Supreme Court rules on anticipatory bail, stating “No person should be encouraged to approach the High Court directly,” emphasizing first approaching the Sessions Court for pre-arrest bail under Section 482 of BNSS.
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NEW DELHI: The Supreme Court of India addressed a growing concern regarding the practice of directly approaching High Courts for pre-arrest bail (anticipatory bail) under Section 482 of the BNSS (formerly Section 438 CrPC). The Bench, comprising Justice Vikram Nath and Justice Sandeep Mehta, emphasized the importance of maintaining the hierarchy of courts and ensuring that the Sessions Court is the first point of relief for pre-arrest bail applications.
Background of the Case
The case arose when the Petitioners, accused under Sections 342, 376(2)(n) IPC, Section 75 of the Juvenile Justice Act, and Sections 6 read with 5(1) and 17 of the POCSO Act, 2012, sought anticipatory bail directly from the Kerala High Court. Their plea was denied, leading them to file a Special Leave Petition (SLP) before the Supreme Court.
Supreme Court Observations
While granting interim protection to the accused, the Supreme Court made several important observations:
The Bench stated that although both the Sessions Court and High Court have concurrent jurisdiction to grant pre-arrest bail under Section 482 of the BNSS, directly approaching the High Court without first approaching the Sessions Court undermines the judicial hierarchy.
The Bench stated,
“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, the hierarchy of Courts demands that no person seeking such remedy should be encouraged or allowed to directly approach the High Court.”
The Court emphasized that the Sessions Judge exercises powers under Section 438 CrPC in relation to all cases registered in the district. Filing applications first at this level ensures expeditious disposal and direct assistance from the concerned Public Prosecutor
The Court highlighted that permitting direct High Court applications would flood the court with pre-arrest bail requests, creating unnecessary congestion. Allowing the Sessions Court to act as a filter ensures that only those applications that are genuinely contested reach the High Court.
The Bench warned,
“If the practice of entertaining the applications for pre-arrest bail directly in the High Court is encouraged… the High Court would be flooded with a spate of pre-arrest bail applications thereby creating a chaotic situation.”
The Court observed that requiring litigants to approach the Sessions Court first allows a filtration process,
“There would be a strong probability that a significant number of applications would be allowed at that level only thereby acting as a filtration process before the process reaches the High Court.”
The Bench clarified,
“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.”
The Supreme Court noted that many states already require first approaching the Sessions Court, a practice that ensures efficient and orderly judicial processing.
The Supreme Court issued notice to the Kerala High Court to consider this practice. Senior Advocate Sidharth Luthra has been appointed as Amicus Curiae to assist the Court. The matter is scheduled to be heard in October.
Section 482 of BNSS
Section 482 of BNSS provides for pre-arrest bail to a person who apprehends arrest, similar to the earlier provision under Section 438 CrPC.
When Can Anticipatory Bail Be Applied (Section 482(1))
- When a person has reason to believe they may be arrested for a non-bailable offence.
- Forum: High Court or Court of Session.
- Power of Court: The Court may direct that if the person is arrested, they shall be released on bail.
Conditions While Granting Bail (Section 482(2))
- A person must make themselves available for police interrogation when required.
- A person shall not directly or indirectly induce, threaten, or promise anyone to conceal facts.
- A person shall not leave India without prior permission of the Court.
- Any other conditions as may be imposed under Section 480(3).
Consequences of Grant (Section 482(3))
- If arrested without a warrant, the person shall be released on bail as per the Court’s direction.
- If a Magistrate takes cognizance and intends to issue a warrant, it shall be bailable, following the Court’s direction.
Exceptions (Section 482(4))
- This section does not apply to offences under Section 65 (rape in certain cases) and Section 70(2) (gang rape of a woman under 18 years) of BNSS.
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Appearance:
Petitioners: Advocates K. Rajeev (AOR), Shinoj K.Narayanan, Niveditha R Menon, Aditya Verma, and Tarun Kumar
Respondents: Advocates Harshad V. Hameed (AOR), Dileep Poolakkot, Ashly Harshad, and Anshul Saharan.
Case Title:
Mohammed Rasal C & Anr V. State of Kerala & Anr
Special Leave to Appeal (Crl.) No(s). 6588/2025
Read Order:
Click Here to Read Previous Reports on Graft Case
