Criminal Law : Anticipatory Bail : Practice in Gauhati

Direct Approach to High Court under S.438 of Code : Is it Proper?

Written by 

Vishal

S.438 of Code of Criminal Procedure, 1973 ("Code") refers to situation where "a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence" can apply either to High Court ("HC")  or to Court of Sessions ["CS"]. In certain situation, concerned Court under S.438(1) has power to "direct that in the event of arrest" such person "may be released on bail".

S.438 (2) empowers either HC / CS to impose conditions while issuing directions under S.438(1) of the Code. 

This section reflects that an accused should ideally move to CS first, instead of directly coming to HC. 

However, there are few cases before Hon'ble Gauhati High Court where accused had approached HC seeking pre-arrest bail. Some of them are as follows :-

Rajib Limbu v State of Assam : AB 1/2021 - There is no mention of any order of CS in the Judgment of HC.

Saburuddin v State of Assam : AB 5/2021 - There is no mention of any order of CS in the Judgment of HC.

Ajmol Hoque v State of Assam : AB 15/2021 - There is no mention of any order of CS in the Judgment of HC.

Mustt Fajila Khatoon v State of Assam : AB 50/2021 - There is no mention of any of CS in the Judgment of HC.

Pre-arrest bail was denied by a Ld. Court in Dibrugarh in Cr.Misc. (B) Case 52/2021 on 8 Feb 2021. However, in Cr.Misc. (B) Case 33 /2021 on 11 Feb 2021, same Ld. Judge at District Court of Dibrugarh had allowed the application under S.438 in another distinct case. 

This issue must be discussed whether the direct approach to HC under S.438 without even approaching CS is in accordance with S.438 or not. 

Vishal

Guwahati

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