Chhote Khan vs State of M.P.

Sheel Nagu, J.—The Registry has raised an objection as to maintainability of this bail application on the ground that the applicant without first approaching the Sessions Court has directly filed this bail application before this Court u/s 438, Cr.P.C. A perusal of the provisions contained in Sections 438 and 439 of Cr.P.C. clearly indicate that concurrent powers are vested in the High Court as well as the Sessions Court, permitting the applicant concerned to choose his Forum without compelling him to first approach the Sessions Court.

The insistence of approaching the Court lower in the hierarchy of Courts is for the sake of convenience and to ensure the advantage to the High Court of availability of a reasoned order of rejection of bail by the Sessions Court. Such a course of procedure adopted for the sake of convenience ensures proper administration of justice at the level of the High Court, which is not only benefited by the availability of the reasoned order of the Sessions Court, but is also prevented from getting overburdened by directly filing bail application before it.

The above said view finds support in an earlier decision of this Court in Single Bench in the case of Manisha Neema Vs. State of MP reported in 2003 (2) MPLJ 557, which has considered various earlier judicial pronouncement on the point. The decision of the Full Bench of Calcutta High Court in the case of Sudip Sen vs. State of West Bengal reported in (2010) 4 Cri.LJ. 4628 and another decision of in the case of In Re: Puritipatti Jega Reddy, are being profitably quoted in support of the proposition that the statute does not bar filing of bail applications directly to the High Court u/s 438/439 of Cr.P.C., but it is only for the sake of convenience as stated above that the course of action of insisting the person concerned to approach the Court lower in the hierarchy of Courts is adopted to enable High Court to have the advantage of availability of a reasoned order of the Sessions Court.

Having thus held the power of this Court and Sessions Court for taking cognizance of bail applications u/Ss. 438 and 439, Cr.P.C. to be concurrent and the availability of statutory right of applicant to choose his forum, this Court deems it appropriate to impose certain conditions on applications filed directly before this Court, so as to prevent flood of such bail applications. Consequently the following conditions are imposed to regulate the filing of such direct bail applications.

Accordingly, the objection raised by the Registry is overruled subject to the fact that :-

1) Whenever an application u/s 438/439, Cr.P.C. is filed directly to the High Court without first approaching the Sessions Court, the bail application should contain the special, emergent and extraordinary, convincing reasons for doing so;

2) Whenever such directly filed bail applications are received by the Registry containing the special, emergent and extraordinary convincing reasons, then the same should be separately marked in the cause title as direct bail applications;

3) In case directly filed bail applications do not contain any such special, emergent and extraordinary convincing reasons, then the Registry should list the same alongwith an endorsement or objection in regard to maintainability of the same.

Since the case diary is now available with the counsel for State, this Court is of the view that though no special, emergent and extraordinary convincing reasons are shown in the instant bail application for directly approaching this Court without first filing the application before the Court of Sessions, this Court is of the view that this matter can be finally heard in the next week.

List the case for final hearing in the next week.