Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — the successor to Section 438 CrPC — empowers both the Court of Session and the High Court to grant anticipatory bail. The jurisdiction is concurrent: the text imposes no rule that one court must be approached before the other. Yet every practitioner knows that the choice of forum is among the most consequential decisions in an anticipatory bail matter. This explainer sets out the legal position on concurrency, the settled practice in Delhi, the situations that justify moving the High Court directly, and the strategic cost of each route.
Concurrent by text, sequential by practice
The words of Section 482(1) BNSS are symmetrical: a person apprehending arrest for a non-bailable offence "may apply to the High Court or the Court of Session" for a direction that in the event of arrest he shall be released on bail. Nothing in the section makes the Sessions Court a compulsory first stop. The sequencing rule is judge-made prudence: the Sessions Court is closer to the record and the police file, its consideration produces a reasoned order that assists the High Court if the matter travels up, and reserving the High Court as the second forum preserves one full remedy if the first fails. Delhi practice follows this pattern, and a direct High Court petition without disclosed special circumstances risks being returned to the district forum — with days lost.
The two routes compared
Sessions Court first
- Faster listing in urgent cases; interim protection possible at the first hearing
- Preserves the High Court as an untouched second forum
- Status report from the investigating officer obtained at district level
- Cost- and logistics-efficient for the client
High Court directly
- Justified by special circumstances, specifically pleaded
- Appropriate where the point is one of law or of parity with orders already passed by the High Court
- Single-forum exposure: if rejected, the next step is the Supreme Court
- Interim protection, where granted, carries High Court weight with the police
What the first application must get right
Because the Sessions Court application frames the record for everything that follows, it deserves the discipline of a final hearing brief. It should state the FIR particulars and the provisions invoked (with IPC/BNS equivalence where the occurrence straddles 1 July 2024), the applicant's version of the transaction, the basis of the apprehension of arrest, antecedents, roots in society, and the willingness to abide by conditions — joining the investigation, not contacting witnesses, not leaving the country without leave. Concealment is fatal twice over: it invites rejection below and destroys credibility above.
After rejection: the second application
Points of caution
- Do not file in both courts simultaneously; parallel applications for the same relief invite dismissal and worse.
- Disclose every earlier application and its fate — in the synopsis, not a footnote.
- Forum choice cannot cure a weak case: the merits framework (gravity, role, custodial interrogation need) is identical in both courts.
- Remember the statutory exclusions and special regimes that qualify anticipatory bail in certain categories of offences; the forum question arises only where the remedy itself is available.
Practice note: In Delhi, anticipatory bail applications before the Sessions Court are listed before the designated vacation or duty courts even during breaks, and urgent mentioning is available in genuine emergencies in both forums. The choice of forum should be made once, deliberately, at the start — changing horses midstream is the one strategy that reliably fails.
Frequently Asked Questions
Is there a legal bar to filing anticipatory bail directly in the High Court?
No statutory bar. Section 482 BNSS confers the power on the High Court and the Court of Session without a hierarchy. However, High Courts — Delhi included — ordinarily expect the Sessions Court to be approached first, and may decline to entertain a direct petition absent special circumstances, relegating the applicant to the Sessions Court.
What are good reasons to approach the High Court directly?
Recognised examples include: apprehension of immediate arrest leaving no realistic time for two rounds; the matter involving persons or circumstances connected with the district judiciary in question; a pure question of law already settled by the High Court; multiple FIRs across districts; or earlier connected proceedings already pending in the High Court. The special circumstances should be pleaded specifically in the petition.
If the Sessions Court rejects the application, can the High Court be approached?
Yes. Rejection by the Sessions Court does not bar a fresh application to the High Court under Section 482 BNSS — it is the normal second step, not an appeal. The High Court considers the matter afresh, though it will have the Sessions Court's reasoning before it, which is precisely why the first application must be prepared with full seriousness.
Does filing in the Sessions Court first waste time if arrest is imminent?
Not necessarily. Sessions Courts in Delhi routinely take up urgent anticipatory bail applications quickly, call for status reports within days, and can grant interim protection under Section 482 while the application is considered. An accused genuinely facing imminent arrest should seek interim protection at the first listing in whichever forum is chosen.