# Vinod Kumar v. State of U.P. & Anr

- **Citation:** (2019) 4 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-06
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-v-state-of-u-p-anr-44967
- **Pages:** 40

## Headnote

A. Criminal Law - Code of Criminal
Procedure,
1973
-
Section
438
-
application-rejection-no
allegation
or
affirmation
that
the
applicant
apprehends arrest-no ground for grant of
anticipatory bail. (Para 58 & 59)
Before power under sub-section (1) of Section
438 of the Code is exercised, the court must
be satisfied that the applicant invoking the
provision has reason to believe that he is likely
to be arrested for a non-bailable offence and
that belief must be founded on reasonable
grounds. Mere ''fear' is not belief, for which
reason, it is not enough for the applicant to
show that he has some sort of vague
apprehension that someone is going to make
an accusation against him, in pursuance of
which he may be arrested. The grounds on
which the belief of the applicant is based that
he may be arrested for a non-bailable offence,
must be capable of being examined by the
court objectively. Specific events and facts
must be disclosed by the applicant in order to
enable the court to judge the reasonableness
of his belief, the existence of which is the sine
qua non of the exercise of power conferred by
the section. (Para 57)

Crl. Misc. Anticipatory Bail application
dismissed. (E-6)

List of cases cited: -

## Text

_Characters 0–39,818 of 135,754. This is a partial read: ask again with offset=39818 for what follows._

4 All. Vinod Kumar Vs. State of U.P. & Anr.
867
the court concerned along with same at
the time of submission of report under
Section 173(2) Cr.P.C.

10. The application for grant of
anticipatory bail shall be finally heard
under Section 438(5) Cr.P.C. for passing
the order thereupon on 22.01.2020.

11. Learned A.G.A has accepted
notice on behalf of the State who may
obtain instructions or, if desired, may file
counter affidavit within two weeks
positively. Rejoinder affidavit, if any,
may be filed within a week thereafter.

12. A.G.A. may obtain copy of this
order if required, and make necessary
communication
with
S.P./S.S.P.
concerned in this regard.
----------
(2019)12 ILR A867

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.12.2019

BEFORE
THE HON'BLE YASHWANT VARMA, J.

Crl. Misc. Anticipatory Bail Application 53729 of 2019

Vinod Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Virendra Singh Tomar, Sri Rajiv Sisodia

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,
1973
-
Section
438
-
application-rejection-no
allegation
or
affirmation
that
the
applicant
apprehends arrest-no ground for grant of
anticipatory bail. (Para 58 & 59)
Before power under sub-section (1) of Section
438 of the Code is exercised, the court must
be satisfied that the applicant invoking the
provision has reason to believe that he is likely
to be arrested for a non-bailable offence and
that belief must be founded on reasonable
grounds. Mere ''fear' is not belief, for which
reason, it is not enough for the applicant to
show that he has some sort of vague
apprehension that someone is going to make
an accusation against him, in pursuance of
which he may be arrested. The grounds on
which the belief of the applicant is based that
he may be arrested for a non-bailable offence,
must be capable of being examined by the
court objectively. Specific events and facts
must be disclosed by the applicant in order to
enable the court to judge the reasonableness
of his belief, the existence of which is the sine
qua non of the exercise of power conferred by
the section. (Para 57)

Crl. Misc. Anticipatory Bail application
dismissed. (E-6)

List of cases cited: -

1. Neeraj Yadav And Anr. Vs. St. of U.P. And 2 Ors.
(Cri. Misc. Bail Application No. 44895 of 2019)

2. Harendra Singh @ Harendra Bahadur Vs.
The St. of U.P. (Cri. Misc. Bail Application No.
6478 of 2019)

3. Mohan Lal & Ors. etc. Vs. Prem Chand and
Ors. etc (1980) AIR HP 36

4. Jagdish Kumar Vs. District Judge, Budaun
and Ors. (1998) 33 ALR 400

5. Gurbaksh Singh Sibbia Vs. The St. of
Punjab (1980) 2 SCC 565

6. Mubarik & Anr. Vs. St. of Uttarakhand &
Ors. (Cri. Writ Pet. No. 2059 of 2018/decided
2Nov 2018)

7. Onkar Nath Agrawal & Ors. Vs. State (1976)
All LJ 223

8. Harendra Singh @ Harendra Bahadur Vs.
The St. of U.P. (Cri. Misc.Bail appl. No.6478 of
2019)
868 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Diptendu Nayek Vs. St. of W. B. (1988) 2
Cal LJ 447

10. Ranchhoddas Atmaram & Anr. Vs. Union
of India And Ors. (1961) AIR SC 935

11. Sushila Aggarwal & Ors. Vs. St. (NCT Of
Delhi) & Anr S.L.P. (Cri.) Nos. 7281-7282 of
2017/15 May 2018

12. Siddharam Satlingappa Mhetre Vs. St.of
Mah. & Ors.(2011) 1 SCC 694
13. HDFC Bank Limited Vs. J.J. Mannan (2010)
1 SCC 679

14. Satpal Singh Vs. The St. of Punjab (2018)
SCC Online SC 415

15.
Rashmi
Rekha
Thatoi
Vs.
St.of
Orissa(2012) 5 SCC 690

(Delivered by Hon'ble Yashwant
Varma,J.)

