In a significant move, the Supreme Court of India has referred the contentious legal issue surrounding the jurisdiction hierarchy for anticipatory bail pleas—a practice heavily scrutinised in the context of the Kerala High Court—to a larger three-judge bench.

The Bench of Justices Vikram Nath and Sandeep Mehta decided on Wednesday to refer the matter and confirmed that the Kerala High Court Advocates' Association (KHCAA), which has sought to intervene, will be granted a full hearing.

The Core of the Legal Dispute

The central question before the apex court is whether an accused person seeking anticipatory bail must first approach the Sessions Court before moving the High Court, despite both courts holding concurrent jurisdiction under Section 438 of the Code of Criminal Procedure (CrPC) (now Section 482 of the Bharatiya Nagarik Suraksha Sanhita or BNSS).

The Supreme Court had previously flagged the practice prevalent in the Kerala High Court of entertaining these pleas directly, calling it a "regular practice" that is uncommon in other jurisdictions.

Senior Advocate Sidharth Luthra, appointed as Amicus Curiae in the matter, supported the Supreme Court's concern. While acknowledging the concurrent jurisdiction, he argued that to promote judicial efficiency and greater access to justice, the primacy should ideally lie with the Sessions Court. Luthra advised against entirely ousting the High Court's jurisdiction but maintained that approaching the Sessions Court first would serve the litigant’s "best interest."

Kerala Bar Body’s Strong Defence

In direct opposition to this view, the KHCAA—representing the collective resolution of 165 practicing lawyers—moved an impleading application to present its defence of the status quo.

The KHCAA application firmly contends that the relevant statutes confer concurrent jurisdiction without imposing any hierarchical restriction or precondition. They highlight the use of the disjunctive word “or” in the statute, arguing that this unambiguously grants the applicant the choice of which court to approach.

"It would be inappropriate to read into the statute, any fetters that have not been placed by the legislature," the KHCAA application states, adding that had the legislature intended such a restriction, it would have used clear and express terms.

The Association also drew attention to the 2003 Kerala High Court Division Bench judgment in Balan v. State of Kerala, which explicitly held that an accused is not required to first approach a Sessions Court. It is on the strength of this precedent that benches of the Kerala High Court have been admitting direct pleas.

Technology to Counter Judicial Concerns

Crucially, the KHCAA also addressed the Supreme Court's concerns about accessing case records. It pointed out that the online case management system in Kerala enables the High Court to access trial court records immediately, thereby eliminating any "potential prejudice" or delay in materials necessary for judicial consideration.

Senior Advocates V Giri and S Nagamuthu, along with advocate A Karthik, appeared for the KHCAA before the Supreme Court. The Bench acknowledged the complexity and importance of the matter, agreeing to hear the Association before directing that the entire issue be placed before a larger three-judge Bench for final determination.

The decision of the three-judge Bench will clarify the judicial landscape regarding anticipatory bail, potentially impacting procedural jurisprudence across the country, especially with the imminent commencement of the Bharatiya Nagarik Suraksha Sanhita (BNSS).