Case Background
This case arises from Samastipur Town P.S. Case No. 215 of 2024, Samastipur district. The police case has been registered under Sections 126(2), 115(2), 338, 339, 340(2), 344, 61(2), 308(5) and 3(5) of the Bharatiya Nyaya Sanhita (B.N.S.).
According to the complaint, the accused persons are alleged to have committed a fraudulent act of transferring the informant’s property to some other accused persons by using a forged registered sale deed.
On this background, seven persons, all related or connected to each other, approached the Patna High Court. They feared arrest in this criminal case and wanted protection in the form of anticipatory bail.
Instead of first filing for anticipatory bail before the Court of Sessions at Samastipur, they directly filed Criminal Miscellaneous No. 14855 of 2025 before the Patna High Court under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (B.N.S.S.), which corresponds to Section 438 of the old Code of Criminal Procedure (Cr.P.C.).
The State of Bihar and the informant opposed this direct approach. They raised a preliminary objection that the petitioners should have first gone to the Sessions Court, which also has power to grant anticipatory bail.
What the Court Examined and Decided
The Patna High Court, through Hon’ble Justice Smt. Soni Shrivastava, first chose to deal with the legal question: can a person come directly to the High Court for anticipatory bail, or must they go to the Sessions Court first?
The petitioners’ senior counsel argued that High Courts and Sessions Courts have “concurrent jurisdiction” under Section 438 Cr.P.C./Section 482 B.N.S.S. This means both courts have the same power to grant anticipatory bail. On that basis, he said, a person can choose either forum, so their direct approach to the High Court was fully legal and should be entertained.
To support this, he cited several judgments from different courts. The Court carefully went through these judgments and also examined another line of cases which take a different, more restrictive approach.
Cases relied upon by the petitioners
The petitioners placed strong reliance on the Supreme Court decision in Barun Chandra Thakur vs. CBI, reported in AIR 2017 SC 5735 (also reported in 2018 (12) SCC 119). In that matter, related to the sensational murder of a 7-year-old child in a school premises, there was huge media coverage and even a bar association resolution that no lawyer would appear for the accused.
The Supreme Court noted these special circumstances. It observed that, in such a climate of “trial by media” and professional boycott, the accused had directly approached the High Court for anticipatory/interim bail under Section 438 Cr.P.C., and since the High Court had concurrent jurisdiction, this direct approach could not be faulted.
The petitioners also cited a Delhi High Court order dated 9 June 2023 in Pankaj Bansal vs. State (Government of NCT of Delhi), Bail Application No. 2031 of 2023. That case arose under the Prevention of Money Laundering Act (P.M.L.A.), with multiple FIRs registered. The Delhi High Court discussed several judgments and held that Section 438(1) Cr.P.C. gives concurrent jurisdiction to both the Sessions Court and the High Court, and there is no express bar against coming directly to the High Court for anticipatory bail.
Another reliance was on an order dated 02.11.2018 of the Uttarakhand High Court in Mubarik & Anr. vs. State of Uttarakhand & Ors., Criminal Writ Petition No. 2059 of 2018. There, relying on Barun Chandra Thakur, it was held that the High Court and Sessions Court have concurrent jurisdiction under Section 438 Cr.P.C., and it is for the accused to choose the forum. The provision could not be read narrowly to restrict that choice.
The petitioners tried to use these judgments to argue that the Patna High Court must entertain their anticipatory bail application on merits, even if they had not approached the Sessions Court.
Contrary judicial views examined by the Court
The Patna High Court then turned to another group of judgments from various High Courts which, while accepting concurrent jurisdiction in theory, insist that normally the Sessions Court should be approached first. Direct approach to the High Court should be reserved for “special” or “extraordinary” circumstances.
