Can HCs hear anticipatory bail pleas ahead of sessions courts? Kerala bar body moves Supreme Court; matter referred to 3-judge bench

The ongoing case before the Supreme Court concerning High Courts entertaining anticipatory bail pleas surpassing sessions courts, will be heard by a three-judge Bench of the top court.

A Bench of Justices Vikram Nath and Sandeep Mehta on Wednesday decided to refer the issue to a larger Bench and also said that the top court will hear Kerala High Court Advocates' Association (KHCAA) which has sought intervention in the matter.

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. The Court had said that this does not happen in any other court, and appointed Senior Advocate Sidharth Luthra as amicus curiae in the matter.

Pursuant to that, Luthra concurred with the Supreme Court's view and said that 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.

Luthra 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."

Subsequently, 165 practicing lawyers from Kerala moved a resolution before the KHCAA objecting to the view taken by the Supreme Court and requested the KHCAA to present their views to the top court.

Today, KHCAA moved its impleading application before the Supreme Court bench of Justices Nath and Mehta.

The Bench said that the Court would hear the Association but directed that the matter be placed before a 3-judge bench.

According to KHCAA's application before the Supreme Court, both Section 438 of of the Code of Criminal Procedure and the corresponding Section 482 of the Bharatiya Nagarik Suraksha Sanhita confer concurrent jurisdiction on High Courts and sessions courts to entertain anticipatory bail pleas.

The statutes do not include any hierarchical restriction or precondition requiring an accused person to first approach a sessions court before approaching the high court. Therefore, it would be inappropriate to read into the statute, any fetters that have not been placed by the legislature, KHCAA contended.

KHCAA also pointed to the use of the disjunctive “or” in the statute to argue that the legislature unambiguously conferred concurrent jurisdiction leaving it to the applicant to choose which court to approach.

"Had the legislature intended to restrict the concurrent jurisdiction conferred under Section 438, it would have done so in clear and express terms. In these circumstances, such restrictive rule may not be introduced by a process of interpretation placing fetters on the powers of the court," KHCAA's application said.

KHCAA also highlighted the 2003 judgment of a division bench of the Kerala High Court in Balan v. State of Kerala in which it was held that it is not necessary for an accused person to first approach a sessions court before seeking relief from the High Court. It is on the strength of this decision that various benches of the Kerala High Court have been entertaining anticipatory bail pleas filed before it, KHCAA submitted.

However, due to the present case, different benches of the High Court have been taking different views on whether the Supreme Court proceedings override the judgment of the division bench, the application stated.

KHCAA also drew the top court's attention to the online case management system that exists in Kerala which enables the High Court to access case records from trial courts with no delay or impediment.

"This ensures expeditious access to materials necessary for judicial consideration and eliminates any potential prejudice in entertaining a pre-arrest bail application at the first instance before the High Court. It is submitted that the concerns expressed by this Hon’ble Court regarding the greater accessibility of case materials to the Sessions Courts stand adequately addressed in the context of Kerala," the application pointed out.

Senior Advocates V Giri and S Nagamuthu and advocate A Karthik appeared for KHCAA before the Supreme Court today.