Khursheed Ahmad Kanna vs UT Of J&K

Sanjay Dhar, J

Petitioner has invoked jurisdiction of this Court under Section 439 Cr. P. C seeking bail in FIR No.09/2021 for offences under Section 7(2) of Prevention of Corruption Act, 1988 read with Section 120-B IPC registered with Police Station, ACB, Baramulla.

Briefly stated, the case of the prosecution is that a joint surprise check was conducted by officers/officials of Police Station, ACB, Baramulla, to ascertain the veracity of allegations that ARTO, Kupwara, had planted a person, namely, Bilal Ahmad Sheikh to run the affairs of his office including those relating to travel test, replacement of driving licence, fitness, learning licence, audit approval registration and print card for minting money by illegal means. During the surprise check, the co-accused Bilal Ahmad Sheikh was found actively involved in conducting the driving tests with the officials of ARTO, Kupwara, which include the petitioner herein and Abdul Hamid Bhat. The alleged broker, Bilal Ahmad Sheikh, was found to be in possession of list of applicants and he was occupying one of the chairs besides two Motor Vehicle Inspectors including the petitioner herein. During search of the car of alleged broker, 138 original driving licences were recovered from it. Besides this, certain incriminating material like provisional appointment slips for driving tests, application reference slips, application for addition of new class of vehicles, journey sheets of vehicles, transport plans, learners licence, handwritten details of undergone tests were also recovered. It was found that broker Bilal Ahmad Sheikh, out of the money that he was collecting from applicants, used to pay Rs.1000/ each to ARTO and two Motor Vehicle Inspectors for LMV licence and Rs.1500/ each for commercial vehicles. During investigation of the case, search of residential houses of was conducted and a huge cash of Rs.16,35,500/ together with certain incriminating documents were recovered. Investigation revealed a complete nexus amongst the accused officials of RTO, Kupwara, including the petitioner herein with co-accused Bilal Ahmad Sheikh

I have heard learned counsel for the parties and perused the record including the Case Diary.

A perusal of the Case Diary reveals that co-accused Mukhtar Ahmad, Abdul Hamid and Bilal Ahmad Sheikh have been enlarged on interim bail by the Court of Special Judge, Anticorruption, Baramulla. It seems that the application for grant of bail of these accused persons has not been finally decided by the learned Special Judge till date.

The petitioner has approached this Court directly invoking jurisdiction of this Court under Section 439 Cr. P. C and on 08.09.2021, interim bail has been granted to the petitioner subject to certain conditions which is still in force.

Respondent has, in its reply, submitted that the petitioner has also moved another bail application before the learned Special Judge but during the course of arguments, learned counsel for the petitioner has submitted that the said bail application has been withdrawn by the petitioner

Although Section 439 Cr. P. C gives concurrent jurisdiction to High Court and Sessions Court to consider a bail application of an accused yet, as a matter of ordinary practice, High Court does not entertain application of a person under Section 439 Cr. P. C unless the said person has approached and exhausted the remedy before the Court first instance. It is only in exceptional cases and in special circumstances the High Court may entertain an application under Section 439 of Cr. P. C without insisting upon filing of such application before the Court of Session in the first instance.

The issue whether or not an application under Section 439 of Cr. P. C should ordinarily be entertained by High Court without the applicant having exhausted remedy of approaching Sessions Court, has been deliberated upon in several judgments by different High Courts. In Smt. Savitri Samso vs. State of Karnataka, 2001 CriLJ 3164, Karnataka High Court has, while dealing with this issue, observed as under:

"5. In my view and as is the practice although the High Court has concurrent jurisdiction with Sessions Court to grant bail, it is desirable that the ordinary practice should be that the lower Court should be first moved in the matter, though in exceptional case and special circumstances, the High Court may entertain and decide an application for bail either under Section 438 or 439 of the Cr. P.C. This is specially important because any expression of opinion by the superior Court, is likely to prejudice if not frequently, in cases few and far between, the trial in the lower Court. Hence, in my view, it is only in exceptional circumstances that an application for bail should be made directly to the High Court and in the absence of special circumstances the application should not be entertained by the High Court.

By looking into analogous provision in the Code it is normally to be presumed that the Court of Sessions would be first approached for grant of bail, unless an adequate case for not approaching that Court has been made out.

I am of the opinion that it would be a sound exercise of judicial discretion not to entertain each and every application for either anticipatory or regular bail directly by the High Court bypassing the Court of Sessions.

