Jammu & Kashmir High Court
Deepak Kumar vs Ut Of Jammu And Kashmir And Others on 25 April, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU AND KASHMIRAND LADAKH
AT JAMMU
Bail App No. 112/2025 c/w
CRM(M) No.354/2025
Deepak Kumar .....Petitioner (s)
Deepak Kumar and others
Through :- Mr. Abrar Ahmad Advocate.
V/s
UT of Jammu and Kashmir and others .....Respondent(s)
UT of Jammu and Kashmir and others
Through :- Mr. Bhanu Jasrotia G.A.
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 the other 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 the subject 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 the petitioners 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
the light 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 the complainants 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 not identical. 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 is not maintainable.
Thus, the instant petition is otherwise also not maintainable.
4 However, having regard to the fact that the learned counsel for the
petitioners has sought permission to withdraw this petition, the same is
dismissed as withdrawn, leaving it open to the petitioners to challenge 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 jurisdiction of this Court under Section 484 of BNSS without first
approaching the Court of Sessions.
3 Mr. Anuj Dewan Raina, 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 special circumstances in this case
that would persuade this Court to entertain the present bail application without
asking the petitioner to approach the Court of first instance. He has submitted
that the applicant had, in fact, approached the Court of learned Principal
Sessions Judge, Rajouri by way of an anticipatory bail application, which is
still pending before the said Court.
4 With regard to maintainability 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 in the 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 counsel for the parties on the question of
maintainability 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 without the applicant 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
issue is 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
6a 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 view
that although Section 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 Court that
7
there exist exceptional, rare, and unusual reasons for the applicant to approach
the High Court directly.
11 A similar view has been taken by 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 afore noted cases 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 a Larger
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
first instance 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
supporting this 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 applications directly 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 as it 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 concurrent jurisdiction 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 applicant to 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
desirable and appropriate 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 the petitioner 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/No
Whether the order is reportable: Yes/No
Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document
01.05.2025 22:44
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