The Supreme Court will soon decide if High Courts can directly hear anticipatory bail pleas without approaching the Sessions Courts first. The Kerala High Court Advocates’ Association (KHCAA) has intervened, and the case will now go before a 3-judge Bench.
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NEW DELHI: The Supreme Court of India has referred to a larger Bench the significant question of whether High Courts can entertain anticipatory bail pleas directly, bypassing the Sessions Courts. The matter will now be heard by a three-judge Bench of the top court.
A Division Bench comprising Justices Vikram Nath and Sandeep Mehta made the referral on Wednesday while considering concerns over the Kerala High Court’s practice of hearing anticipatory bail applications without requiring the petitioner to first approach the Sessions Court.
Recently, the Supreme Court had expressed concern about what it termed a “regular practice” in the Kerala High Court, entertaining anticipatory bail petitions at the first instance. The Bench noted that such a practice was not followed in any other state and appointed Senior Advocate Sidharth Luthra as amicus curiae to assist in the matter.
Luthra concurred with the Court’s view, stating that while both High Courts and Sessions Courts enjoy concurrent jurisdiction under Section 438 of the Code of Criminal Procedure (CrPC) and its corresponding Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the Sessions Court should be the primary forum.
According to him, such an approach would promote judicial efficiency and access to justice, while still preserving the concurrent powers of the High Courts.
Following the Court’s observations, 165 practicing lawyers from Kerala passed a resolution objecting to the view taken by the Supreme Court. Acting on this, the Kerala High Court Advocates’ Association (KHCAA) filed an impleading application before the Bench of Justices Nath and Mehta, seeking to present its stance before the top court.
The Bench agreed to hear KHCAA’s submissions but directed that the case be placed before a three-judge Bench for authoritative adjudication.
In its application, KHCAA argued that both Section 438 of the CrPC and Section 482 of the BNSS confer concurrent jurisdiction on High Courts and Sessions Courts to entertain anticipatory bail pleas. The statutes, the Association noted, do not prescribe any hierarchy or condition requiring an accused to first approach the Sessions Court.
KHCAA emphasized that the legislature’s use of the disjunctive “or” in the statute was deliberate and conferred a clear, unambiguous choice of forum on the applicant.
“Had the legislature intended to restrict the concurrent jurisdiction conferred under Section 438, it would have done so in express terms. Such restrictive interpretation cannot be judicially imposed,”
the KHCAA stated.
The Association also relied on the Kerala High Court’s Division Bench judgment in Balan v. State of Kerala (2003), which held that an accused is not required to approach the Sessions Court first before moving the High Court for anticipatory bail.
KHCAA contended that this precedent has guided the High Court’s consistent practice for over two decades. However, due to the ongoing Supreme Court proceedings, different benches of the Kerala High Court have adopted divergent approaches, creating uncertainty.
To address concerns about accessibility and procedural efficiency, KHCAA pointed out that Kerala’s integrated online case management system allows the High Court to instantly access case records from trial courts.
“This ensures expeditious consideration of pre-arrest bail applications and removes any potential prejudice in entertaining such pleas at the first instance before the High Court,”
the Association submitted.Shocked and Petrified: Kerala High Court Aghast as Petitioner-Advocate Makes Obnoxious Remarks, Accuses Judges of Bias
