Lack of legal representation acceptable ground to move HC first for anticipatory bail: Kerala High Court

The Kerala High Court recently opined that inability to find legal representation before a Sessions Court is an acceptable reason to approach the High Court directly for anticipatory bail [PS Krishnadas v. State of Kerala]

Justice K Babu made the observation while considering an anticipatory bail application moved by a man who was accused of demanding sexual favours and making sexually coloured remarks to lawyer practicing in Palakkad while travelling on a bus.

No lawyer in Palakkad was willing to represent him before the Sessions Court. He, therefore, filed his anticipatory bail plea before the High Court.

The High Court decided to consider the case opining that this was an exceptional circumstance.

"It is the case of the petitioner that, as the victim in the case is a lawyer practicing in the Palakkad Bar Association, no lawyers practicing there are willing to accept his vakalat. Thus, the petitioner has placed an exceptional circumstance for making an application under Section 482 of BNSS directly before this Court," the Court said.

While the High Court ultimately declined to grant anticipatory bail as the allegations were serious in nature, the order assumes significance as the Supreme 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 top 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 Kerala High Court Advocates' Association (KHCAA) objecting to the view taken by the Supreme Court and requested the KHCAA to present their views to the top court.

KHCAA later moved an impleadment application before the Supreme Court Bench of Justices Nath and Mehta.

On November 12, The Bench said that the Court would hear the Association but directed that the matter be placed before a 3-judge bench.

The accused in the case before the Kerala High Court was represented by advocates PV Uttara and Shilpa Soman.

Senior Public Prosecutor MC Ashi appeared for the State and advocate Swetha R appeared for the complainant-woman.

[Read Order]