Court No. - 69
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 18278 of 2021 Applicant :- Shripal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Santosh Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
By means of present 438 Cr.P.C. application, the applicant has prayed for to grant anticipatory bail to the applicant in case crime no. 181 of 2021, u/s 380 IPC, P.S. Kunwar Gaon, District - Budaun.
The present anticipatory bail application has been preferred before this Court directly without approaching the Session Court first and no special fact or circumstance has been shown by the learned counsel for the applicant for straightway invoking the jurisdiction of this Court under Section 438 Cr.P.C. 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 routine 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 paragraph nos. 8 and 12 of the said judgement 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 gives a 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 applicants having moved the Court of Session initially. Similarly there may be cases in which the Court may feel justified in asking the applicants 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 an unfettered discretion in the matter of bail under Section 438, Criminal P. C. to be exercised according to the exigencies of each case."
Thus the application is, accordingly, rejected on this ground alone with liberty to approach the Court of Session first for anticipatory bail in the present case.
Order Date :- 16.12.2021 LBY