In my view ordinarily, the Sessions Court is nearer to the accused and easily accessible. It will be more speedy disposal since the investigation reports or case papers also can be summoned immediately. There is no reason to believe that Sessions Court will not act in accordance to law and pass appropriate order. In a given case if any accused is grieved his further remedy would be to approach the High Court. In such case, the High Court will also have the benefit of the reasons given by the Sessions Court. As such, looking at the case from any angle, in my view, simultaneous filing of application for bail in both the Sessions Court and the High Court is impermissible. Hence, in the present case also, this petition before this Court is not maintainable one, in view of the admitted fact that the petitioner has already approached the Sessions Court, Gulbarga, for the same relief and the Sessions Court has yet to decide the same.

Madhya Pradesh High Court has, in the case of Smt. Manisha Neema vs. State of M. P, 2003(2) MPLJ 587, while dealing with this issue, made the following observations:

"Long back, this Court, in the case of Dainy alias Raju v. State of M.P. (1989 JLJ 232) Hon. Justice R.C. Lahoti (now Judge of the Supreme Court) has held that though under Sections 438 and 439 of the Cr. PC there is concurrent jurisdiction, but the application should be filed first before the Court of Session and on failure before that Court, the application should be filed before the High Court accompanied with the first order of Sessions Court and also mentioning all the relevant facts.

His Lordship, in Paras 19, 20 and 21 has given detailed reasons for holding so. For convenience, the same are reproduced below :--

"19. The jurisdiction of High Court and Court of Session under Section 439, Cr. PC being concurrent, as a matter of practice, the bail applicants are required ordinarily to approach the Court of Session in the first instance and if relief is denied they approach the High Court under Section 439, Cr. PC itself, not as a Superior Court sitting in appellate or revisional jurisdiction over the order of the Court of Session, but because the Superior Court can still exercise its own jurisdiction independently, unaffected by the result of exercise by the Court of Session because the latter is an Inferior Court though vested with concurrent jurisdiction. The application seeking bail before the High Court is accompanied by an order of the Court of Session rejecting a similar prayer. The idea is to provide the Superior Court with an advantage of apprising itself with the grounds as considerations which prevailed with the Court of Session in taking the view which it did. It has come to my notice in several cases that the first order of the Court of Session rejecting a prayer for bail is a detailed order and when another application is repeated before the same Court, the subsequent order rejects the application simply by stating that earlier application having been rejected on merits, the Court did not see any reason to take different view of the matter. The latter order is not a detailed one. This subsequent order is filed before the High Court to fulfill the formality but the inevitable consequence is that the High Court is deprived of the opportunity of apprising itself with the reasons which formed foundation for rejection of the prayer by the Sessions Court. The possibility cannot be ruled out that such a course is adopted purposely because the bail applicant does not feel comfortable before the High Court in the presence of a detailed order of the Court of Session rejecting the prayer for bail."

The afore-quoted observations of the Madhya Pradesh High Court were relied upon by Delhi High Court in Gopal Goyal vs. State of NCT of Delhi (Bail Application No.1565/2012 decided on 19th of November, 2012).

From the analysis of the case law on the subject, it is clear that though Section 439 of Cr. P. C confers concurrent jurisdiction on the High Court and the Sessions Court, an application should ordinarily be filed before the Sessions Court at the first instance and not directly before the High Court. For filing an application directly before the High Court, the applicant has to demonstrate and satisfy the High Court that there exist exceptional, rare and unusual reasons for the applicant to approach the High Court directly.

In the instant case, the petitioner has approached this Court directly without exhausting the remedy before learned Special Judge and even if petitioner did approach the said Court, yet he abandoned the application midway without actually exhausting the said remedy as the petitioner withdrew the said application. There are no exceptional circumstances in the case in hand which would entitle the petitioner to move the bail application directly before this Court.

Apart from the above, since the Court of first instant i.e., Special Judge, Anticorruption, Baramulla, is already seized of the matter pertaining to grant of bail to co-accused, it will be appropriate if the bail application of the petitioner is also considered by the same Court along with bail application of the co-accused. This is important because any expression of opinion by this Court is likely to influence the outcome of the bail application filed by the co-accused before the Special Court.

In view of the aforesaid discussion and without expressing any opinion on the merits of the case, the petition is dismissed with liberty to the petitioner to approach the Court of learned Special Judge, Anticorruption, Baramulla, with an application for grant of bail, if he so desires. If and when such an application is made before the said Court, the same shall be dealt with and disposed of on its own merits in accordance with law. The interim protection granted to the petitioner vide interim order dated 08.09.2021 shall remain in force for a further period of ten days from today so as to enable the petitioner to approach the Court of Special Judge, Anticorruption, Baramulla.

The petition stands disposed of.

CD file be returned to the learned counsel for the respondent.