1. Almost four decades post the
deletion of Section 438 Cr.P.C. insofar as
it applied to the State of Uttar Pradesh,
the
Legislature
reintroduced
that
provision on 6 June 2019. The legislative
essay
was
a
reaffirmation
of
the
constitutional
guarantee
of
personal
liberty accorded to all citizens and to
provide a salutory safeguard against the
ignominy of arrest and deprivation of
liberty. This nascent and resurrected
jurisdiction has, however, in a short span
of time raised questions which merit an
authoritative pronouncement. It is in that
backdrop that the Court takes up the
instant petition.

2. This petition along with other
applications for grant of anticipatory bail
were taken up on 4 December 2019. Upon
preliminary submissions being advanced,
the Court on that date framed the
following questions which appeared to
principally arise:-

"The present application under
Section 438 Cr.P.C. for anticipatory bail
has been moved after rejection of a
similar application by the Sessions Judge.
The issue which would consequently arise
would be whether the application would
be
maintainable
since
as
per
the
provision, an order once passed shall not
be construed as an interlocutory order for
the purposes of the Code.

Learned counsels have also
referred to the views expressed by two
learned Judges in Criminal Misc. Bail
Application No. 44895 of 2019 [Neeraj
Yadav And Another Vs. State of U.P.
And 2 Others] and Bail Application No.
6478 of 2019 [Harendra Singh @
Harendra Bahadur Vs. The State of
U.P.]. According to learned counsels
since the statute confers concurrent
jurisdiction, it would be incorrect for the
Court to take the view that the applicant
must first exhaust the remedy before the
Sessions Court before applying to the
High Court. The perceived inconsistency
is addressed on the basis of the views
expressed
on
the
two
applications
aforementioned. The third issue which
would arise for consideration would be
that if the Court were to accept the view
expressed in Harendra Singh what would
be the special circumstances in which the
High Court could be moved first without
the applicant being asked to invoke the
jurisdiction of the Sessions Judge.

As
requested
by
learned
counsels appearing in similar matters as
well as Sri Sisodia in this application,
include in the list of fresh cases of 06
December 2019."

3. In order to facilitate learned
counsels to address further submissions,
4 All. Vinod Kumar Vs. State of U.P. & Anr.
869
the application and other matters on that
date were placed for disposal today. All
members of the Bar were requested to
address submissions bearing in mind the
importance of the questions which stood
raised and the impact which they would
have on matters likely to come before the
Court in future. The Court for the
purposes of convenience, shall firstly
proceed to note and dispose of the
questions which arise and thereafter deal
with the merits of the instant application
separately.

4. The issues themselves arise in the
backdrop of the reintroduction of Section
438 Cr.P.C. by virtue of U.P. Act No. 4 of
2019 w.e.f. 6 June 2019. It would be
apposite to recollect that Section 438
Cr.P.C. stood as part of the Code
applicable to the State till it was deleted
with
retrospective
effect
from
28
November 1975 by U.P. Act No. 16 of
1976. The provision as it originally
existed on the statute book was as
follows:

"438. Direction for grant of
bail to person apprehending arrest.-(1)
When any person has reason to believe
that he may be arrested on an accusation
of having committed a non- bailable
offence, he may apply to the High Court
or the Court of Session for a direction
under this section; and that Court may, if
it thinks fit, direct that in the event of such
arrest, he shall be released on bail.

(2)When the High Court or the
Court of Session makes a direction under
sub- section (1), it may include such
conditions in such directions in the light
of the facts of the particular case, as it
may think fit, including--

(i) a condition that the person
shall
make
himself
available
for
interrogation by a police officer as and
when required;

(ii) a condition that the person
shall not, directly or indirectly, make any
inducement, threat or promise to any
person acquainted with the facts of the
case so as to dissuade him from disclosing
such facts to the Court or to any police
officer;

(iii) a condition that the person
shall not leave India without the previous
permission of the Court;

(iv) such other condition as may
be imposed under sub-section (3) of
section 437, as if the bail were granted
under that section.

