Kerala lawyers object to Supreme Court view on High Courts entertaining anticipatory bail pleas ahead of sessions courts

Lawyers practicing before the Kerala High Court have moved a resolution before the Kerala High Court Advocates’ Association regarding the ongoing Supreme Court case concerning the issue of High Courts entertaining anticipatory bail pleas surpassing sessions courts.

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 of the apex 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 had also 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."

However, as per the resolution moved by Kerala lawyers, the matter is covered by several precedents.

The resolution particularly highlighted the 2003 judgment of a division bench of the Kerala High Court in Balan v. State of Kerala.

"It has been held that Section 438 of the Criminal Procedure Code which is akin is Section 482 of BNSS 2023 confers the power on both the High ourt and the Sessions Court to consider applications for prearrest bail, and it is not necessary for the accused to first approach the Sessions Court before seeking relief from the High Court," the resolution said.

It was further pointed out that High Court and sessions courts have concurrent powers under Sections 438 and 439 of the Criminal Procedure Code and this feature was not amended by the legislature when it enacted the new criminal laws.

Pertinently, the lawyers contended that the current proceedings before the Supreme Court seem to be an act of judicial overreach interfering with the statutory powers of the High Court.

As per the resolution,

"The attempt now made by the Honorable Supreme Court appears to be an act of judicial overreach, interfering with the powers granted to the High Court by the legislature and thereby threatening the fundamental rights of citizens across the state and the nation as a whole."

The resolution, signed by 165 lawyers, has requested the Executive Committee of the KHCAA to file an impleading application before the Supreme Court and appoint a Senior Advocate to represent it.