HIGH COURT OF JAMMU AND KASHMIRAND LADAKH AT JAMMU Bail App No. 112/2025 c/w CRM(M) No.354/2025 Deepak Kumar Deepak Kumar and others .....Petitioner (s) Through :- Mr.Abrar Ahmad Advocate. V/s UT of Jammu and Kashmir and others UT of Jammu and Kashmir and others .....Respondent(s) Through :- Mr. Bhanu Jasrotia G.A. Mr. Anuj Dewan Raina Advocate Coram:HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT CRM(M) No.354/2025 1 Through the medium of present petition, the petitioners have challenged two FIRs: one bearing No. 27/2025 for offences under Sections 126(2), 115(2), 351(2), 352 and 3(5) of the BNSS registered with Police Station, Dharamsala, Rajouri; and theother bearing FIR No. 28/2025 for offences under Sections 333, 115(2), 296, 79, 351(2) of the BNSS registered with the same Police Station. While FIR No. 27/2025 has been lodged by respondent No.3 against all the petitioners, FIR No. 28/2025 has been lodged by respondent No.4 against petitioner No.1 only. The subject matter of the incident in FIR No. 27/2025 pertains to 09.03.2025, whereas thesubject matter of the incident in FIR No. 28/2025 pertains to 04.03.2025. 2 2 At the very outset, learned counsel for the petitioner was requested to satisfy this Court as to how a joint petition for challenging two FIRs on behalf of thepetitioners is maintainable.Faced with this situation, he has sought permission of this Court to withdraw this petition. 3 However, this Court feels that the issue needs to be determined in thelight of facts peculiar to the present petition. As already stated, the incidents which are the subject matter of present petitions are distinct from each other. Even thecomplainants in the two FIRs are also different. While FIR No 27/2025 has been lodged by respondent No.3, FIR No.28/2025 has been lodged by respondent No.4.The accused persons implicated in the aforesaid two FIRs are also notidentical. In FIR No. 27/2025, all the petitioners have been impleaded as accused,whereas in FIR No.28/2025, only petitioner No.1 has been impleaded as an accused. A single petition challenging two different FIRs is not maintainable when the FIRs arise from distinct causes of action.Each FIR represents a separate incident based on a separate set of facts. Therefore, each of the two FIRs, which are the subject matter of this petition, has to be dealt with individually, particularly when there is no commonality of facts or law involved. As the impugned FIRs are based on distinct and unrelated incidents, a single petition isnot maintainable. Thus, the instant petition is otherwise also not maintainable. 4 However, having regard to the fact that the learned counsel for thepetitioners has sought permission to withdraw this petition, the same isdismissed as withdrawn,leaving it opento the petitionerstochallenge the impugned FIRs by filing separate petitions. 3 Bail App No. 112/2025 1 Though the medium of present application, the applicant is seeking bail in anticipation of his arrest in FIR No. 28/2025 for offences under Sections 333, 115(2), 296, 79, 351(2) of BNSS registered with Police Station, Dharamsala, Rajouri . 2 It appears that the petitioner has approached this Court directly, invoking the jurisdictionof this Court under Section 484 of BNSS without first approaching the Court of Sessions. 3 Mr. AnujDewanRaina, learned counsel for respondent No.3, has raised a preliminary objection with regard to maintainability of this bail application, on the ground that there are no specialcircumstances in this casethat would persuade this Court to entertain the present bailapplicationwithout asking the petitioner to approach the Court of first instance. He has submitted that theapplicant had, infact, approached the Court of learned Principal Sessions Judge, Rajouri by way of an anticipatory bail application, whichisstill pending before the said Court. 4 With regard tomaintainability of the present bail application, the learned counsel for the petitioner has submitted that the bail application filed by the applicant before the Court of learned Principal Sessions Judge, Rajouri, has been withdrawn, though this fact does not find mention inthe instant application.He has further submitted that this Court, in the case of Khalid Hussain and others vs. UT of Jammu and Kashmir, (Bail App No. 223/2023, decided on 20.11.2023), has observed that there is no bar to the High Court entertaining a bail application under Section 438 of Cr.P.C without the applicant having first approached the Court of Sessions. 4 5 I have heard learned counselfortheparties on thequestionofmaintainability of this application and perused record of the case. 6 The issue as to whether or not, an application for grant of bail, either under Section 438 of the Cr.P.C, or under Section 439 of the Cr.P.C should be entertained by the High Court withouttheapplicant first exhausting the remedy of approaching the Court of Sessions has been dealt with by this Court as well as by several High Courts across the Country, and presently the issueis under consideration before the Supreme Court in the case of Gauhati High Court Bar Association vs. State of Assam and others, (2023) LiveLaw SC 177.It would be apt to refer to some of these decisions. 7 The High Court of Karnataka, in the case of Smt. Savitri Samso vs. State of Karnataka, 2001 CriLJ 3164, has, while dealing with the 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. 6. 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. 5 7. 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. 8. 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”. 8. Again, the Madhya Pradesh High Court, in the case of Smt. Manisha Neema vs. State of M. P, 2003(2) MPLJ 587,while dealing with the 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 6 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." 9 The Delhi High Court in the case of Gopal Goyal vs. State of NCT of Delhi (Bail Application No.1565/2012, decided on 19th of November, 2012), has also taken the same view. 10 This Court, in the case of Khursheed Ahmad Kanna vs UT of J&K (Bail App No. 93/2021, decided on06.10.2021), has also taken the viewthatalthoughSection 439 of the 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. It has been further held that, for filing an application directly before the High Court, the applicant has to demonstrate and satisfy the High 7 Court that there exist exceptional, rare, and unusual reasons for the applicant to approach the High Court directly. 