, unless an adequate case for not approaching that Court has been made out.I am of the opinion that it would be a sound exercise of judicial discretion not to entertain each and every application for either anticipatory or regular bail directly by the High Court bypassing the Court of Sessions.
Madhya Pradesh HC
Manisha Neema vs State Of M.P. 2003 (2) MPHT 303 : Referred to (1) Dany alias Raju v. State of M.P. (1989 JLJ 323), (2) Abdul Rashid Khan v. State of M.P. [1993 (1) MPWN Note 35] and (3) Madan Mohan Kichloo v. State of M.P. and Anr. [1996 (II) MPJR 400 – the applicant should have filed the application at the first instance before the Court of Session and thereafter, if it was rejected, he could have approached this Court.