IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5449 of 2009 MD.SHOHRAB ALI @ SOHRAB & ANR Versus STATE OF BIHAR ----------- 3 25 .2.2009 This case arises out of Kishanganj P.S. Case No. 253 of 2006 giving rise to Special Case No. 16 of 2006. This matter has come under the heading “for orders” as the office of this Court has held that the Anticipatory Bail Application under Section 438 of the Code of Criminal Procedure is not directly maintainable in the High Court. The facts of this are that the petitioners were not sent up for trial in a case under Section 22 of the Narcotic Drugs and Psychotropic Substance Act and have been summoned under Section 319 of the Code of Criminal Procedure. Pankaj Kumar Sinha along with Diwakar Sinha and Kamal Kishore Jha counsel appearing on behalf of the petitioners submits that under Section 438 of the Code of Criminal Procedure, “any person has reason to believe that he may be arrested on a accusation of having committed a non-bailable offence, may apply to the High 2 Court or the Court of Session for a direction under Section 438 of the Code of Criminal Procedure”. There can be no doubt about the interpretation of Section 438 of the Code of Criminal Procedure as it confers concurrent jurisdiction to both the High Court and Sessions Judge to consider an application for grant of anticipatory bail. In 1985, this question came for consideration before this Court in the case of Meena Devi & Ors. Vs. The State of Bihar, reported in 1985 P.L.J.R. 596. This Court after considering the scope and ambit of Section 438 of the Code of Criminal Procedure observed that the discretion of the Court to grant anticipatory bail if an application is moved directly to it would depend upon the facts of the case. The Court cannot refuse to entertain the anticipatory bail application on the ground that it has been moved directly to the High Court. In fact at paragraph 16 of the judgment is the conclusion which was drawn by this Court while considering the above matter which I am quoting below. I, thus, conclude that- (1) Any person having reasonable 3 apprehension that he may be arrested on allegations that he has committed a non bailable offence can move this Court or the Court of Session for bail in anticipation of arrest. On the ground that he has not moved the Court of Session, this Court cannot decline to entertain the application; (2) The Court, while examining whether the petitioner should be protected in terms of Section 432 of the Code of Criminal Procedure or not, shall draw its own conclusion and shall decide the case on merits; (3) I shall not be unreasonable or improper to permit the petitioner to renew his prayer for anticipatory bail before the Session Judge after his application for anticipatory bail is either dismissed as withdrawn or permitted to be withdrawn by this Court. Any apprehension that such order shall operate as a precedence, in my view, is unfounded; and (4) While holding enquiry in course of hearing the application for anticipatory bail, this Court may hold that the petitioner should first move the Session Judge. But it shall always be open to this Court to examine 4 the police papers and other materials, if necessary. Similarly in the case of Sidheshwar Yadav Vs. State of Bihar, reported in 2004(4) P.L.J.R. 418, this Court was considering the jurisdiction of the High Court under Section 438(A) when an accused was summoned under Section 319 of the Code of Criminal Procedure to face trial. This Court granted bail to the petitioner after holding that on the facts of the case that the petitioner was entitled to anticipatory bail. In the present case the facts are that one pound of Heroine was recovered and two persons were arrested on the spot whereas several of them managed to escape. Their names are mentioned in the First Information Report and the matter was kept pending as far as the involvement of these persons were concerned. By the impugned order dated 18.2.2008 has observed “that I do not think it proper to discuss the evidence on record in detail, however, on a prima facie perusal of evidence it reflects that the witnesses have stated about the other persons as participant in the 5 occurrence who had fled away and their names have already been mentioned in the First Information Report”. As observed earlier, this is a case under Section 22 of the Narcotic Drugs and Psychotropic Substance Act,1985 and as such without considering the prima facie evidence which has come against the petitioners, I think it would be proper for the petitioners to move the concerned Court for anticipatory bail before this Court can consider their application so that this Court is apprised of the prima facie material against the petitioners. In the result, I direct that the petitioners of this case should move the Sessions Judge/Special Judge for grant of anticipatory bail before moving this Court under Section 438 of the Code of Criminal Procedure. This anticipatory bail application is disposed of with the aforesaid observations and directions. Sanjay/A.F.R. (Sheema Ali Khan, J.)