Reforming Anticipatory Bail: SC Amici Report Champions Access to Justice via Sessions Courts

New Delhi – In a significant development with far-reaching implications for criminal procedure, amici curiae appointed by the Supreme Court have recommended establishing the "primacy" of Sessions Courts as the initial forum for anticipatory bail applications. The detailed report, submitted before a bench of Justice Vikram Nath and Justice Sandeep Mehta, advocates for a balanced approach that respects the concurrent jurisdiction granted by Parliament while promoting judicial hierarchy and, crucially, enhancing access to justice for all citizens.

The report, authored by Senior Advocate Siddharth Luthara and Advocate G Arudhra Rao, was filed in Mohammed Rasal C. v. State of Kerala , a case where the apex court had previously expressed its disapproval of High Courts, particularly the Kerala High Court, routinely entertaining pre-arrest bail pleas directly. The amici's submission provides a comprehensive framework to streamline the process, arguing that while High Courts should retain discretion for exceptional cases, the default path for an individual apprehending arrest should lead to the more accessible Sessions Court.

The Core Recommendation: Primacy over Prohibition

At the heart of the amici's submission is the concept of "primacy" for the Court of Sessions. The report meticulously avoids calling for an outright bar on approaching High Courts directly, recognizing that such a move could be construed as "judicial legislation," a practice deemed impermissible by a seven-judge bench in P. Ramachandra Rao v. State of Karnataka (2002) .

Instead, the amici propose a system of guided judicial discretion. "Our recommendations seek to propose “primacy” of the Courts of Sessions in dealing pre-arrest bail applications though the powers under S. 438 CrPC/ S.482 BNSS are of a concurrent nature," the report states. "This proposal for declaring the “primacy” of the Court of Sessions ties directly into the larger societal endeavour of ensuring “Access to Justice”, which is the cornerstone of a vibrant democracy."

This approach mirrors the established practice under Articles 32 and 226 of the Constitution, where the Supreme Court often encourages litigants to first approach the relevant High Court. The amici suggest a similar self-restraint by High Courts in the context of anticipatory bail, redirecting applicants to the "more accessible and equally efficacious remedy" available at the Sessions level.

Defining the "Exceptional Circumstances"

To prevent ambiguity, the amici have carved out specific, limited exceptions where a direct approach to the High Court would be justified. These exceptional circumstances include:

a) Territorial Jurisdiction: Where an accused does not ordinarily reside within the territorial jurisdiction of the Sessions Court but apprehends arrest there. b) Breakdown of Local Redressal: Situations where local conditions, such as law and order disturbances, strikes, or specific hostility against the individual, make it impossible to effectively seek relief from the Sessions Court. c) Medical or Similar Emergencies: When a demonstrable inability to approach the Sessions Court arises from a medical crisis or another emergency of a similar grave nature. d) Special Courts: Cases where the court of first instance is a Special or Designated Court of the rank of an Additional Sessions/Sessions Judge under a special or local law.

This curated list of exceptions aims to provide High Courts with clear guidelines, ensuring their intervention remains rare and justified, thereby preserving the integrity of the judicial hierarchy.

The Problem: Overburdened High Courts and a Weakened District Judiciary

The amici's report is bolstered by data highlighting a worrying trend in several states. Statistics collected from High Courts revealed that in Odisha, a staggering 17,978 of 18,340 pre-arrest bail petitions were filed directly before the High Court. The Kerala High Court ranked second, with 7,449 of 9,215 applications bypassing the Sessions Court.

This practice, the report warns, has a dual negative effect. Firstly, it "floods" High Courts with a spate of applications, creating congestion and diverting judicial resources from other pressing matters. The Supreme Court itself had noted this risk in its September 8 order, foreseeing a "chaotic situation" if the trend continued unchecked.

Secondly, and perhaps more critically, it undermines the authority and public confidence in the district judiciary. The amici cautioned that encouraging litigants to bypass Sessions Courts creates a "prejudicial perception" that these courts are less competent to grant anticipatory bail. Citing the Supreme Court's own emphasis on strengthening the district judiciary in Satender Kumar Antil v. CBI (2022) , the report underscores that these courts represent the citizen's first, and often only, point of contact with the justice system. Weakening them erodes the foundation of the entire structure.

Practical Advantages of the Proposed System

The report outlines several practical benefits of prioritizing the Sessions Court.

• Enhanced Access to Justice: Sessions Courts are geographically more accessible and less expensive for litigants compared to High Courts, which are typically located in state capitals. "Where Parliament has provided for concurrent powers, any proposal on which court to approach must be seen through the prism of enhancing access to justice,” the submission argues.
• Two-Tiered Remedy: Approaching the Sessions Court first provides the applicant with two opportunities for relief. If the plea is denied, the individual can still approach the High Court, armed with the reasoning of the lower court.
• Informed High Court Adjudication: The High Court benefits from a well-reasoned order from the Sessions Court, providing a clearer factual and legal matrix for its own consideration. This hierarchical approach leads to more robust and informed appellate review.
• Decongestion of High Courts: A systemic shift would significantly reduce the caseload of High Courts, allowing them to focus on appeals and matters of wider legal importance.

Navigating Conflicting High Court Views

The issue is complicated by conflicting judgments from various High Courts on the matter. The amici's report also criticized a subsequent judgment by the Kerala High Court in Venu Gopalakrishnan and Ors. v. State of Kerala and Anr. , passed just days after the Supreme Court's initial observations, which reiterated that High Courts are not barred from directly hearing anticipatory bail applications. The amici noted that such directions "have the potential to deter Sessions Courts from giving anticipatory bail – for reasons unconnected with either the law or the facts of a particular case."

The Supreme Court, having taken the amici's comprehensive report on record, has scheduled the next hearing for November 12. Its eventual decision is poised to settle the procedural ambiguity and establish a uniform practice across the country, fundamentally reshaping the procedural landscape for one of the most vital safeguards of personal liberty in Indian criminal law.