Abstract
This article analyses the recent amici curiae report submitted before the Supreme Court. The report recommended that High Courts should be approached for anticipatory bail pleas only in limited circumstances. The article underlines the reasoning of the report. It stresses the importance of having clarity on the roles of the Sessions Courts and High Courts when it comes to anticipatory bail. The article relies mainly on the case of Mohammed Rasal C & Anr. v State of Kerala & Anr. [Mohammed Rasal C & Anr. v State of Kerala & Anr., SLP (Crl.) No. 6588/2025]
Introduction: Anticipatory Bail
‘Bail’ has not been defined in the Criminal Procedure Code, but the concept of bail aligns with the fundamental principles enshrined in the Constitution. According to Black’s Law Dictionary, bail is to “procure the release of a person from legal custody by undertaking that he/she shall appear at the time and place designated and submit to the jurisdiction of the court.” Anticipatory bail is an important safeguard in the Indian criminal justice system. It allows a person who apprehends arrest for a non-bailable offence to seek pre-arrest bail from a Sessions court or a High court. The scope of Section 438(1) has been clarified by several cases. In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, the court noted that Article 21 of the Constitution should be taken into consideration when interpreting Section 438(1). It highlighted that filing of FIR is not a condition precedent to exercise power under Section 438, and an order under it would not affect the right of police to conduct investigation. [Siddharam Satlingappa Mhetre v. State of Maharashtra AIR 2011 SC 312]. The objective behind anticipatory bail is to protect people who are falsely implicated by their rivals for various personal reasons. [Gurbaksh Singh Sibbia v. State of Punjab AIR 1980 SC 1632]. In the case of Adri Dharan Das v. State of West Bengal, it was emphasised that the provision is concerned with personal liberty since, at the time of application, the person is innocent. To invoke Section 438, the applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. This means that the belief must be founded on reasonable grounds, something that is tangible. Mere fear would not amount to belief. [Adri Dharan Das v. State of West Bengal (2005) 4 SCC 303]
Key Words – anticipatory bail, concurrent jurisdiction, district court’s role, judicial hierarchy
Supreme Court’s concern: Legal Framework, Concurrent Jurisdiction, and Judicial Hierarchy
Section 438 of Cr.P.C. (now, Section 482 of BNSS) grants concurrent jurisdiction to both the Sessions court and the High court to grant anticipatory bail. But there is no clarity on the procedural aspect- whether to approach the Sessions court first or not. Due to the lack of any mandate, there is a trend of applying for bail directly to the High Court, especially in states such as Kerala and Odisha. The diverse approaches across states have led to unclear circumstances. According to a report filed before the Supreme Court after collecting data from all High courts, Odisha topped the list of granting pre-arrest bail to the highest number of people who directly approached the High court. In Kerala, over 80 percent of all anticipatory bail petitions were filed in the High Court without approaching the Sessions Court first. It was also noted that there were no notifications or circulars regarding the filing of pre-arrest bail before the High Court.
This concerns the Supreme Court as it may burden High Courts and undermine the district judiciary’s role. It criticised the current trend as it would lead to erosion of public confidence in the district judiciary. Following this, the Supreme Court appointed amici curiae (Senior Advocate Siddharth Luthra and Advocate G.Arudhra Rao) to deliberate on this issue. The next section deals with the stance taken by the amici curiae.
Stance of the Amici Curiae: Four Exceptional Circumstances for Direct Access
It was suggested by the amici curiae that High Courts can be approached directly for pre-arrest bail only in exceptional circumstances. While both the courts have concurrent jurisdiction to grant pre-arrest bail under Section 438 of the CrPC (now, 482 of the BNSS), the Sessions courts should be treated as the primary forum for this. To provide a balanced solution, they described exceptional circumstances in which an individual apprehending arrest can approach a High Court under Section 438 CrPC/482 BNSS directly. These are given below:
- Territorial Jurisdiction: When the accused ordinarily resides outside the territorial jurisdiction of the Sessions court and/or the High court where the arrest is apprehended.
- Inaccessibility to the Sessions court: When the accused cannot apply to the Sessions court as the jurisdiction suffers due to law-and-order disturbance, strikes, hostility against the individual, or reasonable apprehension of bodily harm to the individual or family members, etc.
- Medical or similar emergency: When the accused can show an inability due to medical or other emergency grounds.
- Special/Designated courts: This supports applying pre-arrest bail directly to the High Court when the court of first instance is a special court with the rank of Sessions Judge that deals with special enactments like POCSO, NDPS, etc.
These circumstances justify the direct application of pre-arrest bail to the High Court. The report highlighted the need to prevent centralising relief in High Courts and enabling accessibility through district courts. They observed that since the Parliament confers concurrent jurisdiction, the powers of the High Court cannot be curtailed in this regard, as this would amount to judicial legislation. Nevertheless, guidelines can be issued to encourage applicants to approach the Sessions Court first. The practical advantages of approaching the Sessions court were also highlighted. District courts are more accessible and less expensive than High courts. If one approaches the Sessions court first, it gives them two opportunities for relief, one before the Sessions court and another before the High Court. On highlighting this advantage, litigants can be encouraged to make use of district courts.
Conclusion
The ongoing debate on direct anticipatory bail pleas before High Courts highlights tension between efficiency and liberty. The Supreme Court’s criticism is rightly placed, as this trend was burdening High Courts. The report submitted by the amici curiae does a much-needed job of providing a solution through identifying exceptional circumstances that allow direct applications to the High Courts. In light of this, High Courts must issue circulars regulating the order to access justice in pre-arrest bail cases.
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WRITTEN BY: Farzeen Zaman
