The Supreme Court of India, on Wednesday, referred the question of whether litigants should approach high courts directly for anticipatory bail, or first seek relief from the sessions court, to a three-judge bench. This critical decision came from a bench comprising Justices Vikram Nath and Sandeep Mehta, who emphasized that the matter deserves a hearing by a larger bench as soon as it is constituted.
Earlier, the apex court appointed senior advocate Siddharth Luthra as amicus curiae for his expertise in the matter. The court aims to clarify the procedural issues surrounding anticipatory bail pleas, which have sparked significant debate among legal practitioners.
The Supreme Court had previously expressed concerns regarding the “regular practice” of the Kerala High Court in entertaining anticipatory bail applications directly, bypassing the sessions court entirely. In a previous session on September 8, the court questioned, “One issue that is bothering us is that in the Kerala High Court, anticipatory bail applications are regularly entertained directly. Why is that so?” This highlights the potential anomalies in the judicial process.
According to the court, the provisions in the older Code of Criminal Procedure, as well as the new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, delineate a clear hierarchy whereby bail applications must follow a specific order. Notably, Section 482 of BNSS addresses directions regarding bail for individuals facing the threat of arrest.
The court remarked, “It doesn’t happen in any other state. Only in the Kerala High Court… applications for anticipatory bail are regularly entertained directly.” This divergence in practice raises crucial questions about consistency within the judicial system.
The discussions surrounding this issue were ignited by a plea filed by two individuals who challenged a prior order from the Kerala High Court that denied them anticipatory bail. The petitioners approached the high court directly, forgoing the standard protocol of seeking relief from the sessions court first, a move that the Supreme Court viewed critically.
The bench opined that such a practice might hinder courts from acquiring comprehensive factual records typically presented before the sessions court. Referring to the legal process, the justices stated, “We are inclined to consider whether the option to approach the high court is a matter of choice for the accused or whether it should be mandatory to first go to the sessions court.”
Furthermore, the top court took proactive steps by issuing notice to the Kerala High Court, seeking its response on this pertinent issue. This marks a significant moment in the ongoing evolution of legal doctrines in India and underscores the essential discussions surrounding access to justice and the procedural rigor within the Indian judiciary.
