Manik Lal Das vs State Of Tripura

T. Amarnath Goud, J

[1] This present application has been filed under Section 438 of the Code of Criminal Procedure seeking pre-arrest bail against the FIR No. Crime No.2023 WAG 122 which is registered against the petitioner herein under Section 341, 506 and 34 of the IPC & Section 25 of Arms Act. On the strength of the said complaint dated 23.07.2023, it is indicating that the petitioner Sri Manik Lal Das with the support of a firearms has threatened the complainant. Hence the case against the petitioner as mentioned here-in-above.

[2] Heard Mr. S. Lodh, learned counsel assisted by Mr. K. Roy, learned counsel appearing for the petitioner. Also heard Mr. Ratan Datta, learned PP assisted by Mr. S. Debnath, learned Addl. PP representing the State-respondent.

[3] Mr. S. Lodh, learned counsel appearing for the accused-petitioner herein submits before this Court that his case under Section 438 of the Cr.P.C. needs to be considered as the complaint filed against the petitioner herein is only an afterthought and a counterblast complaint. Since a person supporting the accused-petitioner herein has filed a complaint on 22.07.2023, the present compliant has been filed as a counterblast compliant. Further on legal position, learned counsel indicated that the case of the petitioner falls for violation of Section 3 of the Arms Act and under Sub-Section 25(1-B)(a) and as such, his case may be considered for granting bail since the punishment would be up to 3 years.

[4] He further relied on Para-63 of the latest judgment of the Hon’ble Supreme Court reported in AIR 2022 SC 3386 titled as Satendra Kumar Antil Vs. Central Bureau of Investigation and anr., which is reproduced here-in-under:-

“63. We have already dealt with the relevant provisions which would take care of categories A and B. At the cost of repetition, we wish to state that, in category A, one would expect a better exercise of discretion on the part of the court in favour of the accused. Coming to category B, these cases will have to be dealt with on a case-to-case basis again keeping in view the general principle of law and the provisions, as discussed by us.”

[5] Learned counsel relying upon para-63 of the Satender Kumar Antil (supra) submitted that his case falls under Category A of cases and prayed before this Court to grant the present anticipatory bail application.

[6] Per contra, learned Public Prosecutor, appearing for the State-respondent contended that the petitioner is already a habitual offender and admittedly, there are several criminal cases pending against him at the Court of learned Judicial Magistrate 1st Class Belonia. He informed that prosecution has taken step for cancellation of the bail application since he is on bail in the pretext of the medical treatment in one case. Learned P.P. also submitted before this Court that the case of the petitioner would fall under Section-25(1-A) of the Arms Act in violation of Section-7. He further contended that the arguments made by the petitioner with regard to complaint and counter complaint are incorrect and thus, he prayed to dismiss the bail application as the same is not maintainable. Further the petitioner has not approached the Court below before approaching this Court. The petitioner has approached this Court straightway and no special reasons have been indicated in the pleadings as to why he has not approached the Sessions Court before approaching the High Court and in this regard, learned PP has also placed his reliance in a judgment of the Allahabad High Court in Harendra Singh @ Harendra Bahadur Vs The State of UP in Criminal Misc. Application No.6478 of 2019 (Bail) wherein it has been held thus:

In a decision reported in 1983(2) KLJ 8 in the case of K.C. Iyya Vs. State of Karnataka, the High Court of Karnataka has observed

"7. Since both the Courts, the Court of Sessions and this Court have concurrent powers in the matter, it appears desirable, for more than one reason, that the Sessions Court should be approached first in the matter.”

In the case of Shivasubramanyam Vs. State of Karnataka and another; 2002 CRL.LJ 1998, the Karnataka High Court re-iterated the abovesaid principles and ultimately held that the application fed under Section 438 of Cr.P.C. directly to the High Court is maintainable only under exceptional and under special circumstances, but not as a routine and the party cannot come before the Court as a matter of right.

