The Supreme Court of India on Wednesday referred the crucial issue of whether litigants can directly approach high courts for anticipatory bail to a three-judge bench. This decision comes as a response to concerns over existing practices in various states, particularly Kerala. The apex court emphasized the need for a structured approach, guiding how individuals seeking anticipatory bail must navigate through the legal system.
A bench comprising Justices Vikram Nath and Sandeep Mehta remarked that this matter necessitates a thorough examination and should be placed before a larger bench once it is constituted. The court indicated, “This matter requires to be heard by a three-judge bench,” highlighting the complexity of the legal framework surrounding anticipatory bail in India.
In the current discourse, the Supreme Court had previously appointed senior advocate Siddharth Luthra as amicus curiae to provide assistance in addressing this pressing issue.
The Supreme Court’s concerns trace back to September 8, when it scrutinized the practice of the Kerala High Court allowing anticipatory bail applications directly, without litigants seeking intervention from the sessions court first. The bench pointedly questioned, “One issue that is bothering us is that in the Kerala High Court, anticipatory bail applications are regularly entertained directly. Why is that so?”
In exploring this matter, the court referred to provisions within the age-old Code of Criminal Procedure and the new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The justices noted the existing legal hierarchy concerning bail applications. Specifically, Section 482 of BNSS elucidates the guidelines for granting bail to individuals facing imminent arrest.
“It doesn’t happen in any other state. Only in the Kerala High Court… applications for anticipatory bail are regularly entertained directly,” the bench underscored, indicating a significant deviation from procedural norms observed in the rest of the country.
This discussion arose while hearing a plea from two men contesting a Kerala High Court order that denied them anticipatory bail. The petitioners approached the high court directly, bypassing the sessions court—a move that raised red flags. The Supreme Court cautioned that this practice could potentially deprive courts of essential factual records that would typically be present during sessions court proceedings.
The bench posited an important question: “We are inclined to consider whether the option to approach the high court is a matter of choice for the accused or whether it should be mandatory to first go to the sessions court.” This inquiry reflects the court’s intention to ensure a structured lawful approach in bail matters, which could ultimately protect the rights of all accused individuals.
Recognizing the importance of this issue, the Supreme Court has issued a notice to the Kerala High Court through its Registrar General, seeking a response on the matter. The outcome of this judicial deliberation could lead to substantial shifts in how anticipatory bail applications are processed across Indian high courts. This issue thus holds significant implications for legal practitioners and litigants throughout the country.