(3) If such person is thereafter
arrested without warrant by an officer in
charge of a police station on such
accusation, and is prepared either at the
time of arrest or at any time while in the
custody of such officer to give bail, be
shall be released on bail; and if a
Magistrate taking cognizance of such
offence decides that a warrant should
issue in the first instance against that
person, he shall issue a bailable warrant in
conformity with the direction of the Court
under sub- section (1)."

5. The said provision as re-enacted
in 2019 reads thus:-

"438. Direction for grant bail to
person apprehending arrest.--(1) Where
any person has reason to believe that he
may be arrested on accusation of having
committed a non-bailable offence, he may
apply to the High Court or the Court of
Session for a direction under this section
that in the event of such arrest he shall be
released on bail; and that Court may, after
taking into consideration, inter alia, the
following factors, namely--
870 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) the nature and gravity of the
accusation;

(ii) the antecedents of the
applicant including the fact as to whether
he
has
previously
undergone
imprisonment on conviction by a Court in
respect of any cognizable offence;

(iii) the possibility of the
applicant to flee from justice; and

(iv) where the accusation has
been made with the object of injuring or
humiliating the applicant by having him
so arrested;

either reject the application
forthwith or issue an interim order for the
grant of anticipatory bail:

Provided that where the High
Court or, as the case may be, the Court of
Session, has not passed any interim order
under this sub-section or has rejected the
application for grant of anticipatory bail,
it shall be open to an officer in-charge of
a police station to arrest, without warrant,
the applicant on the basis of the
accusation
apprehended
in
such
application.

(2) Where the High Court or, as
the case may be, the Court of Session,
considers it expedient to issue an interim
order to grant anticipatory bail under subsection (1), the Court shall indicate
therein the date, on which the application
for grant of anticipatory bail shall be
finally heard for passing an order thereon,
as the Court may deem fit, arid if the
Court
passes
any
order
granting
anticipatory bail, such order shall include
inter alia the following
conditions,
namely--

(i) that the applicant shall make
himself available for interrogation by a
police officer as and when required;

(ii) that the applicant shall not,
directly
or
indirectly,
make
any
inducement, threat or promise to any
person acquainted with the facts of the
case so as to dissuade him from disclosing
such facts to the Court or to any police
officer,

(iii) that the applicant shall not
leave
India
without
the
previous
permission of the Court; and

(iv) such other conditions as
may be imposed under sub-section (3) of
Section 437, as if the bail were granted
under that section.

Explanation.--The final order
made on an application for direction
under sub-section (1); shall not be
construed as an interlocutory order for the
purpose of this Code.

(3) Where the Court grants an
interim order under sub-section (1), it
shall forthwith cause a notice being not
less than seven days notice, together with
a copy of such order to be served on the
Public Prosecutor and the Superintendent
of Police, with a view to give the Public
Prosecutor a reasonable opportunity of
being heard when the application shall be
finally heard by the Court.

(4) On the date indicated in the
interim order under sub-section (2), the
Court shall hear the Public Prosecutor and
the applicant and after due consideration
of their contentions, it may either confirm,
modify or cancel the interim order.

(5) The High Court or the Court
of Session, as the case may be, shall
finally dispose of an application for grant
of anticipatory bail under sub-section (1),
within thirty days of the date of such
application;

(6) Provisions of this section
shall not be applicable,--

(a) to the offences arising out
of,--

(i)
the
Unlawful
Activities
(Prevention) Act, 1967;
4 All. Vinod Kumar Vs. State of U.P. & Anr.
871

(ii) the Narcotic Drugs and
Psychotropic Substances Act, 1985;

(iii) the Official Secret Act,
1923;

(iv) the Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention)
Act, 1986.

(b) in the offences, in which
death sentence can be awarded.

(7) If an application under this
section has been made by any person to
the High Court, no application by the
same person shall be entertained by the
Court of Session."

[Vide U.P. Act No. 4 of 2019,
S. 2 (Received the assent of the President
on 1-6-2019 and published in the U.P.
Gazette, Extra., Part 1, Section (Ka),
dated 6-6-2019).]"

