Sessions-First as a Rule, Not a Straitjacket – Calibrating High Court Access in Anticipatory Bail

When is it lawful and rational to approach the High Court directly for anticipatory bail?

Introduction

The Supreme Court’s decision in Mohd. Rasal C. v. State of Kerala¹ marks a pivotal stage in the evolution of anticipatory bail jurisprudence under Section 438, Criminal Procedure Code, 1973 (CrPC) now re-enacted as Section 482, Nagarik Suraksha Sanhita, 2023. Concerned by the growing tendency of litigants to approach High Courts directly, the Bench reiterated that such applications should, as a rule, originate before the Court of Session. To clarify the limits of this concurrent jurisdiction, the Court appointed Senior Advocate Sidharth Luthra, assisted by Advocate G. Arudhra Rao, as Amicus Curiae.

The amicus noted that while both forums possess equal statutory power, the Sessions Court was envisaged as the primary forum, with the High Court reserved for extraordinary or urgent cases. This interpretation, though doctrinally sound, often collides with ground level realities where procedural or structural constraints render the Sessions tier ineffective.

The present paper revisits that understanding through two lenses — statutory design and judicial practice. Although Parliament deliberately conferred concurrent jurisdiction, litigants are effectively compelled to move the Sessions Court first even when that forum’s procedures fail to provide immediate protection. The practical outcome is a tension between the principle of judicial hierarchy and the constitutional demand for meaningful access to liberty.

The central question, therefore, is straightforward yet significant: When is it lawful and rational to approach the High Court directly for anticipatory bail? The analysis argues that the Sessions-first rule should remain the ordinary route, but systemic departures — such as refusal of ad interim relief, rigid time-caps, or adjournments without protection — justify narrow, criteria-based exceptions permitting a High Court-first filing.

To ground this claim, the discussion draws on precedent concerning three established aspects of anticipatory bail:

1. the permissibility of ex parte or ad interim protection,

2. the non-time bound nature of relief once granted, and

3. the judicial duty of expedition.

Each represents an area where appellate courts have repeatedly intervened to correct Sessions level practice. The subsequent sections trace how these doctrinal principles interact with on-ground frictions, leading to a pragmatic framework that reconciles hierarchy with effective access to justice.

Doctrinal background

Objective and definition

Neither the CrPC nor its predecessors formally define “bail”; they merely distinguish bailable from non-bailable offences.² The Nagarik Suraksha Sanhita, 2023, however, adds clarity by describing bail³ as the release of a person accused or suspected of an offence from legal custody on such terms as the court or officer considers reasonable. Judicial⁴ and lexical authorities explain it as the security that ensures an accused’s appearance during investigation or trial.⁵ Constitutionally, the idea flows from Article 21’s protection of personal liberty and the maxim “bail, not jail”⁶. The objective is preventive, not punitive — to secure attendance, preserve cooperation, and ensure that restrictions imposed are proportionate to the risk of flight⁷ or interference with evidence.⁸

Anticipatory bail

Anticipatory bail operates as a pre-arrest safeguard that shields personal liberty where custodial interrogation is unnecessary.⁹ It directs that, if arrest occurs, the applicant shall be released on bail — a preventive remedy that activates only upon arrest. The right arises from a credible apprehension of arrest rather than from custody itself.¹⁰

Judicial authority recognises that courts may extend ex parte or ad interim protection when delay would defeat the remedy, provided the prosecution is promptly notified and the matter listed for an early inter-party hearing.¹¹ Conditions attached to such orders — cooperation with investigation, non-tampering with evidence, disclosure of travel, and attendance as required — serve as risk-management tools calibrated to the facts of each case. The Courts are also expected to consider the applicant’s financial capacity and, where appropriate, permit release on personal bond¹².

As repeatedly affirmed in Sushila Aggarwal¹³ and Siddharam Satlingappa Mhetre v. State of Maharashtra¹⁴, the protection ordinarily endures without fixed expiry unless “special reasons” justify limitation. Duration is supervised through modification or cancellation on supervening grounds, not by embedding arbitrary time-caps at inception. Together, these settled propositions define the doctrinal framework against which practice level deviations at the Sessions tier must be assessed.

Concurrent jurisdiction

Historical position

Section 482(1), Nagarik Suraksha Sanhita, 2023 (BNSS) [corresponding to Section 438(1) CrPC] confers concurrent power on the High Court and the Court of Session to grant anticipatory bail. Judicial convention, however, evolved to treat the Sessions Court as the normal forum and the High Court as an exceptional one.

The Rajasthan High Court in Hajialisher v. State of Rajasthan¹⁵, held that petitions should ordinarily begin before the Sessions Court to maintain the hierarchical order of criminal courts. By contrast, the Kerala High Court in Canara Bank v. State of Kerala¹⁶, took a more liberal approach, ruling that an accused is not legally bound to first seek relief at the Sessions level and may move the High Court directly.

