IN THE HIGH COURT AT CALCUTTA Circuit Bench at Jalpaiguri Criminal Miscellaneous Jurisdiction 08.07.2026 Item No. 09 Ct. No. 5 C.R.M. (A) 395 of 2026 Sayan In Re:- An application for anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023. In the matter of : Lata Ghosh @ Lota Singha … petitioner. Mr. Subham Ghosh Mr. Mayank Roy …for the petitioner. Mr. Avrojyoti Das, ld. APP Mr. Raj Kumar Mishra Mr. Atul Dong …for the State. 1. The petitioner is anticipating arrest in connection with Khairibari Police Station Case No. 202 of 2026 dated 4.6.2026 under section 21 (c )/29 of the NDPS Act 1985 corresponding to CR (NDPS) Case No. 73 of 2026, pending before the learned Special Judge (NDPS) cum Additional Sessions Judge 2nd Court at Siliguri and has filed the instant application for anticipatory bail under section 482 of the BNSS 2023, directly before this Court without exhausting similar remedy before the learned Additional Sessions Judge. 2. In this regard the State has raised objection in view of the order of the Supreme Court dated September 8, 2025, in Mohammed Rasal C. & Another versus State of Kerala & Another [reported at 2025 SCC OnLine SC 2728]. 3. The findings of the Court in the said order is as follows and on the said issue, the matter has been referred to a Three Judge’s Bench of the Supreme Court. 2 “6. We find that in this case, the petitioners had approached the High Court directly for pre-arrest bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023(for short, „BNSS‟), without first approaching the Sessions Court for the said relief. We are of the opinion that though the concurrent jurisdiction is conferred upon the Sessions Court and the High Court to entertain a prayer for pre-arrest bail under Section 482 of the BNSS (formerly, Section 438 CrPC), the hierarchy of Courts demands that no person seeking such remedy should be encouraged or allowed to directly approach the High Court for exercising jurisdiction under Section 482 of the BNSS (formerly, Section 438 CrPC) by bypassing the jurisdiction of the concerned Sessions Court. 7. The Sessions Judge exercises powers under Section 438 CrPC in relation to all cases registered with the police stations in the particular District. This area-wise distribution of work would make it much more convenient and facilitate expeditious disposal, if the application for pre-arrest bail is first filed before the Sessions Court which would have a direct and first-hand assistance of the concerned Public Prosecutor appointed for that particular District. The Sessions Court would also have an immediate access to the Case Diary thereby facilitating a better appreciation of facts of the case. 8. We further feel that if the practice of entertaining the applications for pre-arrest bail directly in the High Court is encouraged, and the parties concerned are not relegated to first approach the Sessions Court concerned, the High Court would be flooded with a spate of pre-arrest bail applications thereby creating a chaotic situation. We say so, because if the parties are required to approach the Sessions Court concerned for seeking remedy of pre-arrest bail, there is a strong probability that significant number of applications would be allowed at that level only thereby acting as a filtration process before the process reaches the High Court. 9. It is trite that in most of the States, there is a consistent practice requiring the litigant concerned to first approach the Sessions Court for seeking relief of pre-arrest bail and only in the event of denial of such relief, the litigant would be granted access to approach the High Court for seeking such relief. This is, of course, subject to just exceptions and the High Court, for reasons to be recorded, may entertain an application for pre- arrest bail directly in special/extra-ordinary circumstances.” 3 4. As regards the preliminary point of maintainability of this application, the State has contended that since the petitioner has admittedly filed the instant application in this Court directly, without exhausting similar remedy before the learned Sessions Judge, she may be relegated to the learned Sessions Court to pray for anticipatory bail there, before she comes to this Court with such a prayer. Mr. Das learned APP has emphasized that the petitioner cannot move her anticipatory bail prayer directly before this Court at the first instance, in view of decision of the Supreme Court in case of Mohammed Rasal C. (supra), as mentioned above. 5. Mr. Ghosh has represented the petitioner and has put forth strong objection as to such preliminary issue of maintainability, raised by the State. He has contended that in view of the fact that the order of the Supreme Court dated September 8, 2025 has been referred to the Larger Bench of the Court, the position of law stands, as it was prior to the date of the said order. He further submits that the Courts have all along upheld the position of law to be that in the matter of anticipatory bail, the High Court has concurrent jurisdiction with that of the Sessions Court. He also refers to the BNSS 2023 as well as the CrPC [now repealed], to submit that the language of the relevant provision in both the statutes unequivocally suggest about such concurrent jurisdiction of the High Court and the Sessions Court in the matter of anticipatory bail. 6. Mr. Ghosh has referred to the judgment of Supreme Court in Union Territory of Ladakh & Others versus Jammu and Kashmir National Conference and Another reported at 2024 (18) SCC 643, in order to relay on the proposition laid down therein that the High 4 Court cannot refuse to follow a judgment by stating that it has been doubted by a later coordinate Bench and in case of conflicting judgments by Benches of Supreme Court, it is the earlier one which is to be followed by the High Courts. The other judgment of Supreme Court in Manjeet Singh versus State of Uttar Pradesh reported at 2025 SCC OnLine SC 3058 Has been referred to in which the Court by relying on Kanumuri Raghurama Krishnam Raju versus State of Andhra Pradesh and Others reported at (2021) 13 SCC 822 and Arvind Kejriwal versus Directorate of Enforcement reported at 2025 2 SCC 248, the two earlier judgments has held that the position is clear that it would not be necessary for an accused to approach the Sessions Court in the first instance, as a rule, before approaching the High Court. 