By looking into the abovesaid discussions. I am of the opinion that the party has to approach the Sessions Court first and then he has to approach the High Court which is the normal course. But the courts have also observed that in extraordinary circumstances with special reasons, the party can also approach the High Court. The High Court cannot entertain Section 438 of Cr.P.C. as a matter of routine without examining whether there are any special reasons or special circumstances to entertain the said application.

In the case of Sri Kwmta Gwra Brahma Vs. State of Assam (Bail No.3024 of 2014), The Gauhati High Court has also expressed similar view and held that the party has to approach the Court of Sessions first under Section 438 of Cr.P.C. and he can later approach the High Court.

The intention of bringing out Section 438 of Cr.P.C. is enabling each and every person in the country if under extraordinary circumstances under exigencies either to approach the Court of Sessions or the High Court which can be concurrently exercised by both the courts. Though such remedy, cannot be riddled down by imposing any extraordinary condition but still the Court can refuse to entertain the bail petition and direct the party to approach the Court of Sessions first because Section 438 of Cr.P.C. shall not be exercised as a matter of right by the party, though it can be invoked either before the Sessions Court or before the High Court. It is purely the discretionary power of the Court to exercise power depending upon the facts and circumstances of each case. Therefore, the High Court can direct the party to go first before the Court of Sessions and then come to the High Court though there is no embargo under the statute itself, but the Court can do so on the basis of various factors.

It is worth to note here that whenever the concurrent jurisdiction is vested under the statute simultaneously in two courts of one is superior to the other, then it is appropriate that the party should apply to the subordinate Court first, because the higher Court would have the advantage of considering the opinion of the Sessions Court. Moreover, the party will get two opportunities to get the remedy either before the Sessions Court or before the High Court but if once he approaches the High Court, he would run the risk that, the other remedy is not available to him if he failed to get the order in the High Court, he cannot go before the Sessions Court for the same remedy. However, vice versa is possible.

It is also to be notable that the Sessions Court will always be nearest and accessible Court to the parties. Moreover, considering the work load of the courts in the country, the superior courts particularly, the High Courts are flooded with heavy pendency of cases. In order to facilitate the other parties who come before the Court with other cases before the High Court (which has got exclusive Jurisdiction) and also in order to provide alternative remedy to the parties, it is just and necessary that the party shall first approach the Sessions Court under Section 438 of Cr.P.C. so that the High Court can bestow its precious time to deal with other pending cases which requires serious attention and expeditious disposal, where the parties who have come to the High Court after exhausting remedy before the Magistrate Court or the Sessions Court for grant of bail and for other reliefs.

The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going through the entire materials on record. In that context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case, with expedition.

It is also worth to note here that the Sessions Court and the High Court are concurrently empowered to grant bail under Section 438 of Cr.P.C. The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviated the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far as the Sessions Courts are concerned. Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said provision.

Therefore, looking to the abovesaid rulings of different High Courts, I do not find any strong reason to deviate from the said view taken by the other High Courts. Hence, I am of the opinion, the point formulated by me noted above has to be answered accordingly.

Hence, I answer the point raised as follows:

"The bail application filed under Section 438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision."

[7] Heard the arguments made by both the sides and perused the evidence on record.

[8] This Court is conscious that in the event if any opinion is expressed by this Court on merits that would cause an infringement in the investigation for either side. This is only a pre-arrest bail and the petitioner is already facing two criminal cases against him and there are no reasonable grounds indicated in the bail application as to why the anticipatory bail should be entertained under Section 438 Cr.P.C. bypassing the Court of Sessions Judge.

[9] This Court is also conscious with regard to the fact that the petitioner is having right under Section 438 of Cr.PC either to approach the High Court or the Court of Sessions Judge. But this Court finds force in the submission of learned P.P. and declines to interfere with granting anticipatory bail to Manik Lal Das, i.e the accused-petitioner. The petitioner herein is directed to surrender before the concerned Court on or before 18th August, 2023 and seek appropriate relief by filing appropriate application. On filing of such application, the concerned Court below shall consider the same on merits.

In the above terms, the present anticipatory bail application stands dismissed.