Section-438 CrPC does not mandates an aggrieved person to move to session’s court first, special circumstance must be shown to directly approach High Court - Synopsis
Lakshay Parmar 13 Mar 2020

Case name: Ankit Bharti v. State of UP & Anr. Crl Misc Anticipatory Bail Application U/S 438 CrPC No. 1094/2020

A five-judge bench of the Allahabad High Court (hereinafter referred to as “the court”) stated in a significant ruling that, under special circumstances, an individual apprehending arrest may approach the High Court directly instead of the sessions court in order to seek anticipatory bail.

All the judges of the court observed,

Section 438 CrPC on its plain terms does not mandate or require a party to first approach the Sessions Court before applying to the High Court for grant of anticipatory bail. The provision as it stands does not require an individual first being relegated to the Court of Sessions before being granted the right of audience before this Court. However, special circumstances must necessarily exist and be recognized as such before high court jurisdiction is invoked.”


The bench also clarifies that it cannot determine the special circumstances without understanding the facts and issues involved in a case and also further contented that, such circumstances must be left to the ‘judicious discretion’ of the court before which the bail is filed. However, the bench said that the special circumstances must be left for consideration by the judge to whom the petition is filed and a decision must be taken, taking into account the facts and circumstances of the particular cause.


Further the court stated that there can never be a straightforward explanation of what specific situations would qualify. The grounds on which a request for an anticipatory bail can be initiated before the High Court cannot be put in standard terms. Though, the bench also observed that it was appropriate to consider solid, compelling and special circumstances to approach the High Court in the first place without exhausting the avenue available to the Court of Sessions.


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