6. It would also be pertinent to
extract the SOR of the amending Act by
virtue of which the provisions was
reintroduced. The SOR reads thus:-

STATEMENT OF OBJECTS AND
REASONS

Section 438 of the Code of
Criminal Procedure 1973, regarding the
provision of anticipatory bail, was omitted
by the Code of Criminal Procedure (Uttar
Pradesh Amendment) Act, 1976 (U.P. Act
no. 16 of 1976). There is continuous
demand for its revival. Writ petitions have
also been filed before the Hon'ble Courts
for its revival in Uttar Pradesh. The State
Law Commission has, in its third report in
2009, also recommended for reviving the
provisions of the said section. With a
view to considering the revival of the
provisions
of
the
said
section,
a
committee has been constituted under tie
chairmanship of the Principal Secretary to
the Government of Uttar Pradesh in Home
Department, consisting of the Special
Secretary of Judicial Department, Special
Secretary of the Legislative. Department,
Director General of Prosecution and
Additional Director General of Police
(Crime), as the members thereof. The said
committee has recommended that the
provisions of the said section should be
revived with certain modifications. After
considering the recommendation of the
said Committee, it has been decided to
amend the Code of Criminal Procedure,
1973 in its application to Uttar Pradesh to
revive the provisions of section 438
thereof with certain modifications. The
Code of Criminal Procedure (Uttar
Pradesh
Amendment) Bill, 2018 is
introduced accordingly.

7. The issues framed principally
arose in the context of the newly framed
Section 438 in purported implementation
of
the
report
of
the
State
Law
Commission tabled in 2009. For the
purposes of rendering clarity, it would be
appropriate to set forth the questions
which principally fall for determination:-

A. The nature of the concurrent
jurisdiction conferred by Section 438
Cr.P.C.

B. Whether parties should be
commanded to necessarily approach the
Sessions Court first before invoking the
jurisdiction of this Court under Section
438 Cr.PC

C. In what circumstances can
the High Court be approached directly
under Section 438 Cr.P.C.

D.
Exceptional
or
Special
circumstances.

E.
The
perceived
conflict
between
the
decisions
rendered
in
Harendra Singh @ Harendra Bahadur
872 INDIAN LAW REPORTS ALLAHABAD SERIES
Vs. The State of U.P.1 and Neeraj
Yadav And Another Vs. State of U.P.2

F. Impact of the Explanation to
Section 438(2) Cr.P.C.

G.
The
period
for
which
anticipatory bail should operate.

8. Leading submissions on behalf of
the applicants, Sri Imran Ullah firstly
referred the Court to the 203rd Report of
the Law Commission of India submitted
in December 2007. According to Sri
Imran Ullah it is the recommendations
contained in this report that appear to
have guided the Legislature in framing
Section 438 as it stands introduced in its
application to the State of U.P. Taking the
Court through the note on concurrent
jurisdiction Sri Imran Ullah drew the
attention of the Court to paragraph 6.4.1
of the report which reads thus:-

"6.4.1 One of the objections
raised against the amended section has
been that if the applicant seeking
anticipatory bail is required to be
compulsorily present in the Court in terms
of new sub-section (1B), he is most likely
to be arrested from the Court precincts in
the event of rejection of his bail. Such an
arrest of the applicant will deprive him of
his right otherwise available to him to
move the alternative forum provided in
Section 438 of the Code. Concurrent
jurisdiction of the Court of Session and
the High Court under Section 438 has
generated much litigation. The Code has
not prescribed any specific order in which
the two alternative forums are to be
approached. It is left to the option of the
applicant to move either the Court of
Session or the High Court for anticipatory
bail one after another or in reverse order.
There is conflict of opinion amongst
various High Courts as to whether the
Court of Session should originally be
approached in the first instance or the High
Court can be straightaway approached for
grant of anticipatory bail without first taking
recourse to the Court of Session. It may be
noted that both Court of Session and the
High Court exercised original jurisdiction
underSection 438. However, when the High
Court is moved after the anticipatory bail
application has been dismissed by the Court
of Session, the petition for anticipatory bail
in the High Court is required to be
accompanied with a copy the Session Court's
order from which reason for dismissal of
anticipatory bail application can be gathered.
In such a case, the High Court essentially
exercises revisionary powers over the order
of the Court of first instance. i.e. Session
Court though purporting to be exercising
original jurisdiction under Section 438. On
the other hand, it has been held in some cases
that where the applicant moved High Court
for anticipatory bail which was rejected then
the Court of Session should not grant
anticipatory bail to the applicant on the same
facts and material as otherwise it would be an
act of judicial impropriety. There are also
cases where similar view has been taken in
reverse order in respect of rejection of
application for anticipatory bail by Court of
Session. Accordingly, it has been held in
some cases that if an application for
anticipatory bail is rejected by the Court of
Session, then similar application on the same
fact would not lie in the High Court unless
there is some new material or facts. There are
cases also where contrary view has been
taken whereby no such fetter is admitted on
the powers of the High Court."

