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.
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 is typically approached only after this remedy has been exhausted.
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, these reasons must be recorded in writing. This aligns with the five-judge bench decision in Ankit Bharti v. State of UP & Anr., which held that it is for the concerned judge to determine if such special circumstances exist.
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 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.
The Position Remains Unsettled
Given the conflicting views expressed by different benches of the Supreme Court and various High Courts, the precise procedural hierarchy remains unsettled.
Until a larger bench of the Supreme Court provides a definitive and binding ruling, the most prudent course of action for a litigant, except in genuinely exceptional circumstances, is to approach the Sessions Court first before moving to the High Court.
