While the Sessions Court and the High Court share concurrent jurisdiction to grant pre-arrest (anticipatory) bail, a significant debate exists on whether a litigant must first approach the Sessions Court.
The Section 482 in Bharatiya Nagarik Suraksha Sanhita, 2023 relating to pre-arrest (anticipatory) bail states, the person, “may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”
Approach the Sessions Court First
The conventional and most widely followed practice is that an application for anticipatory bail should first be filed in the Sessions Court. The High Court should normally be approached only after exhausting that remedy.
The Supreme Court recently reinforced this view in Mohammed Rasal C. & Anr. v. State of Kerala & Anr., noting the consistent practice across most states. The Court clarified that while High Courts can entertain direct applications in special or extra-ordinary circumstances, those reasons must be recorded in writing.
Such a practice aligns with the five-judge bench decision of the Allahabad High Court in Ankit Bharti v. State of UP & Anr., held that it is for the concerned judge to determine if such special circumstances exist.
The aforesaid judgement referred to various Supreme Court judgements including Constitutional Bench judgements such as the one in Sushila Aggarwal vs. State [NCT of Delhi] and others [AIR 2020 SC 831].
No Bar on Approaching the High Court Directly
Contrary to the above, several Supreme Court judgments have held that there is no absolute rule or statutory requirement to approach the Sessions Court first.
In Kanumuri Raghurama Krishnam Raju v. State of A.P. and Arvind Kejriwal v. Directorate of Enforcement, the Supreme Court declared that approaching the lower court first is not a mandatory prerequisite.
Similarly, in Sundeep Kumar Bafna v. State of Maharashtra, the Supreme Court observed that since the jurisdiction is concurrent, there is no statutory mandate to exhaust the remedy before the lower forum.
A Division Bench of the Kerala High Court in Balan v. State of Kerala also held that Section 438 of the CrPC gives the accused the liberty to choose either forum to seek bail.
The Procedure Remains Unsettled
Since the different benches of the Supreme Court and various High Courts have expressed conflicting views, the precise procedure in this regard remains unsettled.
The most prudent course of action for a litigant, until a larger bench of the Supreme Court provides a definitive and binding ruling, is to approach the Sessions Court first before moving to the High Court, except in exceptional circumstances.
Conversely, the High Courts must direct the litigant to approach the Sessions Court in normal situations.