9. After noticing the judgments rendered
by different High Courts of the country it
proceeded to observe as follows:-
4 All. Vinod Kumar Vs. State of U.P. & Anr.
873

"6.4.19 There are a lot many
more cases on the above aspects. Suffice
it to say that the section has generated
much litigation that could have been
avoided.
There
are
certain
other
provisions inthe Code which have vested
concurrent jurisdiction in the High Court
and the Court of Session. For example,
both the High Court and the Court of
Session have concurrent jurisdiction of
revision underSection 397. However,
underSection 397if a person approaches
either of these Court, he cannot again
agitate that matter by way of revision in
the other Court. Whereas there seems to
be justifiable reason for conferring
concurrent jurisdiction on the High Court
and the Court of Session, yet the person
seeking anticipatory bail should have
been given an option on the lines
ofSection 397(3). Accordingly, if he
approaches either of these two Courts, he
should not be allowed again to seek the
same relief by way of a substantive
application underSection 438in the other
Court. It may be noted as observed by
Karnataka High Court in K.C. Iyya and
etc. Vs State of Karnataka, 1985 Cri. L.J.
214 that in the matter of bail, either
anticipatory as regular, the voice of the
Court of Session is not final but is subject
to revisional or appellate jurisdiction of
the High Court and the Supreme Court.
Also in these matters of bail, either
anticipatory or regular, the Court of
Session is given as wide a power of
discretion as vests in the High Court. In
this connection, the followingobservations
of Chandrachud, C.J. in Gurbaksh Singh
Sibbia etc. Vs The State of Punjab, AIR
1980 SC 1632 may be noted.

"There is no risk involved in
entrusting wide discretion to the Court of
Session and the High Court in granting
anticipatory bail because firstly, these are
higher Courts manned by experienced
persons; secondly, their orders are not
final but are open to appellate or revision
scrutiny."

