No bar on HC entertaining a petition for anticipatory bail at first instance: Bench

The HC bench held that this court has nothing to say with regard to the merits of the case of the complainant with the petitioner in appeal before the sessions court.

THE PUNJAB and Haryana High Court has made it clear that there is no bar on it entertaining a petition for anticipatory bail at the first instance.

The bench of Justice Amol Rattan Singh has made the observation while hearing a petition filed by one Harbans Lal, seeking concession of anticipatory bail under the provisions of Section 438 CrPC.

A complaint under provisions of Section 138 of the Negotiable Instruments Act, 1881, had been filed by Amit Kumar — on three cheques allegedly issued by Lal in 2013 and 2014 for a total of Rs 9 lakh — claiming that they having been dishonoured. Lal was convicted by the JMIC, Pathankot, sentenced to two years in prison, and fined of Rs 9.50 lakh, to be paid to the complainant.

Lal then appealed against the JMIC order before sessions judge, Pathankot, and on account of the pandemic, on November 18, 2020, the hearing was deferred by that court to February 2, 2021. However, Lal could not appear before the Sessions (appellate) Court of Pathankot, following which his bail order was ordered to be cancelled and bail and surety bonds were forfeited to the State, and non-bailable warrants of arrest were issued by the sessions court. Lal thus moved the High Court seeking concession of anticipatory bail.

The HC bench held that this court has nothing to say with regard to the merits of the case of the complainant with the petitioner in appeal before the sessions court, the issue before this court presently only being as to whether the petitioner deserves to be admitted to anticipatory bail or not.

Lal through his counsel, advocate Dinesh Mahajan, contended before HC that since earlier, the appeal filed by him was not being heard by way of physical hearing due to the Covid-19 pandemic, thereafter, due to a “miscommunication” between his counsel and him, he was not informed of the order directing that he was to personally appear on the next date of hearing — February 2, 2021 — on which date his bail and surety bonds were ordered to be forfeited and the order granting him bail cancelled.

The counsel for respondent/claimant Amit Sharma however opposed Lal’s plea. Justice Amol Rattan Singh of the HC said that, “other than the judgment of the Madhya Pradesh High Court, no judgment cited before this court even by counsel for the respondent/claimant holds that in no circumstances can a High Court entertain a petition filed under Section 438/439 of the CrPC, even if such petition is filed at the first instance before the High Court.”

“I would see no reason (other than the fact that obviously this court has concurrent jurisdiction to entertain a petition under Section 438 of the CrPC), to hold that this court cannot, or should not, entertain this petition, especially as the order by which the petitioners’ bail and surety bonds were ordered to be forfeited was passed by the learned sessions judge himself,” added Justice Amol Rattan Singh.

The order of Justice Singh added that: “In my opinion, that would be reason enough for the petitioner to approach this court directly for grant of anticipatory bail to enable him to appear before that court in order to continue ‘with his appeal’ before that court.”

“…Of course, having said that, it needs to be reiterated, as has been held by a co-ordinate bench of the Delhi High Court in Jasbir Singhs’ case (supra), as also by the Rajasthan High Court in Hajialishers’ case (supra), that a High Court should only entertain any such application at the first instance in exceptional circumstances, or at least not in ordinary circumstances, after which of course it would be within its jurisdiction to do so, with the Supreme Court in any case having held that either court could be approached by a petitioner/applicant, the High Court and Sessions Court having concurrent jurisdiction in the matter…”, read Justice Singh’s order.

Thus allowing the plea of Lal, the HC ordered that it would be appropriate that he surrenders before the appellate court within 10 days and upon him doing so, he would be admitted to bail, upon him furnishing adequate bail and surety bonds to the satisfaction of that court during the pendency of the appeal there.

Justice Amol Rattan Singh however held that since the complainant, having been put to unnecessary harassment at least for one day due to the non-appearance of the petitioner on February 2, 2021, before the Sessions Court and thereafter having had to ‘defend’ his case before this court in the present petition, thereby leading to an unnecessary delay in the proceedings before that court, the petitioner would pay Rs 10,000 to the complainant (Amit Kumar) upon appearance before the sessions judge, after which he would be admitted to bail to the satisfaction of that court.

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