11 A similar view has been takenby two other Benches of this Court in the cases of Rouf Ahmad Mir vs SSP&another (Bail App No. 64/2022, decided on 03.06.2022) and Ali Mohd. vs. UT of Jammu and Kashmir and others (Bail App No. 13/2022, decided on 18.04.2022) However, in Khalid Hussain’s case(supra), a Coordinate Bench of this Court has expressed reservations about the view taken by this Court in the aforenotedcases and observed that there is no bar to the High Court to entrain a bail application under Section 438 of the Cr.P.C directly without asking the applicant to approach the Court of Sessions in the first instance. However, the learned Single Judge in the said case has, instead of referring the matter to aLarger Bench, thought it appropriate to await the decision of the Supreme Court in the Gauhati High Court Bar Association’s case(supra). 12 There cannot be any dispute with regard to the legal position that both the High Court and the Sessions Court are vested with concurrent jurisdiction so far as deciding a bail application under Sections 482 or Section 483 of the BNSS are concerned. There can also be no dispute with regard to the legal position that the power of the High Court to entertain a bail application, either regular or anticipatory, are unfettered. However, for more than one reason it is desirable that, ordinarily, an applicant should approach the Court of firstinstance before moving the High Court. This practice is desirable because if an applicant approaches the High Court directly and is unsuccessful in obtaining the relief, it is likely to prejudice him or her, if at a later stage, he or she approaches the Court of first instance. There is another practical reason for 8 supportingthis view. The Sessions Courts are generally nearer to and accessible for the accused and, therefore, it would be more convenient for the accused to approach the Sessions Court in the first instance. This would not only provide easier access to the Court for the accused, but would also lead to the speedy disposal of the case. In a given case, if an accused is aggrieved by the order passed by the Sessions Court, it is open to him to approach the High Court by way of another application,even without there being any change in circumstances, as the High Court, being a superior Court, has the jurisdiction to entertain a bail application even after rejection of the same by the Court of Sessions. Another advantage of approaching the Court of Sessions in the first instance is that once the bail application is dealt with by the Court of Sessions, the High Court will have the benefit of apprising itself of the considerations that prevailed with the Court of Sessions in taking a particular view. 13. The Practice of not entertaining bail applicationsdirectly in the High Court is not based upon any statutory bar,rather it is a sound exercise of judicial discretion. In this regard analogy can be drawn from reluctance of High Court to entertain writ petitions under Articles 226 and 227 of the Constitution in cases where alternative efficacious remedy is available to a litigant. Though there is no bar to the High Court to entertain such petitions even in cases where an alternative and efficacious remedy is available, still then the High Courts have put a self-imposed restraint in entertaining petitions in such cases.By the same logic and reason it is desirable that normally an applicant should be asked to approach the court of sessions before entertaining his bail application by the High Court. Doing so would only be a sound 9 exercise of discretion by the High Court asit would be a self-imposed fetter on the power of the High Court and not a case of rewriting the provision of BNSS which vests concurrentjurisdiction upon High Court and the Court of Sessions in the matters relating to grant of bail. In fact no absolute bar to entertain a bail application directly by the High Court is sought to be created by adopting the aforesaid course. In appropriate case the High Court would be free to entertain bail applications directly. 14. Apart from the above, if the High Courts start entertaining each and every bail application directly without asking the applicantto first approach the Court of Sessions, then the High Courts would be flooded with bail applications, which will adversely impact the speedy determination of important legal and constitutional issues arising in other matters pending before the High Courts. Thus, this Court is of the considered opinion that in the normal course, the High Court should not entertain bail applications directly without asking the applicant to approach the court of first instance. It is only in desirableandappropriate cases where the High Court should exercise its discretion to entertain the bail application directly. 15 Coming to the facts of present case, the petitioner is seeking anticipatory bail in connection with offences which are not of such serious nature and which do not involve circumstances as would make it risky for the applicant to approach the Court of first instance. In fact, the applicant had approached the learned Principal Sessions Court, Rajouri with a bail application and even a report was called by the said Court from the police. However,as per the learned counsel for the petitioner, the applicant abandoned his bail application. No reasons have been assigned by thepetitioner for 10 abandoning the remedy availed by him before the Court. In fact, in the present bail application, the petitioner has not even made a mention about filing of bail application before Principal Sessions Court, Rajouri. This fact has been conveniently suppressed from this Court. 16 For the foregoing reasons, I do not find any reason to entrain the present bail application directly without exhausting the remedy before the court of Sessions. The petition is, accordingly, dismissed, leaving it open to the petitioner to approach the Court of first instance. (SANJAY DHAR) Jammu JUDGE 25 .04.2025. Sanjeev (Secy) Whether the order is speaking: Yes Whether the order is reportable:Yes