In the High Court of Judicature at Allahabad Criminal Misc. Anticipatory Bail Case No.: 1094 of 2020 Applicant Ankit Bharti Respondents State of U.P and anr. Date of Judgement 2nd March, 2020 Bench Hon’ble Mr. Justice Govind Mathur, Chief Justice Ramesh Sinha, Hon’ble Mr. Justice Sunita Agarwal, Hon’ble Mr. Justice Yashwant Varma, Hon’ble Mr. Justice Rahul Chaturvedi
Facts of the Case
In this case the learned Judge while referring the matter to this Full Bench expressed certain reservations with respect to the answers rendered in Vinod Kumar while dealing with the question of what would constitute “special circumstances” enabling an applicant to approach the High Court directly by way of a petition under Section 438 of the Criminal Procedure Code.
“Harendra Singh leaves a window open with the learned Judge observing that requiring the party to invoke the jurisdiction conferred on a Court of Sessions must be recognized as the normal course and the High Court entitled to be moved only in extraordinary circumstances and special reasons. The learned Judge further went on to observe in the ultimate conclusion drawn that for “extraneous” (sic) or special reasons the High Court could also exercise the powers conferred by Section 438 CrPC. notwithstanding the Court of Sessions having not been moved. What appears upon a holistic reading of that decision is the intent of the learned Judge to convey the duty of the applicant approaching the High Court to establish the existence of exceptional and special circumstances. The only clarification which, therefore, would merit being entered is with regard to the requirement of proving the existence of extraordinary or exceptional circumstances. The words “exceptional” or “extraordinary” are understood to mean a typical, rare, out of the ordinary, unusual or uncommon. If the jurisdiction of the Court as conferred by Section 438 CrPC. be circumscribed or be recognized to be moved only in exceptional situations it would again amount to fettering and constricting the discretion otherwise conferred by Section 438 CrPC. Such a construction would perhaps run the risk of being again viewed as being in conflict of the statutory mandate and the discretion conferred. In the considered view of the Court what the learned Judge did seek to convey and hold in Harendra Singh was the requirement of establishing the existence of special, weighty, 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.
(i) Whether the Court would have no jurisdiction to reject the anticipatory bail after considering the grounds of compelling reasons mentioned in the affidavit being found not appealing, which would amount nothing but to approach this Court directly;
(ii) Whether amongst the grounds which have been enumerated in the judgment in the case of Vinod Kumar (supra), the ground at Serial (A) requires any reconsideration so as to preclude the co-accused approaching this Court directly in case the other co-accused’s regular bail/anticipatory bail is rejected by the Court of Sessions and whether he be also subjected to filing such an affidavit, showing therein the circumstances in which he had to feel compelled to approach this Court directly;
(iii) Whether amongst the grounds which have been enumerated in the judgment in the case of Vinod Kumar (supra), the ground at Serial (B) requires any reconsideration as to whether an accused, who is not residing within the jurisdiction of the Sessions Court concerned, faces a threat of arrest, should be allowed to approach the High Court directly, to move an anticipatory bail application by the logic given above in Para 6 of this judgment; and
(iv) Whether such anticipatory bail applications which do not contain any compelling reason to approach this Court directly, should be entertained.
References to Sections and Cases
The Reference came to be made in the backdrop of the decision rendered in Vinod Kumar Vs. State of U.P. and another2 in which a learned Judge framed the following questions for consideration:-
“A. The nature of the concurrent jurisdiction conferred by Section 438 CrPC.
B. Whether parties should be commended to necessarily approach the Sessions Court first before invoking the jurisdiction of this Court under Section 438 CrPC C. In what circumstances can the High Court be approached directly under Section 438 CrPC.
D. Exceptional or Special circumstances.
E. The perceived conflict between the decisions rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P.1 and Neeraj Yadav And Another Vs. State of U.P.2 F. Impact of the Explanation to Section 438(2) CrPC.
G. The period for which anticipatory bail should operate.”
Upon due consideration of the decisions rendered on the subject by the Court as well as those rendered by different High Courts of the country, the following conclusions came to be recorded:
“A. 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.
B. 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.
C. 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 recognized 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.
D. 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.
E. While the Explanation may have created an avenue for an aggrieved person to challenge an order passed under Section 438(1), it cannot be construed or viewed as barring the jurisdiction of the High Court from entertaining an application for grant of anticipatory bail notwithstanding that prayer having been refused by the Court of Sessions.
F. Till such time as the question with respect to the period for which an order under Section 438 Cr.P.C. should operate is answered by the Larger Bench, the Court granting anticipatory bail would have to specify that it would continue only till the Court summons the accused based on the report that may be submitted under Section 173(2) Cr.P.C. where after it would be open for the applicant on appearance to seek regular bail in accordance with the provisions made in Section 439 Cr.P.C.”
These and other relevant factors would clearly constitute special circumstances entitling a party to directly approach the High Court for grant of anticipatory bail.”
While dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn, L. C. said in Hyman v. Rose:
“I desire in the first instance to point out that the discretion given by the section is very wide……….. Now it seems to me that when the Act is so express to provide a wide discretion… it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the court wish it had kept a free hand.
Dealing then with the nature of the foundation that must be laid in an application for anticipatory bail, the learned Judge held: –
“133. Having regard to the above discussion, it is clarified that the court should keep the following points as guiding principles, in dealing with applications under Section 438, Cr. PC:
(a) As held in Sibbia, when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based on concrete facts (and not vague or general allegations) relatable to a specific offence or particular offence. Applications for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. These are important for the court considering the application, to extent and reasonableness of the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not a necessary condition that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.”
Question (i) and (iv) clearly do not merit any elucidation for it is for the concerned Judge to assess whether special circumstances do exist in a particular case warranting the jurisdiction of the High Court being invoked directly. And answer Questions (ii) and (iii) in the negative and hold that Vinod Kumar does not merit any reconsideration or further explanation. It would be for the concerned Judge to form an opinion in the facts of each particular case whether special circumstances do exist and stand duly established.
“The views of the authors are personal“