Institute of Legal and Management Studies

The Supreme Court has once again cautioned High Courts against directly entertaining anticipatory bail applications, stressing that litigants should ordinarily be directed to first approach the Sessions Court before invoking the High Court's concurrent jurisdiction.

The case arose from the murder of a health worker in Patna, who was shot dead in broad daylight allegedly at the behest of moneylenders demanding repayment at exorbitant rates of interest. The complainant alleged that after extorting lakhs of rupees from the deceased, the accused engaged contract killers when she was unable to meet further demands. The accused persons, apprehending arrest, directly approached the Patna High Court for anticipatory bail, which was granted.

Setting aside the High Court's order, a bench of Justices Vikram Nath and Sandeep Mehta observed that the anticipatory bail had been granted without any cogent reasoning, despite grave allegations involving a contract killing. The Court noted that the High Court had not even impleaded the complainant as a party before granting relief.

Before parting, the bench expressed concern over the manner in which the High Court dealt with the matter:

“However, before parting, we do wish to express our sincere concern with the haste at which the High Court has dealt with this matter. While the scheme of Criminal Procedure Code, 1973 (now Bharatiya Nagarik Suraksha Sanhita, 2023) provides concurrent jurisdiction to the High Court and Sessions Court for entertaining applications for anticipatory bail, this Court has time and again observed that High Court should always encourage exhausting an alternative/concurrent remedy before directly interfering itself.”

The Court explained that directing parties first to the Sessions Court ensures a two-tiered scrutiny of bail pleas: it provides the High Court with the benefit of the Sessions Court's reasoning, while also offering the complainant an opportunity to contest the plea before the High Court.

This ruling comes in the backdrop of the Supreme Court recently issuing notice to the Kerala High Court over its practice of directly entertaining bail applications, bypassing Sessions Courts.

In 2023, a two-judge bench of the Court, in Gauhati High Court Bar Association v. State of Assam & Ors, had decided to consider the question "whether the High Court exercising jurisdiction under Section 438 has discretion not to entertain such an application on the ground that the applicant must first apply to the Court of Sessions."

Citation : 2025 LiveLaw (SC) 965

Click here to read the order