Underscoring that unless an accused has exhausted the remedy before the Sessions Court for anticipatory bail, the Jammu and Kashmir High Court held that only in special circumstances it may entertain an application of an accused under Section 438 of CrPC.
“It is only in exceptional cases and special circumstances that the HC may entertain an application under Section 438 of CrPC without insisting upon the filing of such application before the Sessions Court in the first instance,” a bench of Justice Sanjay Dhar said.
The court said that although Section 438 CrPC gives concurrent jurisdiction to HC and Sessions Court to consider a bail application of an accused, as a matter of ordinary practice, HC does not entertain the application unless the person has approached and exhausted the remedy before the court of the first instance.
The court said this while dismissing an application for anticipatory bail of an accused.
The petitioner through counsel contended that he could not avail the remedy of anticipatory bail before the designated Court of Additional Sessions Judge, Baramulla because the Police had kept a watch on the main gate of that court and he was apprehending arrest over there.
“A perusal of the application reveals that before invoking the jurisdiction of this court, the petitioner has not exhausted the remedy of making an application for grant of anticipatory bail before the Special Court concerned,” the court said.
Underscoring that in the instant case, the petitioner had not disclosed any compelling or special circumstances, the court said: “The only contention of the petitioner is that he is apprehending his arrest at Baramulla court as the Police are keeping watch over there.”
The court said that the petitioner was seeking bail in anticipation of his arrest and had physically surrendered himself before the court at the time of applying.
It said that the contention that he is apprehending arrest in the court complex at Baramulla is without any substance as he is not required to physically attend the court.
However, the court said that it had not expressed any opinion on the merits of the case and that the petitioner could approach the court of the first instance.
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