High Courts Should Directly Entertain Anticipatory Bail Pleas Only In 4 Circumstances : Amici Curiae Report In Supreme Court

Although the law confers concurrent jurisdiction both on the Sessions Court and the High Court to hear anticipatory bail applications, ordinarily the Sessions Court must be approached first, opined the amici curiae appointed by the Supreme Court.

Senior Advocate Siddharth Luthara and Advocate G Arudhra Rao, the amici appointed by the Court in this issue, suggested that High Courts can be approached directly for anticipatory bail only in exceptional circumstances. They recommended that while both High Courts and Sessions Courts enjoy concurrent powers to grant anticipatory bail under Section 438 of the CrPC (now Section 482 of the BNSS), the Sessions Courts should be treated as the primary forum for such applications.

According to their  considered view, the only circumstances in which an individual apprehending arrest be permitted to approach a High Court under Section 438 CrPC/ S. 482 BNSS directly, could be as under: 

a) Where an accused is not ordinarily residing within the territorial jurisdiction of the Sessions Court and/or the High Court concerned is apprehending arrest;

b) Where the situation within the jurisdiction of a Sessions Court is such that a person cannot effectively seek redressal before the Sessions Court, such as on account of local law and order disturbances, strikes, hostility against the individual, reasonable apprehension of grievous and other bodily harm to the person of the individual and/or their family members, and so on;

c) Wherein the accused can make out their inability to approach the Sessions Court because of medical or other emergency of similar nature.

d) Where the Court of first jurisdiction under Section 438 CrPC/ S. 482 BNSS is a Special/designated Court of the rank of an Additional Sessions/Sessions Judge dealing with a special/local law.

The report was submitted before a bench comprising Justice Vikram Nath and Justice Sandeep Mehta in the case Mohammed Rasal C v State of Kerala where the Court had earlier disapproved of the practice of High Courts, especially the Kerala High Court, in directly entertaining anticipatory bail applications bypassing the Sessions Court. The Court, in its order passed on September 8, had observed that ideally, the Sessions Court should be approached first. The Court issued notice to the Kerala High Court and appointed amici curiae to consider the issue.

The amici report also broadly mirrored the view expressed by the Supreme Court. The report was also critical of the subsequent judgment passed by the Kerala High Court on September 11 in Venu Gopalakrishnan and Ors. v. State of Kerala and Anr. , which reiterated that High Courts are not barred from directly hearing anticipatory bail applications.

"In our view, directions such as the ones currently in force in Kerala have the potential to deter Sessions Courts from giving anticipatory bail – for reasons unconnected with either the law or the facts of a particular case. This despite the fact that based on the law as it stands, Sessions Courts are statutorily given concurrent jurisdiction to entertain anticipatory bail applications," the report stated.

The amici noted that India's diverse geography and judicial structure require a framework that enhances accessibility rather than centralising relief in High Courts located in capital cities. “Where Parliament has provided for concurrent powers, any proposal on which court to approach must be seen through the prism of enhancing access to justice,” the submission stated.

While acknowledging that Parliament has conferred concurrent powers on both forums, the amici cautioned that the Supreme Court should not attempt to judicially curtail this concurrent jurisdiction, as doing so would amount to “judicial legislation,” which a seven-judge bench had previously held to be impermissible in P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578.

However, they recommended that the apex court may issue guidelines encouraging litigants to approach the Sessions Court first, noting that this would serve their best interest while preserving the High Courts' power to entertain cases directly in exceptional circumstances.

"Our recommendations seek to propose “primacy” of the Courts of Sessions in dealing pre-arrest bail applications though the powers under S. 438 CrPC/ S.482 BNSS are of a concurrent nature. This proposal for declaring the “primacy” of the Court of Sessions ties directly into the larger societal endeavour of ensuring “Access toJustice” , which is the cornerstone of a vibrant democracy."

Citing the Supreme Court's observations in Satender Kumar Antil v. CBI (2022) and its subsequent rulings, the amici underscored that strengthening the district judiciary is essential to improving citizens' first point of contact with the criminal justice system.

They also highlighted the practical advantages of approaching Sessions Courts first.  They are geographically more accessible and less expensive to reach compared to High Courts. A contrary trend, seen in states such as Kerala, Odisha, and Andhra Pradesh where High Courts often entertain anticipatory bail pleas at the first instance, was said to burden High Courts and undermine confidence in the authority of Sessions Courts.

The amici warned that such practices could lead to a “prejudicial perception” that Sessions Courts are less competent to grant anticipatory bail, thereby deterring litigants and distorting judicial hierarchy.

At the same time, they advised against a rigid, uniform rule, suggesting limited exceptions where direct recourse to the High Court may be justified.

Another argument advanced was that allowing applicants to move the Sessions Court first gives them two opportunities for relief, one before the Sessions Court and another before the High Court. Also, High Court benefits from the Sessions Courts' findings.

The amici concluded that a balanced approach was needed,one that preserves concurrent jurisdiction but encourages High Courts to exercise self-restraint, much like the practice followed under Articles 32 and 226 of the Constitution.

The High Courts should ordinarily direct litigants to seek the more accessible and efficacious remedy before the Sessions Court, while retaining discretion to intervene directly in rare cases, they suggested.

"Our proposal seeks to respect the statutory scheme granting concurrent jurisdiction to both High Courts and Courts of Session. It envisages a situation in which High Courts exercise restraint, by redirecting litigants to first seek the more accessible and equally efficacious remedy available before the Courts of Session, whilst retaining the discretion to entertain anticipatory bail applications in the circumstances highlighted above."

The report also mentioned the various conflicting views taken by different High Courts on whether a litigant should approach the Sessions Court first for anticipatory bail.

The Court took on record the amici curiae report yesterday and posted the matter for hearing on November 12.

Case Title: MOHAMMED RASAL.C & ANR. VERSUS STATE OF KERALA & ANR., SLP (Crl.) No. 6588/2025

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