The Supreme Court has reserved judgment on whether petitioners can directly approach the High Court for anticipatory bail, bypassing the Sessions Court. The case arose from a Kerala High Court order granting pre-arrest bail to petitioners who had not first moved the Sessions Court. The question before the Supreme Court is whether Section 438 CrPC (Section 482 BNSS) permits this direct approach or mandates a hierarchy of courts to be followed before the High Court can be approached.

Anticipatory bail under Section 438 of CrPC (now Section 482 of BNSS) allows a person who apprehends arrest for a non-bailable offence to seek pre-arrest bail. The provision explicitly names both the Sessions Court and the High Court as competent forums. The legal ambiguity: does this mean an applicant can choose either forum, or is there an implicit hierarchy requiring the Sessions Court to be approached first?

The prevailing practice, supported by judgments like Gurbaksh Singh Sibbia v. State of Punjab (1980), treats Section 438 as conferring concurrent jurisdiction on both courts. However, several High Courts, including Kerala, have granted anticipatory bail directly without requiring prior Sessions Court application. The opposing view holds that the High Court, being a superior court, should ordinarily be approached only after the Sessions Court declines relief — a principle of judicial economy and hierarchy.

This matters because the BNSS (which replaced CrPC from July 1, 2024) retains the same dual-forum structure under Section 482. The Supreme Court's ruling will determine whether bypassing the Sessions Court is a procedural irregularity that vitiates the bail order, or a permissible exercise of jurisdiction. For CLAT PG aspirants, the core concept is concurrent versus hierarchical jurisdiction in bail matters, and the constitutional underpinning of personal liberty under Article 21 that governs how courts interpret bail provisions.