6.4.20 It may be noted in this
regard that Inspectors General of Police
Conference, 1981, inter alia suggested
thatSection 438be amended so as to take
away the powers to grant anticipatory bail
from the Session Court and vest it only in
the High Courts. A Group of officers,
constituted pursuant to the decision taken
at the meeting of Secretaries held on 2nd
July, 1982, too concurred with it when it
observed that "as sometimes, the Courts
take a very liberal view in granting
anticipatory bail to criminals, it was
considered that such powers should be
taken from the Court of Session and vest
only in the High Court even though it will
make difficult for the poor persons to
avail of the provisions of anticipatory
bail. A Parliamentary Bill being No. 56 of
1988 was introduced in the Lok Sabha on
13th may, 1988, clause 49 of which
related to amendment ofSection 438,
providing, inter alia, omission of the
words or the Court of Session" from subsection (1) and (2) of that section.
However, these proposed amendments
were ultimately not carried out and both
the High Court andthe Court of Session
continued to have concurrent jurisdiction
underSection
438in
the
matter
of
anticipatory bail and in our opinion,
rightly so. There are certainly distinct
advantages
of
vesting
concurrent
jurisdiction in the two judicial forums and
giving an option to an applicant to choose
one
of
two,
depending
upon
his
convenience
or
otherwise.
These
advantages have been referred to in some
of
the
decided
cases.
(See
Shivasubramanyam Vs State of Karnataka
and another, 2002 Cri.L.J. 1998; Y.
874 INDIAN LAW REPORTS ALLAHABAD SERIES
Chendrasekhara Rao Vs Y.V. Kamala
Kumari, 1993 Cri.L.J. 3508 (A.P.);
Rameshchandra Kashiram Vora Vs State
of Gujarat, 1988 Cri.L.J.210 (Guj.).
However, it is not readily discernible as to
why same relief or facility has been made
available to same persons at the hand of
two different judicial forums one after
another in exercise of their respective
original jurisdiction when efficacious
remedy is otherwise available against the
order of the Court which may have been
chosen by an applicant for relief in the
first instance. One fails to understand as
to why a provision on the lines ofSection
397(3)has not been made inSection
438whereby once the applicant has
availed his option to choose one of the
two alternative forums, his recourse to the
other forum is foreclosed, if he fails to get
the desired relief from the forum he has
earlier chosen. Thus, if a person moves
the Court of Session for anticipatory bail
and fails to get it, then why he should
again
be
allowed
to
file
another
substantive application to anticipatory bail
to High Court instead of revision, or, as
the case may be, appeal against the order
ofrejection of the application by the
Session Court. Again, if the person has
moved the High court in the first instance,
does it not look apparently anomalous for
the same person to move the lower Court,
namely, the Court of Session for the same
relief on the same facts that has been
denied to him by the High Court?
Theoretically, it is permissible. But, as a
matter of propriety and policy, should that
person not be made to move the higher
judicial forum instead of a lower one in
such cases. It is inherent in the scheme of
things that when two alternative forums
are provided in law for seeking directions
for anticipatory bail, one lower and
another higher, then the lower should be
first resorted to as a matter of principle
except in exceptional cases in which event
the applicant should be deprived of his
option to move the lower forum afresh on
the same facts and material. Any different
approach may lead to anomalous results
where the relief sought at the hands of the
High Court having been denied, can again
be sought from the lower court without
there
being
any
change
in
the
circumstances in which the relief has been
denied by the High Court. Theoretically,
it may be feasible but in practice it will
not be. Such a scenario might not have
been in the contemplation of the framers
of the law. If that be so, then we fail to
understand as to what distinct advantage
is intended to be conferred on persons
seeking anticipatory bail by allowing
them to move the two alternative forums
one after another in their original
jurisdiction for the same relief on the
same facts. One reason for this could be
that an order rejecting anapplication bail
is interlocutory [See Zubair Ahmad Bhat
Vs State of Jammu and Kashmir, 1990
Cri.L.J. 103 (J&K), Joginder Singh Vs
State of Himachal Pradesh, ILR (1975)
HP 181. A different view was, however,
expressed in Mohan Lal and other Vs
Prem Chand and others, AIR 1980 HP 36
(FB)] wherein it was held that Sessions
Judge's order refusing anticipatory bail
was not an interlocutory order. The power
of revision conferred by sub-section (1)
ofSection 397is not exercisable in relation
to any interlocutory order in any appeal,
inquiry,
trial
or
other
proceeding.
(SeeSection
397(2)of
the
Code
of
Criminal
Procedure,
1973).
The
conflicting views of High Courts in
various cases in this regard have led to
varied judicial practices whereby recourse
is sometime taken to the powers of
revision of the High Courts against orders
4 All. Vinod Kumar Vs. State of U.P. & Anr.
875
of
Courts
of
Session
declining
anticipatory bails and in other cases
inherent powers of the High Courts are
invoked in such matters. The High Courts
exercise their inherent powers to redress
the grievance of the aggrieved person or
to prevent the use of the process of the
Court and to secure the ends of justice or
to prevent miscarriage of justice or illegal
exercise of jurisdiction underSection
482of the Code of Criminal Procedure,
1973 or underArticle 227in exceptional
cases. [See Shyam M. Sachdev Vs State
and another, 1991 Cri.L.J. 300 (Delhi)];
Ram Prakash Vs State of H.P. 1979
Cri.L.J. 750 (HP); Bhola and others Vs
State 1979 Cri.L.J. 718 (Allahabad);
Kamal Krishna De Vs State 1977 Cri.L.J.
1492 (Calcutta)]. The Supreme Court in a
number of cases has laiddown the scope
and ambit of the powers of the courts
underSection 482Cr.P.C. Every High
Court has inherent power to act ex debito
justitiae to do real and substantial justice,
for the administration of which alone if
exists, or to prevent abuse of the process
of the court. Inherent power underSection
482Cr.P.C. can be exercised: (i) to give
effect to an order underthe Code; (ii) to
prevent abuse of the process of court; and
(iii) to otherwise secure the ends of
justice. Inherent powers underSection
482Cr.P.C. though wide have to be
exercised sparingly, carefully and with
great caution and only when such exercise
is justified by the tests specifically laid
down in this section itself. Authority of
the court exists for the advancement of
justice. If any abuse of the process leading
to injustice is brought to the notice of the
court, then the Court would be justified in
preventing injustice by invoking inherent
powers in absence of specific provisions
in the Statute...The powers possessed by
the High Court underSection 482of the
Code are very wide and the very plenitude
of the power requires great caution in its
exercise. (See Inder Mohan Goswami and
another Vs State of Uttaranchal and
others, 207(12) SCALE 15 at 25).Section
482is not controlled bySection 397(2)or
397(3). The inherent powers of the High
Court are not subjected to the bar
contained inSection 397as the powers of
the High Court under these two Sections
are distinct, different and
mutually
exclusive and ought not to be equated.
Nothing inthe Codenor even the bar
underSection 397affect the amplitude of
the High Court'sinherent power if glaring
injustice stares the Court in the face [See
Govind Das Biyani and others Vs
Badrinarayan Rathi (1995) 4 Crimes 755
(M.P.); Smt. Chander Mohini Khuller Vs
State of West Bengal and another,
1995(4) Crimes 289 (Cal.); Rajeev Bhatia
Vs Abdulla Mohmed Gani and another,
1992 Cri.L.J. 2092 (Bom.); Binod Sitha
Vs Suna Devi 1986(1) Crimes 208 (Ori);
Raj Kapoor and others Vs State (Delhi
Administration)and others, AIR 1980 SC
258); Malam Singh Vs State of Rajasthan,
1977 Cri.L.J. 730 (Raj.)]. Thus, where an
application for anticipatory bail has been
rejected by the Court of Session and no
revision lies against it for the order of
rejection being an interlocutory order,
then the remedy of the applicant will be to
invoke the inherent powers of the High
Court
underSection
482or
the
constitutional powers underArticle 227of
the Constitution of India, in a case a
provision is inserted inSection 438on the
lines ofSection 397(3). It may be seen that
there is lack of uniformity in judicial
practices in these matters that needs to be
remedied. One way of doing this is to
extend the benefit of revision by suitably
amending the law. It may be noted that
the amended provision envisages passing
876 INDIAN LAW REPORTS ALLAHABAD SERIES
of ad interim order on an application for
anticipatory bail application in the first
instance, followed by a final order after
hearing the Public Prosecutor. Besides,
such an application need not necessarily
be filed in any pending case as
registration of a FIR is not considered
necessary. To add to it, the applicant may
not be ultimately put up for trial if the
investigation of the case does not reveal
any materialagainst the applicant. In such
a scenario, the final order on the
application may not be in the nature of
interlocutory as the case may stand
disposed of finally. Besides, the use of
legal fiction is not unknown to Law and it
is quite often applied to meet a given
exigency or to secure certain ends. It is
thus legally feasible to expressly provide
in the Law that final orders on an
anticipatory bail application may not be
construed
as
interlocutory
for
the
purposesof
the
Code.
And,
we
recommend accordingly."

