Court No. - 71
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 19488 of 2021 Applicant :- Chandra Bhan Verma And 2 Others Opposite Party :- State Of U.P Through Secretary Home And 2 Others Counsel for Applicant :- Amit Rai,Sarwam Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Deepak Verma,J.
Heard Sri Amit Rai, learned counsel for the applicants, Sri Abhishek Singh, learned Additional Government Advocate representing the State and perused the record of the case.
This Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. has been moved by the applicants, namely, Chandra Bhan Verma, Dilip Verma, Vijay Pal directly before this Court seeking Anticipatory Bail in Case Crime No.540 of 2021, under Sections 420 and 406 I.P.C., Police Station Kotwali, District Mainpuri, during pendency of investigation.
Learned AGA has raised preliminary objection that the present anticipatory bail application has been filed without availing alternative remedy available to the applicants to approach before the court of Sessions, in spite of remedy available, has directly approached before this Court.
Learned counsel for the applicants contends that he has explained the reason in para 5 of affidavit of bail application for direct approaching before this Hon'ble Court that applicant Nos.1 and 2 are belong to District Sultanpur and applicant No.3 belongs to District Faizabad and the FIR has been lodged in District Mainpuri, as such, the accused not residing within the jurisdiction of the concerned Sessions Court and the applicants are facing threat and are under apprehension of their arrest, hence, the present anticipatory bail application has been filed before this Hon'ble Court. Further he has placed reliance of judgment of this Court passed in the case of Ankit Bharti vs. State of U.P. and another, reported in 2020 (3) ADJ 575 (FB) and referred to para 26(B) of the judgment, the same is quoted hereinbelow:-
"26(B) Where an accused not residing within the jurisdiction of the concerned Sessions Court faces a threat of arrest;"
In reference to the aforesaid judgment, it is stated that the accused persons are not residing within the jurisdiction of the concerned Sessions Court and there is threat of arrest, as such, approached directly to this Hon'ble Court without approaching the court of Sessions.
Per contra, learned AGA for the State has argued that in the Full Bench judgment of this Hon'ble Court, as referred to above, has considered the question referred by Hon'ble Judge for consideration, the following questions were referred for consideration before Full Bench.
"(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."
Reason assigned by the applicant for approaching this Court has been formulated as question No.(iii) before Full Bench. Full Bench in para 22 of the judgment has given answer of question Nos.(i), (ii), (iii) and (iv), the same is quoted hereinbelow:_ "In light of the aforesaid, we answer the Reference as follows: -
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. We 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 Full Bench consisting five Judges of this Court in the case of Ankit Bharti vs. State of U.P. and another, reported in 2020 (3) ADJ 575 (FB) has cleared the smog on the issue of concurrent jurisdiction for approaching at the first instant for anticipatory bail before High Court or Session Court and held that there must be compelling or special circumstances entitling a party to directly approach the High Court for grant of anticipatory bail.
In the light of above mentioned legal position, first of all this Court has to determine whether the applicants, who approached this Court directly seeking anticipatory bail have made out a case of compelling or special circumstances for entertaining this application.
After perusing the entire record, I find that in the instant anticipatory bail application, applicants have not mentioned any compelling or special circumstance to approach this Court directly without the avenue as available before the court of sessions being exhausted.
In view of above, in the opinion of this Court, no compelling or special circumstances exist in the present case warranting the jurisdiction of this Court being invoked directly without the avenue as available before the court of sessions being exhausted.
Lastly, learned counsel for the applicants submitted that the applicants do not want to press the present anticipatory bail application and the same may be rejected as withdrawn with liberty to the applicants to file an appropriate application before the court concerned.
Learned Additional Government Advocate does not have any objection to the aforesaid prayer of the counsel for the applicants.
From perusal of judgment on account of jurisdiction of Sessions Court concerned, is not a proper ground for approaching directly to the High Court without approaching court of Sessions.
In view of the above consideration and the reason given in para 5 of the bail affidavit, I do not find any good ground to entertain the present anticipatory bail application, accordingly, this anticipatory bail application is rejected as withdrawn with liberty to the applicants to approach the concerned court of Sessions.
Order Date :- 22.12.2021 Nitin Verma Digitally signed by Justice Deepak Verma Date: 2021.12.22 15:28:52 IST Reason: Document Owner Location: High Court of Judicature at Allahabad