Although the Supreme Court’s early observations were not conclusive, they implied that anticipatory bail petitions are best heard by the Court having territorial jurisdiction over the offence. This convention reinforced the Sessions-first practice while leaving the High Court’s concurrent authority intact. The result was a prudential rule of preference rather than a statutory restriction — a balance that later judgments and the case of Rasal C.¹⁷ proceedings sought to refine.

Contemporary reaffirmation (the Kerala trigger and the Supreme Court’s call for structured carve-outs)

The issue resurfaced in the case of Rasal C.¹⁸ where the Supreme Court voiced concern over High Courts entertaining anticipatory bail pleas directly without applicants first approaching the Sessions Court. To clarify the limits of concurrent jurisdiction, the Bench appointed Senior Advocate Sidharth Luthra, assisted by Advocate G. Arudhra Rao, as Amicus Curiae and invited the Kerala High Court to review its own practice.

Despite this caution, the Kerala High Court in Venu Gopalakrishnan v. State of Kerala¹⁹ reaffirmed that such petitions are maintainable directly before the High Court, relying on earlier State precedents. This divergence between the Supreme Court’s advisory tone and continuing State level practice highlights the absence of a uniform approach.

The episode exposed a larger tension between judicial hierarchy and liberty centric access to remedies. It also prompted renewed debate on whether the Sessions-first convention should evolve into a codified framework of structured exceptions — a task the Amicus Curiae exercise in the case of Rasal C.²⁰ sought to facilitate.

Analysis of the report

Criteria proposed for the direct High Court access

The amici’s report identified four situations in which direct recourse to the High Court may be justified:

1. Extra-territorial risk — where the accused ordinarily resides outside the Sessions Court’s jurisdiction and apprehends arrest elsewhere.

2. Local impediments — where law and order disturbances, strikes, or personal hostility render approach to the Sessions Court unsafe or impracticable.

3. Medical or comparable emergency — where illness or similar constraint prevents timely appearance.

5. Special or designated courts — where the “court of first jurisdiction” itself is a special or designated the Sessions rank court under a local or special law.

These narrowly defined carve-outs balance access to justice with respect for judicial hierarchy, acknowledging Parliament’s intent to confer concurrent powers without eroding the Sessions-first principle.

Critical observations and rationale

The Amicus Curiae emphasised that the Court of Session should ordinarily remain the forum of first resort. Its proximity to the accused and lower procedural cost makes it the natural starting point for bail adjudication. The report warned that the growing trend of High Courts entertaining petitions at the threshold — particularly in Kerala, Odisha and Andhra Pradesh which risks overburdening higher courts and fostering doubts about Sessions level competence.

Channelling applications through the Sessions tier, the report explained, creates a two-level safeguard: The accused receives an initial hearing below and, if needed, a review above. The analogy was drawn from the constitutional practice under Articles 32 and 226, where litigants are expected to approach the High Court before the Supreme Court despite concurrent jurisdiction.

At the same time, the amicus cautioned that any judicial attempt to restrict or qualify Parliament’s concurrent design would verge on legislating from the Bench — an approach impermissible under the principle articulated in P. Ramachandra Rao v. State of Karnataka²¹. The framework thus respects legislative intent while encouraging functional discipline within the hierarchy.

Yet, its premise that Sessions Court uniformly apply doctrine remains contestable. As the following section shows, systemic frictions — denial of ad interim protection, arbitrary time-caps, and procedural delay — often erode the practical efficacy of the Sessions forum and justify a narrow, fact-based High Court first exception.

Practice — doctrine gap: The three frictions

Notice to public prosecutor and the question of ex parte/ad interim protection

The Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab²² affirmed that courts may grant ex parte or ad interim protection where delay would make the remedy illusory, subject to prompt notice to the prosecution and an early inter-party hearing. Such temporary relief, anchored in Article 21, safeguards liberty rather than indulging procedure.

In practice, however, many Sessions Court adjourn matters “for instructions” or list them routinely without interim protection, creating arrest windows that defeat the purpose of anticipatory bail. Higher courts have repeatedly deprecated this approach. In Shrenik Jayantilal Jain v. State of Maharashtra²³, the Bombay High Court directed that where interim relief is refused, the application must not remain pending and any adjournment should be limited to two or three days. The Supreme Court in the case of Sushila Aggarwal²⁴ likewise cautioned against open-ended listings, holding that pendency without protection undermines personal liberty.

From an access route perspective, these realities justify a narrowly defined High Court first exception where:

1. a credible and imminent risk of arrest is shown; or

2. the Sessions Court declines ad interim relief and fixes no date certain (or an unreasonably distant one); or

3. local conditions render the Sessions forum effectively inaccessible.

Duration of anticipatory bail (time-caps and charge-sheet cut-offs)

The governing rule is settled: once anticipatory bail is granted, it ordinarily continues without fixed expiry. The filing of a charge-sheet, taking of cognizance, or issuance of summons does not terminate protection unless special reasons are recorded. The Constitution Bench in the case of Sushila Aggarwal²⁵ held that duration is a matter of judicial discretion and cannot be confined by arbitrary timelines. In the case of Siddharam Satlingappa Mhetre²⁶ similarly cautioned that anticipatory bail should not hinge on procedural milestones.

