- (1.) We have heard Sri Gaurav Kacker, learned Advocate and other counsels appearing for the various applicants and the learned AGA.
(2.) A learned Judge of the Court while considering a petition for anticipatory bail has deemed it appropriate to refer the following questions for the consideration of this Full Bench: - "(i) Whether the Court would have no jurisdiction to reject the anticipatory bail after considering the grounds of compelling reasons mentioned in the affidavit being found not appealing, which would amount nothing but to approach this Court directly; (ii) Whether amongst the grounds which have been enumerated in the judgment in the case of Vinod Kumar (supra), the ground at Serial (A) requires any reconsideration so as to preclude the co-accused approaching this Court directly in case the other co-accused's regular bail/anticipatory bail is rejected by the Court of Sessions and whether he be also subjected to filing such an affidavit, showing therein the circumstances in which he had to feel compelled to approach this Court directly; (iii) Whether amongst the grounds which have been enumerated in the judgment in the case of Vinod Kumar (supra), the ground at Serial (B) requires any reconsideration as to whether an accused, who is not residing within the jurisdiction of the Sessions Court concerned, faces a threat of arrest, should be allowed to approach the High Court directly, to move an anticipatory bail application by the logic given above in Para 6 of this judgment; and (iv) Whether such anticipatory bail applications which do not contain any compelling reason to approach this Court directly, should be entertained.
(3.) While passing the referral order, the learned Judge also suggested the formation of a Bench larger than the one which had rendered judgment in Onkar Nath Agarwal and others Vs. State, 1976 AllLJ 223, a decision rendered by three learned Judges of this Court. The Reference came to be made in the backdrop of the decision rendered in Vinod Kumar Vs. State of U.P. and another, 2019 12 ADJ 495 in which a learned Judge framed the following questions for consideration:- "A. The nature of the concurrent jurisdiction conferred by Section 438 Cr.P.C. B. Whether parties should be commanded to necessarily approach the Sessions Court first before invoking the jurisdiction of this Court under Section 438 Cr.PC C. In what circumstances can the High Court be approached directly under Section 438 Cr.P.C. D. Exceptional or Special circumstances. E. The perceived conflict between the decisions rendered in Harendra Singh @ Harendra Bahadur Vs. The State of U.P., and Neeraj Yadav And Another Vs. State of U.P. F. Impact of the Explanation to Section 438(2) Cr.P.C. G. The period for which anticipatory bail should operate.";