While High Courts and sessions courts have concurrent powers when it comes to anticipatory bail pleas, the primacy should lie with the latter to promote access to justice and judicial efficiency, an amicus curiae told the Supreme Court [Mohammed Rasal C & Anr v. State of Kerala & Anr].
The top court had recently expressed concern over the "regular practice" of the Kerala High Court entertaining anticipatory bail pleas without asking the person to first approach the sessions court. A Bench of Justices Vikram Nath and Sandeep Mehta had said that this does not happen in any other Court, and appointed Senior Advocate Sidharth Luthra as amicus curiae in the matter.
Luthra, who is assisted by advocate G Arudhra Rao, has advised against ousting the concurrent jurisdiction under Section 482 of Bharatiya Nagarik Suraksha Sanhita (BNSS) but argued that “a litigant’s best interest would be served to approach the court of sessions first."
Calling for strengthening the district judiciary, Luthra argued that they are “the first point of interface of a citizen" and that the Sessions Court primacy “ties directly into the larger societal endeavour of ensuring access to justice, which is the cornerstone of a vibrant democracy".
As per the amicus, the practical benefits of approaching the trial court first include greater geographical accessibility and lower costs for accused persons.
Encouraging High Courts to entertain anticipatory bail at the first instance would unnecessarily increase costs for an accused apprehending arrest and also have a disproportionate impact on access to justice for those belonging to marginalised sections of society, Luthra emphasized.
He warned that existing practices in some States risk creating a perception that the High Court is a preferable forum.
“The current situation has a prejudicial effect on judicial administration, and also unduly increases the workload of High Courts across the country,” the submission said.
However, the amicus has also suggested that those apprehending arrest can directly move the High Court in the following situations:
a) Where an accused apprehending arrest is not ordinarily residing within the territorial jurisdiction of the sessions court and/or the High Court;
b) Where the situation within the jurisdiction of a sessions court is such that a person cannot effectively seek redressal 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/ Section 482 BNSS is a special/designated Court of the rank of an additional sessions/ sessions judge dealing with a special/ local law.
The amicus note explained that approaching the Sessions Court first preserves a two-tier safeguard for personal liberty.
“In the event the litigant suffers an unfavourable order, it will always be open for them to approach the High Court, which will also have the benefit of the view taken by the Sessions Court,” Luthra said.