Risk management is achieved through conditions of cooperation, attendance, and non-tampering, not by imposing calendar cut-offs. Where circumstances change, modification or cancellation may be sought under the Code, but expiry clauses inserted at inception are unsustainable.

Despite this clarity, Sessions Court frequently restrict validity — sometimes to 60 days or till the filing of the charge-sheet. High Courts have consistently invalidated such curtailments. The Kerala High Court in Siby Mathews v. State of Kerala²⁷ struck down a 60-day limit as contrary to the Sushila Aggarwal case²⁸. Similar reasoning appears in Rajesh Pratap Giri v. State of U.P.²⁹

Accordingly, absent “special reasons recorded”, anticipatory bail orders should endure beyond procedural stages, and any termination must arise from express judicial finding, not automatic lapse.

Expeditious hearing same day or date certain versus “in due course”

Anticipatory bail applications engage the fundamental right to personal liberty and must be heard with expedition. The Supreme Court in Sushila Aggarwal case³⁰ held that petitions should be decided promptly, and indefinite listings without interim protection defeat Article 21. In the case of Rajesh Seth³¹ reinforced that pendency without protection exposes an applicant to coercive action.

In practice, Sessions Court often adjourn matters “in due course”, decline ad interim relief, or reserve orders for weeks, leaving the accused vulnerable. Appellate courts have repeatedly corrected this lapse. In Sandip Gorakh Naik v. Union of India³², the Bombay High Court directed the Sessions Judge to decide such applications on a fixed date, emphasising that either interim protection must be granted or a prompt final hearing ensured.

While superior courts recognise the need for limited administrative flexibility, they require that hearings be fixed on date certain terms with reasons recorded for any short adjournment. Repeated deferrals without protection transform process into punishment. Where such delay persists, a narrow High Court first approach becomes justified, consistent with the liberty protective spirit of Section 482 BNSS.

Counterarguments and limits

The concerns raised by the State — such as risk of absconding, witness intimidation, or evidence tampering are legitimate and well recognised. The Supreme Court has consistently directed that these factors guide the grant or refusal of anticipatory bail.³³

The statutory framework itself embeds these safeguards. Under Section 482(2) BNSS [corresponding to Section 438(2) CrPC] read with Section 480(3) BNSS [corresponding to Section 437(3) CrPC] the court may impose conditions ensuring cooperation, attendance, and non-tampering. Breach or change of circumstances empowers the prosecution to seek modification or cancellation under Section 483(3) BNSS [corresponding to Section 439(2) CrPC].

These mechanisms preserve equilibrium between liberty and accountability. The limited High Court first exceptions proposed here do not undermine the Sessions first norm but ensure that where the lower forum ceases to function effectively — through delay or denial of interim protection, the guarantee of personal liberty under Article 21 remains substantive.

Criteria for High Court — first approach (with model directions)

Drawing upon the Gurbaksh Singh Sibbia case³⁴, Sushila Aggarwal case³⁵ and the reasoning of the Amicus Curiae report in the case of Rasal C.³⁶, the following principles outline when direct High Court access may be justified.

The Sessions first rule remains the norm. A High Court first filing is exceptional and permissible only when recourse to the Sessions Court is illusory or threatens immediate loss of liberty. Direct approach may be warranted where the record discloses one or more of these circumstances:

1. Imminent arrest and denial of prompt protection — a genuine risk of arrest with refusal of ad interim relief or fixation of a distant hearing.

2. Procedural delay — repeated adjournments, indefinite listings, or prolonged reservation of orders without interim safeguards.

3. Time-bound or self-expiring orders — imposition of arbitrary time-caps or automatic lapses without “special reasons recorded”.

4. Dock-to-custody risk — where personal appearance at final hearing exposes the applicant to immediate custody upon rejection.

5. Venue-based or hostility impediments — credible local hostility or safety threats that make the Sessions forum ineffective.

6. Persistent non-application of settled principles — a consistent pattern of disregard for binding rules on ad interim relief, non-time-bound duration, or expedition.

These parameters reconcile concurrent jurisdiction with Article 21’s guarantee of liberty. They retain the hierarchical discipline envisioned by Parliament while ensuring that anticipatory bail protection remains practical and not merely theoretical.

Conclusion

Anticipatory bail is not a gesture of leniency but a constitutional safeguard that shields liberty before the power of arrest is exercised. When established doctrine repeatedly meets systemic frictions — denial of ad interim relief, arbitrary time-caps, or adjournments without protection, a narrow High Court first exception becomes both lawful and necessary.

Such calibrated exceptions do not erode the Sessions first rule; they give it substance by ensuring that the “ordinary forum” remains an effective remedy in practice. The measure of judicial hierarchy is not form but functionality — how promptly and fairly it secures personal liberty.

The Supreme Court’s pending decision in Rasal C. case³⁷ offers an opportunity to codify this balance: preserving the structure of criminal court hierarchy while ensuring that the liberty protective promise of Section 482 BNSS (and corresponding Section 438 CrPC) remains real, not rhetorical.