10.

In
conclusion
the
Law
Commission summarised the position in
paragraph 6.4.21 as under:-

"6.4.21
Accordingly,
the
position that will so emerge will proceed
on the following lines, viz.,

(i) Both the High Court and the
Court of Session will have concurrent
jurisdiction to deal with application for
directions underSection 438and it will be
open to a person to move either of these
two Courts at his option;

(ii) Once that option is exercised
and that person decides to move one of
these Courts, then the person will not
have any further option to move the other
Court;

(iii) Where the person chooses
to move the Court of Session in the first
instance, a revision will lie in the High
Court against the order of Court of
Session on the application for issue of
directions under Section 438;

(iv) Where the person chooses
to straightaway move the High Court in
the first instance, subject to Court's
satisfaction of the special or exceptional
circumstances justifying such move, the
person will stand deprived of the
aforesaid remedy of revision. In such a
case the person if aggrieved of the High
Court's order on his application for
direction underSection 438may have to
invoke the extraordinary constitutional
powers of the Supreme Court by seeking
special leave to appeal in the Supreme
Court.

6.4.22 We are, therefore, of
considered view thatSection 438should be
amended so as to contain a provision on
the lines ofSection 397(3). All other
remedies that are presently provided inthe
Codeor otherwise against the final order
on an application for anticipatory bail,
will, however, continue to be available.
This will also take away much of the sting
of
lawyers'
objections
against
the
amendments, particularly those contained
in sub-section (1B), that the applicants
have been so denied the right to move the
other forum against the rejection of his
application as he could be arrested being
present in the Court, though we have
recommended omission of that subsection, albeit, on different grounds."

11. It ultimately made the following
recommendations:-

"7.1 We recommend that:

(I) The proviso to sub-section
(1) of Section 438 shall be omitted.
4 All. Vinod Kumar Vs. State of U.P. & Anr.
877

(ii) Sub-section (1B) shall be
omitted.

(iii) A new sub-section on the
lines of Section 397(3) should be inserted.

(iv) An Explanation should be
inserted clarifying that a final order on an
application seeking direction under the
section shall not be construed as an
interlocutory order for the purposes of the
Code."

12. Sri Imran Ullah then drew the
attention of the Court to the Report
submitted
by
the
U.P.
State
Law
Commission on 28 July 2009. The State
Law Commission while dealing with the
imperative need of reintroduction of the
provisions for anticipatory bail amongst
other factors also noticed the large
number of cases traveling to the High
Court under Section 482 Cr.P.C. as well
as 226 of the Constitution in light of the
hightened perception of arrest and undue
harassment.

