Sec 438 CrPC | Can HCs Refuse To Entertain Anticipatory Bail Pleas For Not Exhausting Sessions Court Remedy? Supreme Court To Consider

“The issue raised in this appeal is whether the High Court exercising jurisdiction under Section 438 has discretion not to entertain such an application on the ground that the applicant must first apply to the Court of Sessions. In our view, a decision on the aforesaid issue would have wide ramifications.”

The central issue in this controversy is whether a high court has the discretion to refuse to entertain anticipatory bail pleas where the applicants have not moved the sessions court first. Different high courts have in the past cautioned people in apprehension of arrest against approaching them directly, in the absence of special circumstances. In March 2020, a five-judge bench of the Allahabad High Court clarified that a person could move the high court for anticipatory bail without approaching a sessions court first under ‘special circumstances’. In the same vein, the Jammu and Kashmir and Ladakh High Court also ruled that although Section 438 gave concurrent jurisdiction to high courts and sessions courts to consider anticipatory bail applications, as a matter of ordinary practice, such applications would not be entertained by the high courts unless the person apprehending arrest has exhausted the remedy before the sessions court or there existed exceptional circumstances.

The top court further agreed to implead the union government in this appeal arising out of the state of Assam, at the behest of the counsel for the appellant, i.e., the Gauhati High Court Bar Association. It held, “Let notice of the appeal be served on the office of the Solicitor-General for India, returnable after six weeks. In the meantime, liberty is granted to serve the Advocate-on-Record representing the central agency.”

Case Title : Gauhati High Court Bar Association v. State of Assam & Ors. | Criminal Appeal Nos. 1562 of 2017

Citation : 2023 LiveLaw (SC) 177

Code of Criminal Procedure 1973- Section 438 - Is it necessary to exhaust remedy available in Sessions Court before approaching High Court?- Whether the High Court exercising jurisdiction under Section 438 has discretion not to entertain such an application on the ground that the applicant must first apply to the Court of Sessions- SC to consider

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