The Court first discussed the single-judge decision of the Allahabad High Court in Harendra Singh vs. State of U.P., 2019 SCC Online All. 4571. That judgment held that an application for anticipatory bail is not ordinarily maintainable in the High Court without first exhausting the remedy before the Sessions Court. However, for special reasons, the High Court can still exercise this power. One reason given was that when the matter first goes to the lower court, the higher court gets the benefit of a factual foundation.
Then the Court discussed the subsequent Allahabad High Court decision in Vinod Kumar vs. State of U.P. and another, 2019 SCC Online All. 4821. That Court agreed fully with Harendra Singh and referred to an older Full Bench decision in Onkar Nath Agrawal and others vs. State, 1976 Cri LJ 1142. The Full Bench had said that there is no legal bar on directly approaching the High Court, but the High Court should exercise discretion to entertain such petitions only when there are special circumstances justifying a direct approach.
In Vinod Kumar, the Court concluded that there must be “strong, cogent, compelling and special circumstances” for an accused to approach the High Court directly for anticipatory bail. This view was later upheld by a five-judge Bench of the Allahabad High Court in Ankit Bharti vs. State of U.P. and another (with analogous cases), reported in 2020 SCC Online All. 1949. The larger Bench emphasized that, though no fixed list of circumstances can be framed, the presence of special circumstances is essential before the High Court exercises its jurisdiction at the first instance.
The Patna High Court also noted similar views from other High Courts:
- Madhya Pradesh High Court in Dainy @ Raju vs. State of M.P., 1989 J.L.J. 232, and Manisha Neema vs. State of M.P. (2003) 2 Crimes 402, held that anticipatory bail should first be sought before the Sessions Court, and only after rejection should the High Court be moved.
- Punjab & Haryana High Court in Chajju Ram Godara vs. State of Haryana, 1978 Cri LJ 608, held that generally the Sessions Court should be approached first and direct approach to the High Court requires adequate reasons.
- Rajasthan High Court in Hajialisher vs. State of Rajasthan, 1976 Cri LJ 1658 (Raj), spoke about the desirability of first moving the lower court and reserving direct High Court intervention for extraordinary or special circumstances.
- Gujarat High Court in Rameshchandra Kashiram Vora vs. State of Gujarat, 1988 Cri LJ 210 (Guj), held that only exceptional cases or special circumstances justify direct filing in the High Court.
- Karnataka High Court in K.C. Iyya vs. State of Karnataka, 1985 Cri LJ 214 (Kant), also held that first approaching the Sessions Court serves the interest and administration of justice.
Existing Patna High Court line of reasoning
The Court then considered its own earlier decisions. In Meena Devi and another vs. State of Bihar, 1985 PLJR 596, the Patna High Court had held that a person apprehending arrest may move either the High Court or the Sessions Court. The High Court cannot reject an application only because the Sessions Court has not been approached.
However, Meena Devi also clarified that while hearing such an application, the High Court may come to the conclusion that the petitioner ought to have first gone to the Sessions Judge.
This approach was followed in Md. Shohrab Ali @ Sohrab and another vs. State of Bihar, 2009 (2) PLJR 301. There, the Patna High Court, after considering the facts, directed the petitioners to first move the Sessions Judge/Special Judge for anticipatory bail before coming to the High Court.
The Court also noted that a similar issue is pending before the Supreme Court in Gauhati Bar Association vs. State of Assam and others, Criminal Appeal No. 1562 of 2017. The Supreme Court has impleaded the Union of India and kept the matter pending due to its wide importance, but no final judgment has been delivered yet.
Interpretation of Section 482 B.N.S.S. / Section 438 Cr.P.C.
The Patna High Court quoted Section 482 B.N.S.S., which is the new counterpart of Section 438 Cr.P.C. It allows any person who has reason to believe that he may be arrested on accusation of a non-bailable offence to apply to “the High Court or the Court of Session” for anticipatory bail.
From all the judgments discussed, the Court drew a clear conclusion: there is no doubt that both the High Court and the Sessions Court have concurrent jurisdiction. In other words, legally, a person is allowed to move either court.