13. Dealing with the question of
concurrent jurisdiction, the State Law
Commission framed its opinion in the
following terms:-

"8.20 As far as jurisdiction is
concerned,
as
stated
earlier,
the
Commission is of the opinion that:

(i) Both the High Court and the
Court of Session will have concurrent
jurisdiction to deal with application for
directions under Section 438 and it will be
open to a person to move either of these
two Courts at his option:

(ii) Once that option is exercised
and that person decides to move one of
these Courts, then the person will not
have any further option to move the other
Court;

(iii) Where the person chooses
to move the Court of Session in the first
instance, he may move to the High Court
against the order of Court of Session on
the application for issue of directions
under Section 438;

(iv) Where the person chooses
to straightaway move the High Court in
the first instance, in such a case the
person if aggrieved of the High Court's
order on his application for direction
under Section 438 may have to invoke the
extraordinary constitutional powers of the
Supreme Court by seeking special leave
to appeal in the Supreme Court."

14. It ultimately and in its
recommendations proposed the text of
Section 438 to be in the following terms :-

"438. Direction for grant of
bail to person apprehending arrest-

(1) Where any person has
reason to believe that he may be arrested
on accusation of having committed a nonbailable offence, he may apply either to
the Court of Session or the High Court for
a direction under this section that in the
event of such arrest he shall be released
on bail; and that Court may, after taking
into
consideration,
inter
alia,
the
following factors, namely,-

(2)

(i) The nature and gravity of the
accusation;

(ii) the antecedents of the
applicant including the fact as to whether
he
has
previously
undergone
imprisonment on conviction by a Court in
respect of any cognizable offence;

(iii) the possibility of the
applicant to flee from justice, repeat the
offence and tamper the witnesses; and

(iv) where the accusation has
been made with the object of injuring or
878 INDIAN LAW REPORTS ALLAHABAD SERIES
humiliating the applicant by having him
so arrested;

either reject the application
forthwith or issue an order for the grant of
anticipatory bail:

Provided
that
where
an
application is moved, the Court shall
forthwith cause a notice being not less
than forty eight hours notice, together
with a copy of such application to be
served on the Public Prosecutor with a
view to give the Public Prosecutor a
reasonable opportunity of being heard
when the application shall be heard by the
Court.

(2) When the Court of Session
or the High Court makes a direction under
sub-section (1), it may include such
directions in the light of the facts of the
particular case, as it may think fit,
including:-

(i) a condition that the person
shall
make
himself
available
for
interrogation by a Police Officer as and
when required;

(ii) a condition that the person
shall not, directly or indirectly, make any
inducement, threat or promise to any
person acquainted with the facts of the
case so as to dissuade him from disclosing
such facts to the Court or to any Police
Officer;

(iii) a condition that the person
shall not leave India without the previous
permission of the Court;

(iv) a condition that the person
shall not leave India without the previous
permission of the Court;

(v) such other condition as may
be imposed under sub-section (3) of
Section 437, as if the bail were granted
under that section.

(3) If such person is thereafter
arrested without warrant by an officer-incharge of a police station on such
accusation, and is prepared either at the
time of arrest or at any time while in the
custody of such officer to give bail, he
shall be released on bail; and if a
Magistrate taking cognizance of such
offence decides that a warrant should be
issued in the first instance against that
persons, he shall issue a bailable warrant
in conformity with the direction of the
court under sub-section (1).)"

9.2 If an application under this
section has been made by any person
either to the Court of Session or the High
Court, no further application by the same
person shall be entertained by either of
them.

We recommend accordingly."

15. According to Sri Imran Ullah,
the language employed by Section 438 as
introduced
clearly
establishes
the
conferment of concurrent jurisdiction on
the High Court as well as the Court of
Sessions. In view thereof it was his
submission that no fetter or restraint can
consequently be placed on the exercise of
choice by an individual. Sri Imran Ullah
would submit that the provision grants
complete freedom to the individual to
choose to approach either the High Court
or the Sessions Court subject to percieved
expediencies. In view thereof, it was
submitted that no rule or dictum can
possibly
be
formulated
requiring
individuals to first exhaust the remedy as
provided before the Court of Sessions and
only thereafter to approach the High
Court. Taking the Court both through the
recommendations of the Law Commission
of India as well as the State Law
Commission it was submitted that though
both had recommended the introduction
of a provision to the effect that once upon
exercise of choice by a person to move
one of the concurrent jurisdictions, he
4 All. Vinod Kumar Vs. State of U.P. & Anr.
879
should not have the option to move the
other, it was submitted that the aforesaid
recommendation
was
ultimately
not
accepted
by
the
Legislature.
This
submission was addressed in light of the
provisions made in sub-section (7) which
provides that in case the High Court is
moved by an application for grant of
anticipatory bail, then that individual
cannot thereafter invoke the jurisdiction
of the Court of Sessions.