HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU Bail App No. 165/2024 Mohd Azam and others ….applicant Through :- Mr. R.D.Singh Bandral Advocate. V/s UT of Jammu and Kashmir and another Through :- Mr. Eishan Dadeechi G.A. Mr. Koshal Parihar Advocate for R-2 CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT(ORAL) 1 This is an application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, corresponding to Section 438 of the Code of Criminal Procedure, 1973 (CrPC) seeking grant of anticipatory bail in FIR No.0050 of 2024, dated 23.06.2024, registered at Police Station Mandi, District Poonch for offences under Sections 458,354, and 147 IPC. 2 On 24.07.2024, while issuing notice to the respondents, this Court had granted interim protection to the applicant with a direction that in the event of his arrest, he shall be released on bail subject to the following conditions: (i) That the petitioners/accused shall cooperate with Investigating Officer as and when directed by him. (ii) That the petitioners/accused shall not directly or indirectly make any incumbent, threat or promise to any person/s acquainted with the facts of the case so as to dissuade him/them from disclosing such facts to the court or to any police officer. 2 (iii)That the petitioners/accused shall not leave the UT of J & K without prior permission of this Court. (iv) That the petitioners/accused shall not repeat the commission. (v) In case of any recovery from or at the instance of the petitioners, they shall be deemed to be in the custody for the purpose of Section 27 of the Evidence Act corresponding to Section 23 (2) of Bharatiya Sakshya Adhiniyam, 2023. 3 When the matter was taken up today, learned counsel for the respondents, at the very outset, raised a preliminary objection with regard to maintainability of the present bail application on the ground that the applicant ought to have approached the Court of Sessions in the first instance, in view of the concurrent jurisdiction conferred upon the High Court and the Sessions Court. 4 Heard learned counsel for the parties. The issue of maintainability is taken up for consideration at the threshold. 5 Learned counsel for the applicant submits that Section 483 of BNSS corresponding to Section 439 CrPC confers concurrent jurisdiction on the High Court and the Court of Sessions to entertain applications for bail. It is submitted that there is no statutory bar which prohibits an applicant from directly approaching the High Court without first approaching the Sessions Court. 6 Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, being relevant to the present context, is reproduced hereinbelow: “483. Special powers of High Court or Court of Session regarding bail. (1)A High Court or Court of Session may direct, 3 (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 480, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice: Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application. (2)The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023. (3)A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody”. 7 The plain language of Section 483 of BNSS confers independent and concurrent jurisdiction on both the High Court and the Court of Sessions to entertain bail applications. 8 In K.L. Verma v. State, (1998) 9 SCC 348, the Supreme Court has held that there is no statutory bar to the High Court entertaining a bail application directly. However, as a matter of judicial discipline and propriety, the High Court generally requires the petitioner to approach the Sessions 4 Court first. Similarly, in Ravindra Saxena v. State of Rajasthan, 2010 SCC OnLine Raj 2471, the Rajasthan High Court has reiterated that merely because the petitioner has not moved the Sessions Court, it cannot be a ground to reject the bail application on the ground of maintainability. It has been held that jurisdiction of the High Court under Section 439 CrPC is concurrent with that of the Sessions Court. Hence, the jurisdiction of the High Court to entertain the application cannot be doubted. 09 Learned counsel for the respondents submit that even if the High Court has concurrent jurisdiction, it should decline to entertain such applications in the first instance to prevent judicial indiscipline. 10 As per the provisions contained in Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the High Court and the Court of Sessions are vested with concurrent jurisdiction in matters relating to the grant of bail to a person apprehending arrest. There is, thus, no statutory bar on the High Court to entertain an application for anticipatory or regular bail directly. However, there is a series of judgments rendered by the Supreme Court as well as various High Courts which lay down that, ordinarily, an accused should first approach the Court of Sessions before invoking the jurisdiction of the High Court. In K.L. Verma v. State of U.P., (1998) 9 SCC 348, the Supreme Court held that while the High Court has jurisdiction to entertain bail applications directly, as a matter of judicial discipline and propriety, the petitioner should normally approach the Sessions Court first. Similarly, in State of M.P. v. Ram Krishna Balothia, (1995) 3 SCC 221, it has been observed that the High Court should generally not entertain bail applications in the first instance unless exceptional circumstances exist. In Prahlad Singh Bhati v. NCT of Delhi, (2001) 4 SCC 280, the Supreme Court reiterated the 5 principle that the High Court has concurrent jurisdiction, but must exercise it sparingly in cases where the accused has not approached the court of first instance. 11 From the foregoing analysis of law, it is well settled that, in exceptional cases, the High Court is justified in exercising its jurisdiction to entertain bail applications directly. 12 In the present case, it is relevant to note that CRM(M) No. 569/2024, challenging the FIR which is subject matter of the present bail application, is pending before this Court and notice has been issued therein. Having regard to the fact that the subject matter of the present bail application is already under consideration of this Court in another petition, therefore, in such circumstances, this Court is of the opinion that the application of the accused for grant of anticipatory bail can be entertained without asking him to approach the court of first instance. Furthermore, learned counsel for respondent No.1 submits that the applicant is cooperating with the investigation and has not violated any of the conditions imposed by this Court vide order dated 24.07.2024, while granting interim protection. The respondents have not placed on record any material to justify the arrest of the applicant. 13 In view of the above and upon considering the overall facts and circumstances of the case, particularly the fact that the applicant has cooperated with the investigation, and that no breach of any condition of the interim order dated 24.07.2024 has been reported, this Court is of the opinion that the applicant has made out a case for confirmation of interim protection. Accordingly, order dated 24.07.2024 granting interim anticipatory bail is 6 made absolute, subject to the same terms and conditions as contained in the interim order dated 24.07.2024. Disposed of accordingly. (MOKSHA KHAJURIA KAZMI) JUDGE Jammu 02.06.2025 Sanjeev Whether approved for judgment: Yes/No