The Delhi High Court in the case Pankaj Bansal v. State (Govt. Of NCT Delhi) And Anr. and other connected matters observed and has ruled that the discretion of an applicant in order to choose either High Court or the trial court for moving anticipatory bail petition cannot be restricted by constructing section 438 of the Code of Criminal Procedure, 1973.
The vacation bench comprising of Justice Chandra Dhari Singh in the case observed and has stated that there being no bar on approaching the High Court wherein it directed for seeking anticipatory bail and that both the courts i.e., the High Court and the Trial Court have concurrent jurisdiction in order to deal with such kind of cases.
The court in the case stated that it being discretionary for the Applicant either to approach the High Court or the Court of Session. Thus, there being no restraint cast upon the Applicant to approach this Court first and the same is based upon the discretion of the Applicant which Court they want to approach since both the Court have concurrent jurisdiction and the same cannot be restricted by construing the provision of Section 438 of the Code of Criminal Procedure.
Adding to it, the court stated that over-generous infusion of constraints and conditions, thus, which is not to found in Section 438 of CrPC can make the provision constitutionally vulnerable that since the right to freedom cannot depend on compliance with unreasonable restrictions.
The court stated as per section 438 of the Code of Criminal Procedure, 1973 being the procedural provision that is concerned with the personal liberty of the individual, who in the case is entitled to the benefit of the presumption of innocence since he is not and on the date of his application for anticipatory bail be convicted of the offense in respect of which he is seeking an anticipatory bail.
The bench headed by Justice Singh in the case observed and has stated that the beneficent provision contained in Section 438 must be saved, not jettisoned, while the clarified the observations were made in the context that the earlier view was that the power of granting anticipatory bail was extraordinary in character which should be granted by the said court only in
the exceptional cases.
Further, the court in the case observed and has stated that the said court has the jurisdiction to entertain the bail application which is moved under Section 438 even when the applicant has not approached the Court of Sessions first.
The bench of Justice Singh in the case observed while granting interim protection to Pankaj Bansal and Basant Bansal in a money laundering case which is being registered by the Enforcement Directorate in 2021. Therefore, the applicant in the case moved the High Court seeking anticipatory bail in the ECIR registered under section 3 and section 4 of the Prevention of Money Laundering Act, PMLA.
However, the court granted the relief taking note of the fact that both the applicants were not named in the ECIR, that ED did not implicate them in any of the Scheduled Offences under the Prevention of Money Laundering Act, PMLA and they were not being sentenced by the probe agency.
The court in the case observed and has stated that the Applicant may be granted interim protection till the next date of hearing.
Accordingly, the court listed the matter to be next heard on July 05, 2023.