Disposed¶31

Archana Suresh Kute v. the State of Maharashtra

Anticipatory bail – maintainability versus entertainability

Bombay HC10 Oct 2024ABA/1220/2024

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Case brief

AI extract

What is this about?

Bombay High Court, Aurangabad Bench; Anticipatory Bail Application No. 1220 of 2024 (with ABA No. 1343 of 2024 and Criminal Application Nos. 3023, 3024, 3025, 3036, 3335, 3472, 3487, 3624 of 2024); Archana Suresh Kute v. State of Maharashtra; decided 10-10-2024 by R. M. Joshi, J.; Section 438 Cr.P.C.; concurrent jurisdiction; hierarchy of forums; entertainability; multiple FIRs; anticipatory bail for future FIRs impossible; MPID Act Sections 3 and 4; Crime No. 238/2024, Shivaji Nagar Police Station, Beed; Dnyanradha Multistate Cooperative Society; disposed with liberty to approach Sessions Court.

What did the court decide?

No anticipatory bail granted; the applicant is at liberty to move the concerned Sessions Court for seeking pre-arrest bail in accordance with law. ¶31

Archana Suresh Kute Vs the State of Maharashtra — Cheating and Forgery | Bombay HC (2024)

What the court decided

AI extract

Outcome

No anticipatory bail granted; the applicant is at liberty to move the concerned Sessions Court for seeking pre-arrest bail in accordance with law.

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Issue for consideration

Whether an anticipatory bail application filed directly before the High Court, without first approaching the Court of Sessions under Section 438 Cr.P.C., is maintainable and ought to be entertained. +1 more

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Court's answer

Under Section 438 Cr.P.C., the High Court and the Sessions Court exercise concurrent jurisdiction in respect of grant of pre-arrest bail; therefore the question is not of maintainability but of entertainability of the application.

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Ratio / Principle

Where two forums are available, the long-settled practice is that the litigant must approach the forum lowest in the hierarchy; direct entertainment of an application by the High Court without exhausting the Section 438 Cr.P.C. remedy before the Court of Sessions requires an exceptional and justified case to be made out.

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Key takeaways

The mere lodging of multiple first information reports against an accused creates no right to file an anticipatory bail application directly before the High Court.ratio¶28
Seeking pre-arrest bail in respect of any future crime that may be registered against the applicant is wholly impossible in law.ratio¶28
The communication dated 16/06/2024 of the Deputy Superintendent of Police indicated danger to the life of a co-accused (investors had banged into the court premises), and that threat has no application to the present applicant seeking anticipatory bail.

Detailed headnote1 paragraphs

Anticipatory bail — maintainability versus entertainability — application under Section 438 Cr.P.C. filed directly before the High Court (Aurangabad Bench) in connection with Crime No. 238/2024, Shivaji Nagar Police Station, Dist. Beed, under Sections 420, 406, 409, 120-B IPC and Sections 3 and 4 of the Maharashtra Protection of Interest of Depositors Act, 1999 — High Court and Sessions Court possess concurrent jurisdiction for pre-arrest bail, but the litigant must ordinarily approach the forum lowest in the hierarchy, and direct filing before the High Court requires an exceptional and justified case — multiplicity of FIRs confers no right to bypass the Sessions Court; a prayer for anticipatory bail in respect of future crimes is wholly impossible in law; DSP communication dated 16/06/2024 evidenced threat to a co-accused, not the applicant — no exceptional circumstances made out; application disposed of with liberty to approach the Sessions Court (R. M. Joshi, J.).

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2024:BHC-AUG:24921

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This order has been corrected pursuant to order of speaking to the minutes dated 14/10/2024.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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ANTICIPATORY BAIL APPLICATION NO. 1220 OF 2024 WITH ANTICIPATORY BAIL APPLICATION NO. 1343 OF 2024 WITH CRIMINAL APPLICATION NO. 3023 OF 2024 WITH CRIMINAL APPLICATION NO. 3024 OF 2024 WITH CRIMINAL APPLICATION NO. 3025 OF 2024 WITH CRIMINAL APPLICATION NO. 3036 OF 2024 WITH CRIMINAL APPLICATION NO. 3335 OF 2024 WITH CRIMINAL APPLICATION NO. 3472 OF 2024 WITH CRIMINAL APPLICATION NO. 3487 OF 2024 WITH CRIMINAL APPLICATION NO. 3624 OF 2024

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ARCHANA SURESH KUTE

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VERSUS

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THE STATE OF MAHARASHTRA

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Mr. Vishal Kale, with Mr. S. V. Suryawanshi, with Mr. Prashant Shinde, Advocates for the applicants

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Mr. P. K. Lakhotiya, APP for the respondent/State Ms. Pradnya Talekar, Advocate for Assist to APP

