IMTIYAZ AHMAD QURESHI Vs. UNION TERRITORY OF J&K

JUDGEMENT

(1.) The petitioners have invoked the jurisdiction of this Court under Sec. 438 of Cr.P.C, 1973 seeking bail in anticipation of their arrest in FIR No.16/2022, for offence under Sec. 341, 323 and 354 IPC registered with Police Station Gund, Ganderbal.

(2.) It appears from the contents of the petition and the documents attached thereto that the petitioners have already invoked the jurisdiction of Principal Sessions Court Ganderbal by filing an application under Sec. 438 Cr.P.C for grant of bail in the same FIR. It appears that the learned Sessions Judge has passed an ex-parte order dtd. 25/3/2022 directing that in the event of the arrest of the petitioners they be admitted to ad-interim anticipatory bail till 6/4/2022, except in the case they have been booked for offences, triable by Special Judge/Designated Court, under Sec. NDPS Act/Forest Act, offence relating to LAWDA, offences under Sec. 188, 304-A, 304-B, 326- A, 363, 370, 376, 109, 376-A, 376-C, 376-D, 376-DB, 376-E of IPC and the offences under POCSO Act or the offence against women or child. The application has been posted for 6/4/2022. Learned counsel for the petitioners has contended that because the ad-interim bail granted by Sessions Court does not cover offence under Sec. 354 IPC, as such, the petitioners have invoked the jurisdiction of this Court, even though he has admitted that the bail application of the petitioners is still pending before the Court of Sessions Judge Ganderbal.

(3.) Sec. 438 of Cr.P.C gives concurrent jurisdiction to the High Court and Court of Sessions to grant of bail in anticipation of arrest to a person in an offence of non-bailable nature. Normally, for grant of anticipatory bail, a person should, in the first instance, approach Sessions Court prior to approaching the High Court. It is only in exceptional circumstances that the accused can approach the High Court directly without first exhausting his remedy before the Sessions Court.