New Delhi | The Supreme Court on Wednesday referred to a three-judge bench the issue whether it is the "choice of the party" to move high courts for anticipatory bail or was it mandatory for litigants to first approach a sessions court.
A bench of Justices Vikram Nath and Sandeep Mehta said the matter be posted for hearing as and when the three-judge bench is constituted.
"This matter requires to be heard by a three-judge bench," the bench said.
The apex court had earlier appointed senior advocate Siddharth Luthra as an amicus curiae for assistance in the matter.
The top court on September 8 had taken note of the Kerala High Court's "regular practice" of entertaining anticipatory bail applications directly without the litigant moving the sessions court.
"One issue which in bothering us is, in the Kerala High Court there seems to be a regular practice that the high court entertains the anticipatory bail applications directly without the litigant approaching the sessions court. Why is that so?" the bench had asked.
It had said there was a hierarchy provided in the erstwhile Code of Criminal Procedure and the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Section 482 of the BNSS deals with direction for grant of bail to person apprehending arrest.
"It doesn't happen in any other state. Only in the Kerala High Court, we have noticed that regularly applications (for anticipatory bail) are being directly entertained," the bench had observed.
The top court's observation came while hearing a plea by two men challenging a Kerala High Court order rejecting their plea for anticipatory bail.
The bench noted in the case, the petitioners directly moved the high court for the relief without first going to the sessions court.
The high court was observed to have entertained such applications directly without the applicant approaching the sessions court that might result in proper facts not being placed on record which otherwise would have come before the sessions court.
"We are inclined to consider this aspect and decide the issue as to whether the option to approach the high court would be at the choice of the party or it should be mandatory that the accused should first approach the sessions court," the bench added.
It had issued notice on this aspect to the Kerala High Court, through its registrar general.
