No Strict Construction May Limit the Judge’s Authority to Move Anticipatory Bail to Either the High Court or The Sessions Court Judiciary of Delhi
Title: PANKAJ BANSAL v. STATE (GOVT. OF NCT DELHI) & ANR.
Date of order: 9th June 2023, BAIL APPLN. 2031/2023 CRL.M. A 16390-16391/2023
CORAM: HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
Facts of the Case
The High Court of Delhi has declared that a stringent interpretation of section 438 of the Criminal Procedure Code cannot limit an applicant’s right to pick either the High Court or the trial court for submitting an anticipatory bail application. Both the Supreme Court and the High Court have concurrent competence to hear matters involving anticipatory bail, according to an analysis of the rule by a vacation bench of Justice Chandra Dhari Singh.
The Applicant may choose between the High Court and the Court of Session. There is no requirement that the Applicant come here before any other court. Since both courts have concurrent jurisdiction and the same cannot be curtailed by construing the provision of Section 438 of the Cr.P.C. narrowly, the court ruled it is up to the applicant to decide which court to go to. It went on to say that the clause can be rendered “constitutionally vulnerable” by the “over-generous infusion of constraints and conditions” that aren’t present in Section 438, because the right to personal freedom cannot depend on compliance with unjustified restrictions.
Since the defendant has not yet been found guilty of the crime for which he has applied for anticipatory bail, the court has stated that “Section 438 is a procedural provision that is concerned with the personal liberty of the individual.”
Justice Singh added that the helpful provision of Section 438 must be preserved rather than discarded, adding context by saying that this was said in light of the earlier view that the ability to grant anticipatory bail was extraordinary in nature and should be exercised only in extraordinary cases.
Courts Analysis and Decision
While giving Pankaj Bansal and Basant Bansal temporary protection in a money laundering case lodged by the Enforcement Directorate in 2021, Justice Singh made the above findings. before the ECIR filed under sections 3 and 4 of PMLA, the petitioners filed for anticipatory bail before the High Court. Given that neither petitioner was identified in the ECIR, neither had they been accused of committing a Scheduled Offence under the PMLA, nor had they been called in for questioning by the investigating agency, the court granted the relief.
The court said it would hear the case again on July 5 because “interim protection may be granted to the Applicant until the next date of hearing,” citing “the interest of justice” and “considering the entirety of the matter and the mandate of Article 21 of the Constitution of India. “Therefore, the judge is of the view the aforementioned Court has the authority to hear the request for bail under the provisions of section 438 even when the petitioner did not contact the Court of Sessions first,” the judge said.
Judgment- click here to review the judgment
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Written by- Anushka Satwani