New Delhi: The Supreme Court on Wednesday referred to a three-judge bench the question of whether seeking anticipatory bail directly from a high court is a litigant’s choice or if it is mandatory to first approach a sessions court.
A bench of Justices Vikram Nath and Sandeep Mehta said the case would be listed for hearing once the three-judge bench is constituted. “This matter requires to be heard by a three-judge bench,” the court observed.
Earlier, the apex court had appointed senior advocate Siddharth Luthra as amicus curiae to assist in the case.
On September 8, the Supreme Court had taken note of the Kerala High Court’s regular practice of entertaining anticipatory bail applications directly, without litigants first moving the sessions court.
“One issue that is bothering us is that in the Kerala High Court, there seems to be a regular practice of entertaining anticipatory bail applications directly without the litigant approaching the sessions court. Why is that so?” the bench had asked.
It noted that both the Code of Criminal Procedure and the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 establish a clear hierarchy in bail matters. Section 482 of the BNSS pertains to directions for granting bail to persons apprehending arrest.
“It doesn’t happen in any other state. Only in the Kerala High Court have we noticed that such applications are regularly entertained directly,” the court remarked.
The observation came during the hearing of a plea by two men challenging a Kerala High Court order denying them anticipatory bail. The Supreme Court noted that the petitioners had directly approached the high court instead of first applying to the sessions court.
It observed that when applications are directly filed before the high court, important factual details that might surface before the sessions court could be omitted from the record.
“We are inclined to consider this issue and determine whether approaching the high court is a matter of choice or whether it should be mandatory for the accused to first seek relief from the sessions court,” the bench said.
The Supreme Court also issued a notice to the Kerala High Court, through its registrar general, seeking its response on the matter.
