One of the most important safeguards available to a person who apprehends arrest for a non-bailable offence is anticipatory bail. It is intended to protect an individual against the wrongful or unnecessary use of the power of arrest by enabling a person to seek a pre-arrest bail order. Where anticipatory bail is granted, the court may direct that, in the event of arrest, the applicant shall be released on bail, subject to the conditions imposed by the court.

The protection of personal liberty finds constitutional recognition under Article 21 of the Constitution of India. The statutory basis for anticipatory bail was earlier contained in Section 438 of the Code of Criminal Procedure, 1973 (CrPC). Following the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the corresponding provision is now contained in Section 482 of the BNSS for offences governed by the new criminal procedure framework.

The Court of Session is ordinarily the first forum approached by many applicants because of its accessibility and comparatively faster disposal. However, rejection of anticipatory bail by the Sessions Court does not necessarily bring the legal remedies of the applicant to an end. This raises several important questions, particularly following the transition from the CrPC to the BNSS and recent judicial pronouncements concerning the concurrent jurisdiction of the Sessions Court and the High Court.

Legal Issues Involved

Where an anticipatory bail application has been rejected by the Sessions Court, the following legal questions may arise:

Can the Applicant Approach the High Court After Rejection by the Sessions Court?

Whether an applicant whose anticipatory bail application has been rejected by the Sessions Court can subsequently approach the High Court under the same statutory provision seeking the same relief.

Can a Second Anticipatory Bail Application Be Filed Before the Same Sessions Court?

Whether a second application before the same Sessions Court is maintainable and, if so, what circumstances would justify such a subsequent application.

What Happens If the Supreme Court Has Also Considered the Matter?

Whether, after rejection of the anticipatory bail plea by the Supreme Court in proceedings arising from the extraordinary appellate jurisdiction, another challenge can be maintained before the Supreme Court.

What Remedy Is Available After Arrest?

What remedy is available where the applicant is arrested before obtaining anticipatory bail, or where the Sessions Court’s order is sought to be challenged on grounds such as jurisdictional error or perversity.

Applicable Legal Provisions

Section 482 of the BNSS, 2023

Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers both the Court of Session and the High Court to grant anticipatory bail.

The jurisdiction of these courts is concurrent. Therefore, rejection of an anticipatory bail application by the Sessions Court does not, in general, prevent the applicant from approaching the High Court for the same relief.

However, the position is different where an applicant first approaches the High Court and the application is rejected. In such circumstances, the applicant ordinarily cannot return to the Sessions Court seeking the same relief on the same grounds.

Second Application Before the Same Sessions Court

A second anticipatory bail application before the same Sessions Court may be considered where there has been a genuine and material change in the facts or circumstances after the earlier rejection.

Merely repeating the grounds that were already considered and rejected would generally not justify a successive application.

The principle concerning successive applications has been discussed in Sikander Singh v. State of Punjab, 2022 SCC OnLine P&H 3374, where the court held that a second anticipatory bail application before the same court cannot ordinarily be entertained after rejection on merits in the absence of new circumstances.

Remedy After Arrest

If the applicant is arrested before obtaining anticipatory bail, the remedy of anticipatory bail is no longer available for that arrest.

In such a situation, the applicant must seek regular bail under Section 483 of the BNSS, corresponding to the earlier Section 439 of the CrPC.

Judicial Analysis

Gurbaksh Singh Sibbia v. State of Punjab

The foundational judgment concerning anticipatory bail is Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.

The Supreme Court explained that the power to grant anticipatory bail is an important judicial power that must be exercised carefully and judiciously. The provision is intended to protect individual liberty while ensuring that the investigation is not improperly obstructed.

The judgment also clarified that anticipatory bail is a form of pre-arrest protection. Once the accused has been arrested, the appropriate remedy is to seek regular bail rather than anticipatory bail.

Sushila Aggarwal v. State (NCT of Delhi)

In Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, a Constitution Bench of the Supreme Court considered the duration of anticipatory bail.

The Court rejected the proposition that anticipatory bail must necessarily be limited to a fixed period and held that it may continue until the conclusion of the trial, subject to the circumstances of the case and any conditions imposed by the court.

The decision is significant because it clarifies the continuing nature of protection that may be granted through anticipatory bail and the circumstances in which such protection may operate.

Jagdeo Prasad v. State of Bihar

In Jagdeo Prasad v. State of Bihar, 2025 SCC OnLine SC 2108, the Supreme Court reaffirmed the concurrent jurisdiction of the Sessions Court and the High Court in matters concerning anticipatory bail.

