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Judgment
Criminal Petition has been filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’) by the Petitioners/Accused Nos.1 & 2, seeking for grant of pre-arrest bail in connection with Crime No.113 of 2022 of Undrajavaram Police Station, West Godavari District, registered for the alleged offences punishable under Section 174 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’).
On several occasions, the learned counsel for the Petitioners sent notices to Respondent No.2; however, the same were returned unserved for one reason or another. The Station House Officer, Undrajavaram Police Station, has also not been able to serve notice on Respondent No.2. Since the matter has been pending for a considerable period and is now being taken up for hearing and disposal, Sri V.N.S.L. Sasidhar, learned counsel, is appointed as Legal Aid Counsel for Respondent No.2. The Secretary, High Court Legal Services Committee, is directed to issue the necessary proceedings in this regard.
Heard learned counsel for the Petitioners, learned Assistant Public Prosecutor and learned Legal Aid counsel for the Respondent No.2. Perused the record.
The Petitioners without approaching the learned Sessions Judge at the first instance seeking pre-arrest bail and has directly approached this Court, which procedure is contrary to the law laid down by the Hon’ble Apex Court in Mohammed Rasal.C v. State of Kerala1 and Jagdeo Prasad v. State of Bihar and others2.
The Hon’ble Apex Court in Mohammed Rasal.C v. State of Kerala3 wherein at paragraph Nos.7, 8 and 9 it was held as follows:-
“7.The Sessions Judge exercises powers under Section 438 Cr.P.C in relation to all cases registered with the police stations in the particular District. This area-wise distribution of work would make it much more convenient and facilitate expeditious disposal, if the application for pre-arrest bail is first filed before the Sessions Court which would have a direct and first-hand assistance of the concerned Public Prosecutor appointed for that particular District. The Sessions Court would also have an immediate access to the Case Diary thereby facilitating a better appreciation of facts of the case.
8.We further feel that if the practice of entertaining the applications for pre-arrest bail directly in the High Court is encouraged, and the parties concerned are not relegated to first approach the Sessions Court concerned, the High Court would be flooded with a spate of pre-arrest bail applications thereby creating a chaotic situation. We say so, because if the parties are required to approach the Sessions Court concerned for seeking remedy of pre-arrest bail, there is a strong probability that significant number of applications would be allowed at that level only thereby acting as a filtration process before the process reaches the High Court.
9.It is trite that in most of the States, there is a consistent practice requiring the litigant concerned to first approach the Sessions Court for seeking relief of pre-arrest bail and only in the event of denial of such relief, the litigant would be granted access to approach the High Court for seeking such relief. This is, of course, subject to just exceptions and the High Court, for reasons to be recorded, may entertain an application for pre-arrest bail directly in special/ extra-ordinary circumstances.”
The Hon'ble Apex Court in Jagdeo Prasad v. State of Bihar and others4, at para No. 6 as under:
"6.However, before parting, we do wish to express our sincere concern with the haste at which the High Court has dealt with this matter. While the scheme of Criminal Procedure Code, 1973 (now Bharatiya Nagarik Suraksha Sanhita, 2023) provides concurrent jurisdiction to the High Court and Sessions Court for entertaining applications for anticipatory bail, this Court has time and again observed that High Court should always encourage exhausting an alternative/concurrent remedy before directly interfering itself. This approach balances the interests of all the stakeholders, first by giving the aggrieved party a round of challenge before the High Court. Second, this approach provides the High Court an opportunity to assess the judicial perspective so applied by the Sessions Court, in concurrent jurisdiction, instead of independently applying its mind from the first go. Further, the High Court fails to record any reason for directly granting anticipatory bail without impleading the appellant-complainant as a party."
Albeit this Court has got concurrent jurisdiction under Section 482 of ‘the BNSS.,’ such discretionary relief would only be granted, when the Petitioner establishes a special case or extra ordinary circumstance. As seen from the averments, the Petitioners neither established a special case nor extra-ordinary circumstance. However, in view of the orders passed in Mohammed Rasal.C and Jagdeo Prasad supra, this Court is not inclined to exercise its discretionary power to grant pre-arrest bail to the Petitioner, as he has not approached the learned Sessions Judge concerned at first instance.
As seen from the record, initially, the case was registered under the caption of a suspicious death under Section 174 of ‘the Cr.P.C’. Subsequently, in the course of investigation, the prosecution added Section 306 of the Indian Penal Code, 1860 (for brevity, ‘the I.P.C’. The alleged offence is stated to have taken place in the year 2022.
Considering the facts and circumstances of the case, this Criminal Petition is disposed of. However, liberty is granted to the Petitioners to approach the learned Sessions Judge by filing an application seeking grant of pre-arrest bail, in the first instance, within a period of two (02) weeks from the date of receipt of the copy of this order. Upon filing such an application, the learned Sessions Judge concerned shall consider and dispose of the same as expeditiously as possible, in accordance with law. The Petitioners shall not be arrested by the Investigating Officer for a period of two (02) weeks. However, the Petitioners shall cooperate with the Investigating Officer in the course of investigation. The Investigating Officer is at liberty to proceed with the investigation in accordance with law.
In the result, the Criminal Petition is disposed of.
As a sequel, Miscellaneous petitions, if any pending, shall stand closed.