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Mr. G. D. Maske, Advocate for the applicants in CA No. 3023/2024 Mr. A. D. Gade, Advocate for the applicant in CA No. 3024/2024 Mr. P. D. Jarare, Advocate for the applicant in CA No. 3025/2024 Ms. Sakshi A. Kale h/f Mr. A. B. Kale, Advocate for the applicant in CA No. 3335/2024

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Mr. R. M. Jagtap, Advocate for the applicant in CA No. 3487/2024 Mr. M. D. Bharad, Advocate for the applicant in CA No. 3624/2024

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CORAM : R. M. JOSHI, J. DATE : 10^th OCTOBER, 2024

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PER COURT :-

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At the outset, Ms. Vritee Soni, learned counsel appeared via Video Conferencing and recused herself from the proceedings as the applicant has appointed another lawyer who is present before this Court. She is discharged.

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944.aba1220.24-corrected.odt

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Applicant apprehends arrest in connection with Crime No. 238/2024 registered with Shivaji Nagar Police Station, Dist. Beed for the offences punishable under Sections 420, 406, 409, 120-B of the Indian Penal Code (for short ‘IPC’) and Sections 3 and 4 of the Maharashtra Protection of Interest of Depositors Act, 1999. This application is filed with following prayer clause:

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“A. Pass necessary orders and directions, thereby granting Anticipatory bail to the Applicant Mrs. Archana Kute in the event of arrest in FIR No. 238 of 2024 dated 26.05.2024 under Sections 120-B, 406, 409, 420 r/w Section 34 of the Indian Penal Code, 1860 and Sections 3 and 4 of the Maharashtra Protection of Interest of Depositors Act, 1999 and in relation to any FIR, which may be registered in future, pertaining to the Dnyanradha Multistate Cooperative Society.”

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Learned APP as well as learned counsel appearing on behalf of the victims who have filed applications to assist APP raised preliminary objection with regard to the maintainability of the application. It is their contention that it is open for the applicant to move an application before the Court of Sessions for seeking pre arrest bail and any application directly filed before this Court need not be entertained.

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944.aba1220.24-corrected.odt

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Learned counsel for the applicants has relied upon provision of Section 438 of the Code of Criminal Procedure to contend that there is no embargo for this Court to entertain pre arrest bail, as both High Court as well as Sessions Court, can exercise such power. He contends that there are 41 first information reports filed against applicant and other accused persons. It is his submission that applicant is wife of the main accused and that in view of the communication addressed by the Deputy Superintendent of Police dated 16/06/2024 to the District and Sessions Judge, Beed, there is danger to her life too. On these submissions it is contended that the present application is maintainable, and these facts and circumstances application deserves to be entertained. He placed reliance on judgments referred in the application. This Court has carefully gone through the same.

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In view of the provisions of Section 438 of Cr.P.C. there cannot be a dispute about the proposition that High Court as well as Sessions Court exercise concurrent jurisdiction in respect of grant of pre arrest bail. Thus, the question is not of maintainability of the application but it is entertainability.

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It is long settled practice that whenever two forums are available it is necessary for the litigant must approach the forum which is

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944.aba1220.24-corrected.odt

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lowest in the hierarchy . No doubt, in exceptional cases, directly any proceedings can be filed before the higher Authority. Thus, for the entertainment of application directly before this Court, without exhausting remedy of making application under Section 438 of Cr.P.C. before Court of Sessions, there must be exceptional and justified case made out.

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First of all it needs to be recorded that merely because number of first information reports are lodged against the present applicant that would not create any right in favour of an accused, to file an application before High Court directly. Pertinently, the applicant is not only seeking anticipatory bail in connection with C.R. No. 238/2024 registered with Shivaji Nagar Police Station, District Beed seeks pre arrest bail in respect of any future crime registered against her. This is wholly impossible in law. In so far as, the contention with regard to the apprehension of danger to life is concerned, perusal of the communication dated 16/06/2024 addressed by the Deputy Superintendent of Police indicates that there was a danger to the life coaccused as the investors had banged into the court premises. In so far as present application is concerned, the application is for anticipatory bail and as such there is no question of the said threat for the co-accused being applicable to her.

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944.aba1220.24-corrected.odt

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Though it is held that the application is maintainable, in the facts and circumstances of the case, there are not an exceptional circumstances to entertain application, without exhausting remedy before Court of Sessions. Hence, application stands disposed of. Pending applications, if any, stand disposed of.

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It is open for the applicant to move the concerned Sessions Court for seeking pre arrest bail, in accordance with law.

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ssp

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944.aba1220.24-corrected.odt

Archana Suresh Kute v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Archana Suresh Kute v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

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