Parmeshwar v. State of U.P. and Another

Court No. - 1 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55047 of 2019

Applicant :- Parmeshwar

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Pradeep Kumar

Counsel for Opposite Party :- G.A.,Ramesh Kumar Singh

Hon'ble Ramesh Sinha,J.

Heard Sri Pradeep Kumar learned counsel for the applicant, Sri Irshad Husain, learned A.G.A for the State and perused the record.

By means of present 438 Cr.P.C application, the applicant prayed for grant of anticipatory bail in Case Crime No. Case Crime No. 878 of 2019 under Section 408 IPC (State Vs.Rishabh Srivastava and others) P.S. Cantt., District Gorakhpur.

Learned AGA opposed the prayer for anticipatory bail and pointed out that the applicant has directly approached this Court for seeking anticipatory bail without approaching the Court of Sessions. On a pointed query made from learned counsel for the applicant he states that he has disclosed the reason for directly approaching this Court in paragraph no. 13 of the bail application which is reproduced here below:-

"That in pursuance of impugned first information report the concerned police reached the house of the applicant on 05.11.2019 for arrest to the applicant, so it is apprehension to the applicant the Police have arrested in the present case, so the applicant prayed to this Hon'ble Court kindly grant anticipatory bail during pendency of investigation or during pendency of present anticipatory bail before this Hon'ble Court." I am of the considered opinion that to entertain an anticipatory bail application of the accused directly to this Court, there should be compelling special circumstances or special reason apart of other reasons to show that even the counsel for the Neutral Citation No. - 2020:AHC:20916

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accused/ applicant has no or limited access to the Court of Session for filing anticipatory bail application or is out of reach meaning thereby that the working of the Court below is paralysed or the normal life of the city is so disturbed that neither accused nor is counsel could reach the Court of Session for filing anticipatory bail application, any such other similar situation or any other unapproachable or avoidable situation. Moreover, the object with which the legislature has conferred concurrent power to Court of Session under Section 438 Cr.P.C. along with High Court would not be meaningful if the accused is allowed to approach to this Court directly in routing manner for anticipatory bail.

Even the Full Bench of this Court in the case of Onkar Nath Agrawal and others. Vs. State reported in 1976 (2) ALR 149 and 1976 Crl. L.J. 1142 has therefore, left open to the Judge to exercise his discretion for entertaining the anticipatory bail application directly to High Court according to exigencies of each case. The relevant paragraphs. 8 and 12 of the said judgment in this regard are to be taken note of which are reproduced here-in-below:-

"8. It may, however, be mentioned that inasmuch as Section 438 of the Code of Criminal procedure, 1973 give discretionary power to grant bail, this discretion is to be exercised according to the facts and circumstances of each case. There may be cases in which it may be considered by the High Court to be proper to entertain an application without the applicant having moved the Court of Session initially. Similarly there may be cases in which the Court may feel justified in asking the applicant to move the Sessions Court or to refer the matter to that Court. In any case all depends upon the discretion of the judge hearing the case.

12. We are, therefore, of the view that the Courts should have unfettered discretion in the matter of bail under Section 438, Criminal P.C. to be exercised according to the exigencies of each case. The reason referred above by the applicant for directly approaching this Court with the prayer to grant anticipatory bail is not at all convincing as the same cannot be said to be a

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special circumstance or special reason or any such situation which may compel this Court to exercise it's discretion to entrain the present application for anticipatory bail directly without availing the remedy before the Court of Session in the present case.

Thus the application is, accordingly, rejected on this ground along with liberty to approach the Court of Session first for anticipatory bail in the present case.

Order Date :- 31.1.2020 Nadeem Ahmad

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