The Delhi High Court has said that applicants have the discretion to choose between the high court and trial court when filing an anticipatory bail plea, and this choice cannot be limited by narrowly interpreting section 438 of the Code of Criminal Procedure (CrPC).
Justice Chandra Dhari Singh was hearing a plea by Pankaj Bansal and Basant Bansal seeking anticipatory bail in a money laundering case filed by the Enforcement Directorate (ED) in 2021.
The ED had registered a case under Sections 3 and 4 of the Prevention of Money Laundering Act (PMLA).
Justice Singh stated that there is no prohibition on directly approaching the high court to seek anticipatory bail.
The court emphasised that the decision of whether to approach the high court or the sessions court lies with the applicant, as both courts have equal jurisdiction.
“Both the high court and the sessions court have concurrent jurisdiction to handle such cases,” it said.
It stressed that this discretion should not be restricted by narrow interpretations of Section 438 of the CrPC.
Stating that personal freedom should not depend on compliance with unreasonable restrictions, Justice Singh noted that imposing additional constraints and conditions not found in Section 438 could render the provision “constitutionally vulnerable”.
Section 438 is a procedural provision concerned with safeguarding the personal liberty of individuals.
The judge said that individuals are entitled to the “presumption of innocence” until proven guilty and that the provision should be interpreted in a manner that upholds this principle.
Justice Singh emphasised the importance of preserving the beneficial nature of Section 438 and clarifying that the court’s observations were made in the context that the power to grant anticipatory bail was considered exceptional and should be granted only in specific cases.
Therefore, the court concluded that it has the jurisdiction to entertain bail applications under Section 438, even if the applicant has not first approached the court of session.
Considering the fact that both Pankaj and Basant were not named in the case, the ED did not implicate them in any of the scheduled offences under the PMLA, and they were not summoned by the probe agency, the court granted interim protection.
It stated that in the interest of justice and in accordance with Article 21 of the Constitution of India, the applicants should be granted interim protection until the next hearing, which is scheduled for July 5.
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