No Person Seeking Pre-Arrest Bail Should Be Allowed To Directly Approach High Court: Supreme Court Issues Notice To Kerala HC
The Supreme Court said that the hierarchy of Courts demands that no person seeking such remedy should be encouraged or allowed to directly approach the High Court for exercising jurisdiction under Section 482 of the BNSS.
Justice Vikram Nath, Justice Sandeep Mehta, Supreme Court
The Supreme Court, while hearing an SLP, took note of the practice of directly approaching the High Court for pre-arrest bail, without first approaching to the Session Court and opined that the hierarchy of Courts demands that no person seeking such remedy should be encouraged or allowed to directly approach the High Court for exercising jurisdiction under Section 482 of the BNSS.
An SLP was filed against the order of the Kerala High Court wherein the High Court denied pre-arrest bail to the accused persons.
The Bench of Justice Vikarm Nath and Justice Sandeep Mehta observed, “We are of the opinion that though the concurrent jurisdiction is conferred upon the Sessions Court and the High Court to entertain a prayer for pre-arrest bail under Section 482 of the BNSS (formerly, Section 438 CrPC), the hierarchy of Courts demands that no person seeking such remedy should be encouraged or allowed to directly approach the High Court for exercising jurisdiction under Section 482 of the BNSS (formerly, Section 438 CrPC) by bypassing the jurisdiction of the concerned Sessions Court.”
Advocate K. Rajeev represented the Petitioners, while Advocate Harshad V. Hameed represented the Respondents.
Case Brief
The Petitioners were accused for the offence under Sections 342, 376(2)(n) of the Indian Penal Code and Section 75 of the Juvenile Justice Act and Section 6 r/w Section 5(1) and 17 of the POCSO Act, 2012. The Petitioners sought pre-arrest bail from the Kerala High Court, however, the same was refused by the High Court. Thereupon, the SLP was filed before the Supreme Court challenging the same.
Court’s Observation
The Supreme Court granted interim protection to the accused persons with the direction that the Petitioners would continue to extend cooperation during the investigation and thereafter during the trial.
However, the Bench expressed its concern over the practice of directly approaching the High Court for pre-arrest bail without first approaching the Sessions Court for the said relief.
The Supreme Court opined that though the concurrent jurisdiction was conferred upon the Sessions Court and the High Court to entertain a prayer for pre-arrest bail under Section 482 of the BNSS, the hierarchy of Courts demands that no person seeking such remedy should be encouraged or allowed to directly approach the High Court for exercising jurisdiction under Section 482 of the BNSS.
Further, the Court emphasised that the Sessions Judge exercises powers under Section 438 CrPC in relation to all cases registered with the police stations in the particular District. Therefore, this area-wise distribution of work would make it much more convenient and facilitate expeditious disposal, if the application for pre-arrest bail was first filed before the Sessions Court which would have a direct and first-hand assistance of the concerned Public Prosecutor appointed for that particular District.
“We further feel that if the practice of entertaining the applications for pre-arrest bail directly in the High Court is encouraged, and the parties concerned are not relegated to first approach the Sessions Court concerned, the High Court would be flooded with a spate of pre-arrest bail applications thereby creating a chaotic situation”, the Court said.
The Bench opined that if the parties were required to approach the Sessions Court for seeking remedy of pre-arrest bail, there would be a strong probability that a significant number of applications would be allowed at that level only thereby acting as a filtration process before the process reaches the High Court.
The Supreme Court also noted that in most of the States there was a consistent practice requiring the litigant to first approach the Sessions Court for seeking relief of pre-arrest bail and only in the event of denial of such relief, the litigant would be granted access to approach the High Court for seeking such relief.
“This is, of course, subject to just exceptions and the High Court, for reasons to be recorded, may entertain an application for pre-arrest bail directly in special/extra-ordinary circumstances”, the Court added.
Consequently, the Supreme Court decided to consider the said practice and issued notice to the Kerala High Court. Senior Advocate Sidharth Luthra was appointed as Amicus Curiae by the Court to assist in the matter.
Accordingly, the matter will be heard in October.
Cause Title: Mohammed Rasal C& Anr V. State of Kerala
Appearance:
Petitioners: Advocates K. Rajeev (AOR), Shinoj K.Narayanan, Niveditha R Menon, Aditya Verma, and Tarun Kumar
Respondents: Advocates Harshad V. Hameed (AOR) ,Dileep Poolakkot,Ashly Harshad, and Anshul Saharan.