The judgment also recognised the importance of approaching the Sessions Court before invoking the jurisdiction of the High Court in the ordinary course. At the same time, the High Court retains its concurrent jurisdiction and may consider an application following rejection by the Sessions Court.

The decision also needs to be considered alongside the principle governing successive applications before the same forum, particularly where there has been no genuine change in circumstances.

What Can an Applicant Do After Rejection of Anticipatory Bail by the Sessions Court?

The rejection of anticipatory bail by the Sessions Court does not necessarily mean that the applicant has exhausted all available remedies.

The principal legal options may include the following:

Approach the High Court

Since the Sessions Court and High Court possess concurrent jurisdiction under Section 482 of the BNSS, an applicant whose anticipatory bail application has been rejected by the Sessions Court may approach the High Court seeking pre-arrest protection.

The High Court may independently consider the application in accordance with the facts and circumstances of the case.

File a Subsequent Application Before the Sessions Court in Changed Circumstances

A fresh application before the same Sessions Court may be considered where there has been a genuine change in circumstances after the earlier rejection.

A mere repetition of the grounds already considered by the court would generally not provide a proper basis for a successive application.

Seek Regular Bail After Arrest

If the applicant is arrested before anticipatory bail is granted, the applicant should seek regular bail under Section 483 of the BNSS.

Anticipatory bail is a pre-arrest remedy and therefore cannot ordinarily be invoked after the arrest has taken place.

Approach the Supreme Court in Appropriate Cases

Where the High Court has rejected an anticipatory bail application, an applicant may, in an appropriate case, invoke the Supreme Court’s jurisdiction under Article 136 of the Constitution of India through a Special Leave Petition.

However, the extraordinary and discretionary nature of this jurisdiction means that the circumstances of the case and the nature of the challenge to the impugned order are important considerations.

In exceptional situations involving a patently perverse or jurisdictionally unsound order, constitutional remedies may also become relevant.

Concurrent Jurisdiction of the Sessions Court and High Court

One of the most important aspects of the present legal framework is the concurrent jurisdiction of the Sessions Court and the High Court under Section 482 of the BNSS.

The expression “concurrent jurisdiction” means that both courts possess the statutory power to consider an application for anticipatory bail.

However, this does not mean that an applicant can repeatedly approach different courts with identical applications without regard to the orders already passed.

The procedural history of the case, the reasons for earlier rejection, the existence of changed circumstances, and the nature of the challenge are all relevant.

The general position emerging from the authorities referred to above may therefore be understood as follows:

Reasoned Legal Position

On the basis of the statutory framework and judicial authorities discussed above, rejection of anticipatory bail by the Sessions Court does not automatically prevent the applicant from seeking relief from the High Court.

The concurrent jurisdiction under Section 482 of the BNSS allows the High Court to consider an anticipatory bail application even after rejection by the Sessions Court.

However, filing repeated applications before the same Sessions Court on identical facts and grounds, without any genuine change in circumstances, may amount to an abuse of the process of the court.

Where circumstances have materially changed after the first rejection, a subsequent application may be considered on its own merits.

If the applicant is arrested before anticipatory bail is granted, the appropriate course is to seek regular bail under Section 483 of the BNSS, rather than continuing to pursue anticipatory bail for an arrest that has already taken place.

In appropriate cases, an applicant may also consider approaching the Supreme Court under Article 136 of the Constitution, particularly where the challenge raises serious legal issues or the impugned order suffers from a manifest legal error.

Conclusion

Rejection of anticipatory bail by the Sessions Court is not necessarily the end of the legal remedy available to an applicant. The statutory framework under Section 482 of the BNSS provides concurrent jurisdiction to the Sessions Court and the High Court. Consequently, an applicant whose anticipatory bail application has been rejected by the Sessions Court may, subject to the circumstances of the case, approach the High Court for appropriate relief.

At the same time, repeated applications before the same court on identical grounds should not be treated as an alternative to challenging the earlier order before the appropriate higher forum. A genuine change in circumstances may, however, provide a basis for a subsequent application. If the applicant is arrested in the meantime, the legal remedy changes from anticipatory bail to regular bail.

Ultimately, the appropriate course depends on the procedural history of the case, the reasons for rejection, whether circumstances have changed, and whether the applicant has already been arrested. The protection of personal liberty under Article 21 of the Constitution remains an important consideration, while the courts must simultaneously ensure that the criminal investigation and judicial process are not improperly obstructed.