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An application under Section 439 of Cr.P.C should ordinarily be filed before the Sessions Court at the first instance and not directly before the High Court: High Court of J&K and Ladakh

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 the application of a person under Section 439 Cr. P. C unless the said person has approached and exhausted the remedy before the Court’s first instance as held by the Hon’ble High Court of J&K and Ladakh through the learned bench of Justice Sanjay Dhar in the case of Khursheed Ahmad Kanna Vs UT of J&K[CrlM No.991/2021].

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, to run the affairs of his office 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 a list of applicants and he was occupying one of the chairs besides two Motor Vehicle Inspectors including the petitioner herein. During a search of the car of an alleged broker, 138 original driving licenses were recovered from it. 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 license and Rs.1500/ each for commercial vehicles. During the investigation of the case, a search of residential houses of co-accused Mohammad Mukhtar and Bilal Ahmad Sheikh was conducted and huge cash of Rs.16,35,500/ together with certain incriminating documents was recovered. Investigation revealed a complete nexus amongst the accused officials of RTO, Kupwara, including the petitioner herein with co-accused Bilal Ahmad Sheikh.

The Hon’ble High court, after a perusal of the facts, observed that the petitioner had approached this Court directly invoking the jurisdiction of this Court under Section 439 Cr. P. C and on 08.09.2021, interim bail had been granted to the petitioner subject to certain conditions which are still in force.

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the course of arguments, learned counsel for the petitioner had submitted that the said bail application had been withdrawn by the petitioner.

The Hon’ble High Court after hearing both the parties and relying on the judgments of Smt. Savitri Samso vs. the State of Karnataka, Smt. Manisha Neema vs. State of M. P, and Gopal Goyal vs. State of NCT of Delhi concluded by stating that “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.”

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Judgment Reviewed by – Aryan Bajaj

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