Therefore, the Court held, as a matter of law, that there is no bar on filing an anticipatory bail application directly before the High Court under Section 438 Cr.P.C. / Section 482 B.N.S.S.
However, the Court went further and explained the “practice and propriety” aspect. While concurrent jurisdiction exists, it would normally be proper, and in the interest of justice, that an accused first approaches the Sessions Court. Only after exhausting that remedy should the High Court be moved, unless there are special or extraordinary circumstances.
The Court gave several reasons for this approach:
- Long-standing practice in Bihar and many other states is to first move the Sessions Court, which has worked well.
- When the matter reaches the High Court after an order from the Sessions Court, some basic facts and the stage of investigation are already on record, making adjudication smoother.
- Requiring first approach to Sessions Court avoids overburdening the High Court with large numbers of first-instance applications.
- If a person first comes to the High Court and is rejected on merits, it would be against judicial discipline for the Sessions Court to grant relief later on the same facts, effectively depriving the person of a second look by another forum.
Taking a “holistic view”, the Court concluded that though a citizen’s right to liberty under Article 21 is paramount and concurrent jurisdiction is clear, practice and propriety demand that for direct approach to the High Court, “special or extraordinary circumstances” must be shown.
These circumstances must show that going to the Sessions Court was either not possible or would have been very difficult or burdensome for concrete, substantial reasons. Whether such reasons exist in any given case is to be decided by the judge using judicial discretion and wisdom.
Application of law to the present case
When the Court applied this test to the present facts, it found that the seven petitioners had directly approached the High Court in a case about alleged fraudulent transfer of property by a forged sale deed. They did not first go to the Sessions Court.
The Court examined their anticipatory bail application to see whether they had shown any special or extraordinary reason for bypassing the Sessions Court. It found none. At best, there were some vague mentions, but nothing concrete or convincing.
In fact, when the Court directly asked the petitioners’ counsel about any special circumstances, he candidly answered that they had come to the High Court only because they chose to do so, relying on the idea of concurrent jurisdiction. No additional hardship, urgency, or inability to approach the Sessions Court was shown.
Taking this into account, the Court held that while the petition was maintainable in law, the petitioners had not justified their direct approach. Therefore, without entering into the merits of the allegations or evidence, the Court refused to grant anticipatory bail.
Instead, the Court dismissed the application but granted liberty to the petitioners to first approach the Sessions Court for anticipatory bail. After they exhaust that remedy, they would be free to come back to the High Court if needed.
Why This Judgment Matters
This judgment is important for anyone in Bihar who fears arrest and is thinking of applying for anticipatory bail.
The Patna High Court has clearly said that, although the law allows you to move either the Sessions Court or the High Court, you should usually go to the Sessions Court first. Direct filing in the High Court will be entertained only when you have solid, special reasons that you can clearly explain in your petition.
For accused persons in property disputes, financial cases, or any non-bailable offence, this means that simply preferring the High Court is not enough. You must either follow the normal route of starting at the Sessions Court or be able to show why this route is practically not open or is too difficult in your specific situation.
The decision also protects the High Court’s time, ensures better factual records when matters reach it, and prevents a situation where a person loses a second chance of relief by approaching the High Court first and being rejected on merits.
In short, the judgment reinforces a disciplined, two-tier approach to anticipatory bail, while keeping the door open for genuine emergencies and unusual situations to be considered directly by the Patna High Court.
Legal Issues and Answers
- Issue: Can an accused person directly approach the Patna High Court for anticipatory bail under Section 482 B.N.S.S. (corresponding to Section 438 Cr.P.C.) without first approaching the Sessions Court?
Answer: Yes, the petition is legally maintainable because the High Court and Sessions Court have concurrent jurisdiction. However, as a matter of practice and propriety, the accused should ordinarily first move the Sessions Court and approach the High Court directly only when special or extraordinary circumstances justify bypassing the Sessions Court. - Issue: Did the seven petitioners in this case show any special or extraordinary reasons for directly approaching the Patna High Court for anticipatory bail?
