Jammu & Kashmir High Court – Srinagar Bench
Syed Azhar-Ud-Din vs Ut Of Jk Th. Sho P/S Budgam & on 5 March, 2026
Serial No. 53
Supp. Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail App 20/2026 CrlM 2019/2026
SYED AZHAR-UD-DIN ...Petitioner(s)/Appellant(s).
Through: Ms. M.S. Reshi, Advocate
Vs.
UT OF JK TH. SHO P/S BUDGAM & ...Respondent(s).
ANR
Through: Mr. Bikramdeep Singh, Dy. AG
CORAM: HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
ORDER
05.03.2026
1. Through the medium of the instant petition having been filed in terms of
provisions of the Section 482 of the Bharatiya Nagarik Surkasha Sanhita,
2023 (hereinafter referred to as the ‘BNSS’ for short), the petitioner has
sought the grant of pre-arrest bail in his favour in case FIR No. 7/2026
registered with Police Station Budgam under Sections 318(4), 351(1) of
the Bharatiya Nyay Sanhita, 2023 (hereinafter referred to as the ‘BNS’
for short), on the grounds mentioned in the petition.
2. At the hearing of the matter on 04.03.2026, the learned counsel for the
respondents/UT, Mr. Bikramdeep Singh, learned Dy. AG, objected to the
maintainability of the petition for having been filed before this Court in
the first instance. It was submitted by the learned counsel that it is now
well settled by the recent judgment of the Hon’ble Apex Court that an
anticipatory bail petition in terms of the provisions of Section 482 of the
BNSS shall be filed in the first instance before the Territorial Sessions
Court.
3. Learned counsel for the petitioner, however, controverted the contention
of the learned counsel for respondent/UT and submitted that this Court is
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having the concurrent jurisdiction with the Court of Sessions to entertain
a petition for grant of anticipatory bail.
4. The learned counsel in support of his contentions, placed a reliance on
the judgment of the Hon’ble Apex Court cited as “Manjeet Singh vs.
State of Uttar Pradesh” Criminal Appeal arising out of SLP No.
11667/2025, decided on 07.08.2025.
5. I have perused the instant application and the copies of the documents
enclosed with the same. I have also given my thoughtful consideration to
the rival arguments advanced on both the sides.
6. Keeping in view the aforementioned perusal and consideration in the
light of the recent law on the subject as interpreted by the Hon’ble Apex
Court, this Court is of the opinion that the petitioner ought to have
approached the Court of learned Territorial Sessions Judge in the first
instance and, if needed, could have thereafter approached this Court
through a successive pre-arrest bail application. Although this Court and
the Court of Sessions are having the concurrent jurisdiction to entertain
and hear a petition for grant of anticipatory bail, yet the rules of propriety
and distribution of business demand that the Court of the Territorial
Sessions Judge needs to be approached in the first instance.
7. This Court, in its opinion, is fortified with a law laid down by the
Hon’ble Apex Court in “Mohammed Rasal.C & Anr. Vs. State of Kerala
& Anr.” SLP (Crl) No. 6588/2025 decided on 08.09.2025, the relevant
paras 6 to 9 of which are reproduced as hereunder for ready reference:
“6. We find that in this case, the petitioners had
approached the High Court directly for pre-arrest bail
under Section 482 of the Bharatiya Nagarik Suraksha
Sanhita, 2023(for short, „BNSS‟),without first
approaching the Sessions Court for the said relief. We
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are of the opinion that though the concurrent jurisdiction
is conferred upon the Sessions Court and the High Court
to entertain a prayer for pre-arrest bail under Section
482 of the BNSS (formerly, Section 438 CrPC), the
hierarchy of Courts demands that no person seeking such
remedy should be encouraged or allowed to directly
approach the High Court for exercising jurisdiction
under Section 482 of the BNSS (formerly, Section 438
CrPC) by bypassing the jurisdiction of the concerned
Sessions Court.
7. The Sessions Judge exercises powers under Section
438 CrPC in relation to all cases registered with the
police stations in the particular District. This area-wise
distribution of work would make it much more convenient
and facilitate expeditious disposal, if the application for
pre-arrest bail is first filed before the Sessions Court
which would have a direct and first-hand assistance of
the concerned Public Prosecutor appointed for that
particular District. The Sessions Court would also have
an immediate access to the Case Diary thereby
facilitating a better appreciation of facts of the case.
8. We further feel that if the practice of entertaining the
applications for pre-arrest bail directly in the High Court
is encouraged, and the parties concerned are not
relegated to first approach the Sessions Court concerned,
the High Court would be flooded with a spate of pre-
arrest bail applications thereby creating a chaotic
situation. We say so, because if the parties are required
to approach the Sessions Court concerned for seeking
remedy of pre-arrest bail, there is a strong probability
that significant number of applications would be allowed
at that level only thereby acting as a filtration process
before the process reaches the High Court.
9. It is trite that in most of the States, there is a consistent
practice requiring the litigant concerned to first
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approach the Sessions Court for seeking relief of pre-
arrest bail and only in the event of denial of such relief,
the litigant would be granted access to approach the
High Court for seeking such relief. This is, of course,
subject to just exceptions and the High Court, for reasons
to be recorded, may entertain an application for pre-
arrest bail directly in special/extra-ordinary
circumstances.”
8. This Court is also fortified in its opinion with another recent judgment of
the Hon’ble Apex Court cited as “Jagdeo Prasad Vs. The State of Bihar
& Ors.” 2025 Live Law (SC) 965, SLP(Crl) No. 17805,17569 of 2024
decided on September, 17, 2025, the relevant para 6 whereof is
reproduced here for the sake of convenience:
“6. However, before parting, we do wish to express our
sincere concern with the haste at which the High Court
has dealt with this matter. While the scheme of Criminal
Procedure Code, 1973 (now Bharatiya Nagarik Suraksha
Sanhita, 2023) provides concurrent jurisdiction to the
High Court and Sessions Court for entertaining
applications for anticipatory bail, this Court has time and
again observed that High Court should always encourage
exhausting an alternative/concurrent remedy before
directly interfering itself. This approach balances the
interests of all the stakeholders, first by giving the
aggrieved party a round of challenge before the High
Court. Second, this approach provides the High Court an
opportunity to assess the judicial perspective so applied
by the Sessions Court, in concurrent jurisdiction, instead
of independently applying its mind from the first go.
Further, the High Court fails to record any reason for
directly granting anticipatory bail without impleading the
appellant-complainant as a party.”
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9. For the forgoing discussion, this petition is dismissed with liberty to the
petitioner to approach the concerned Territorial Sessions Court in the first
instance with the similar prayer.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
05.03.2026
ARIF
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