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“The Court would be well advised to leave it to a judicious exercise of discretion in the facts of each cause brought before it", a Constitution Bench of the High Court said.
A five judge Bench of the Allahabad High Court recently took a call against defining the special circumstances in which a person may approach the High Court directly for the grant of anticipatory bail, without first moving the Sessions Court (Ankit Bharti and ors v. State of UP and anr.).
The Bench of Chief Justice Govind Mathur and Justices Ramesh Sinha, Sunita Agarwal, Yashwant Varma and Rahul Chaturvedi also added,
“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.”
Allahabad High Court
In 1976, a three-judge Bench of the High Court had already ruled that the High Court and the Sessions Courts have concurrent jurisdiction to grant anticipatory bail in the case of Onkar Nath Agarwal and others v. State.
In that case, a three-judge Bench of the High Court referred to Section 438 of the Code of Criminal Procedure (CrPC) to hold,
“Both the jurisdictions are concurrent and it is left for the person to choose either of the two. The second part enables the High Court or the Court of Session, as the case may be, to give a direction for his release. The provision read as a whole does not prima facie create any bar that he must apply to the Court of Session first before coming to the High Court to seek has redress.”
In 2019, Justice Yashwant Varma held that the High Court can be so approached directly for anticipatory bail, only if there are compelling and special circumstances, that justify the applicant’s decision to not approach the Sessions Court first.
In this backdrop, another single judge of the High Court made a reference to a full Bench of the Court, seeking clarifications on the subject, following the Vinod Kumar verdict.
The four questions framed for the consideration of the five-judge Bench constituted to answer the reference, were essentially oriented towards better defining the “special circumstances” in which a person can approach the High Court directly with an anticipatory bail plea, without first moving the Sessions Court.
On Monday, a Constitution Bench of the High Court concluded that there was no need for the reference, and that the Court had rightly refrained from exhaustively defining what would constituted as “special circumstance” in the Vinod Kumar case.
“… the learned Judge chose, and in our opinion correctly, to observe that it would be imprudent to exhaustively chronicle what would constitute special circumstances”, the Constitution Bench said.
The Court further observed,
“There can never be an encyclopedic exposition as to what would constitute special circumstances. The grounds on which a petition for anticipatory bail may be instituted before the High Court can neither be placed in a straightjacket nor can be comprehensively enumerated. Decades ago the Constitution Bench in Gurbaksh Singh Sibbia Vs. The State of Punjab had cautioned against any attempt to compendiously enumerate the myriad situations in which a petition for anticipatory bail may come to be moved.”
Allahabad High Court
The Court explained that it would be impossible to predict what such special circumstances could be. Therefore, “The Court would be well advised to leave it to a judicious exercise of discretion in the facts of each cause brought before it.”
The Court added that such a anticipatory bail plea should be entertained only on concrete facts relatable to specific offences and not on vague or general allegations, as highlighted in the Delhi High Court was of Sushila Aggarwal v. State [NCT of Delhi] and others.
“A bald assertion without requisite particulars was neither suggested as being sufficient to petition the High Court nor does such an assumption flow from that decision", the Bench observed.
The Court, therefore, concluded,
[Read the Order]