Answer: No. The Court found no clear special or extraordinary circumstances in their application. Their only justification was their choice based on concurrent jurisdiction, which the Court held to be insufficient. - Issue: What relief was granted to the petitioners in light of this finding?
Answer: The High Court declined to consider the merits of their anticipatory bail plea and dismissed the application, but granted liberty to the petitioners to first approach the Sessions Court. After exhausting that remedy, they may then approach the High Court again, if necessary.
Cases Cited by the Court
- Barun Chandra Thakur vs. CBI, AIR 2017 SC 5735 / 2018 (12) SCC 119 (Supreme Court of India)
- Pankaj Bansal vs. State (Government of NCT of Delhi), Bail Application No. 2031 of 2023, order dated 09.06.2023 (Delhi High Court)
- Mubarik & Anr. vs. State of Uttarakhand & Ors, Criminal Writ Petition No. 2059 of 2018, order dated 02.11.2018 (Uttarakhand High Court)
- Harendra Singh vs. State of U.P., 2019 SCC Online All. 4571 (Allahabad High Court)
- Vinod Kumar vs. State of U.P. and another, 2019 SCC Online All. 4821 (Allahabad High Court)
- Onkar Nath Agrawal and others vs. State, 1976 Cri LJ 1142 (Allahabad High Court, Full Bench)
- Ankit Bharti vs. State of U.P. and another with analogous cases, 2020 SCC Online All. 1949 (Allahabad High Court, five-judge Bench)
- Dainy @ Raju vs. State of M.P., 1989 J.L.J. 232 (Madhya Pradesh High Court)
- Manisha Neema vs. State of M.P., (2003) 2 Crimes 402 (Madhya Pradesh High Court)
- Chajju Ram Godara vs. State of Haryana, 1978 Cri LJ 608 (Punjab & Haryana High Court)
- Hajialisher vs. State of Rajasthan, 1976 Cri LJ 1658 (Rajasthan High Court)
- Rameshchandra Kashiram Vora vs. State of Gujarat, 1988 Cri LJ 210 (Gujarat High Court)
- K.C. Iyya vs. State of Karnataka, 1985 Cri LJ 214 (Karnataka High Court)
- Meena Devi and another vs. State of Bihar, 1985 PLJR 596 (Patna High Court)
- Md. Shohrab Ali @ Sohrab and another vs. State of Bihar, 2009 (2) PLJR 301 (Patna High Court)
- Gauhati Bar Association vs. State of Assam and others, Criminal Appeal No. 1562 of 2017 (pending before Supreme Court of India)
Case Details
Case Number: Criminal Miscellaneous No. 14855 of 2025
Arising out of: Samastipur Town P.S. Case No. 215 of 2024, District Samastipur
Case Title: Nirmala Devi @ Nimala Devi & Ors vs. The State of Bihar
Coram: Hon’ble Justice Smt. Soni Shrivastava
Citation: 2025 (3) PLJR 680
Date of Judgment: 18-07-2025
Nature of the Case: Petition under Section 482 B.N.S.S. (corresponding to Section 438 Cr.P.C.) seeking anticipatory bail in a criminal case concerning alleged fraudulent transfer of property by forged sale deed
Offences Invoked (B.N.S.): Sections 126(2), 115(2), 338, 339, 340(2), 344, 61(2), 308(5) and 3(5) of the Bharatiya Nyaya Sanhita
Advocates:
- For the Petitioners: Mr. N.K. Agrawal, Senior Advocate; Mr. Abhijeet Abhigyan, Advocate
- For the Informant: Mr. Piyush Kumar Pandey, Advocate; Mrs. Aditi Shahi, Advocate
- For the State: Mr. Madan Kumar, APP
Link to Judgment: Click here to view the official Patna High Court judgment
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