7. The following three judgments have also been referred to by Mr. Ghosh learned advocate for the petitioner in support of his argument as discussed: a. Barun Chandra Thakur versus Central Bureau of Investigation and Others reported at 2018 (12) SCC 119 b. Rajesh Kumar Singh versus The State of Bihar reported at 2025(2) Crimes 561 c. Mohan Lal versus Prem Chand and Others reported at 1980 SCC OnLine HP 36 8. In response Mr. Das learned APP has submitted only a “special circumstance”, which is existent and stands duly established, can prompt the High Court to directly take up the petitioner’s application for anticipatory bail. In this regard Mr. Das has also relied on the judgment of Manjeet Singh (supra). Also, he has all along been 5 relying on the order in Mohammed Rasal C. (supra) to submit that the Court has categorically upheld it to be trite that the litigant approaches the Sessions Court first to seek relief of pre-arrest bail and only in the event of denial of such relief the litigant would be granted access to approach the High Court for seeking such relief. 9. Having considered the rival submissions, this Court is of the opinion that the controversy before it is not with regard to the existence of jurisdiction of this Court under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, but with regard to the propriety of exercise of such jurisdiction at the first instance. The statutory provision undoubtedly confers concurrent jurisdiction upon the Court of Sessions and the High Court to entertain an application for anticipatory bail. Equally true it is that the earlier decisions of the Supreme Court, as noticed by the learned advocate for the petitioner, have recognised that there is no absolute legal bar preventing an accused from approaching the High Court directly. The judgments relied upon by the petitioner, therefore, correctly explain the width of the statutory jurisdiction.At the same time, conferment of concurrent jurisdiction does not necessarily imply that both forums are to be approached interchangeably as a matter of routine. Every concurrent jurisdiction carries with it well-recognised principles regulating its orderly exercise. Judicial discretion is not exercised in isolation from institutional discipline. The existence of jurisdiction and the desirability of exercising such jurisdiction at the first instance are conceptually distinct considerations. While the former concerns the source of power, the latter concerns the manner of its exercise. 6 10. This distinction assumes greater significance in the present case in view of the order passed by the Supreme Court in Mohammed Rasal C. (supra) wherein the Supreme Court has observed that ordinarily an accused should first approach the Court of Sessions before invoking the jurisdiction of the High Court and that departure from such course must be founded upon special circumstances. Although the correctness of the said view has subsequently been referred to a larger Bench, the order has neither been stayed nor set aside. The reference itself does not efface the persuasive value of the reasons recorded therein nor does it render the observations contained therein non-existent. It only postpones the final authoritative pronouncement on the issue. 11. Reliance placed by the petitioner upon the decision in Jammu and Kashmir National Conference (supra) also does not carry the matter any further. The principle laid down therein is that a High Court cannot refuse to follow a binding precedent merely because its correctness has been doubted by a coordinate Bench. In the present case, this Court is not declining to follow any binding precedent. Rather, this Court is required to decide whether, in exercise of its own discretionary jurisdiction under Section 482 of the BNSS, it should entertain the application directly or require the petitioner to avail the equally efficacious statutory remedy before the Court of Sessions. The issue, therefore, is one of judicial discretion and procedural propriety rather than one of absence of jurisdiction.Significantly, even the judgment relied upon by the learned advocate for the petitioner in Manjeet Singh (supra), while reiterating that there is no inflexible rule compelling an accused to invariably approach the Sessions Court first, 7 nevertheless recognises that direct invocation of the High Court's jurisdiction may be justified where special circumstances exist. The inevitable corollary is that where no such exceptional circumstance is either pleaded or established, the ordinary statutory course should ordinarily be followed. 12. In the present case, this Court finds no exceptional circumstance warranting bypassing the Court of Sessions. The petitioner has not demonstrated any circumstance giving rise to a reasonable apprehension that the learned Special Judge or the learned Sessions Court would be unable to consider the application independently, impartially or expeditiously. There is no allegation of institutional bias, absence of jurisdiction, imminent frustration of the statutory remedy or any extraordinary factual situation requiring immediate intervention of this Court in the first instance. Mere apprehension of arrest, howsoever genuine, constitutes the very foundation of an application for anticipatory bail and cannot, by itself, be elevated to a special circumstance so as to justify overlooking the ordinary forum specifically empowered by statute to grant identical relief.It is also not without significance that the present prosecution arises under Section 21(c) read with Section 29 of the NDPS Act involving serious allegations attracting the rigours of the special statute. The Court of Sessions is statutorily vested with concurrent authority to examine all questions of fact and law, including the applicability of the embargo contained in the NDPS Act and the maintainability of the prayer for anticipatory bail. Entertaining such applications directly in every case would substantially dilute the legislative scheme of concurrent jurisdiction by rendering the jurisdiction of 8 the Sessions Court largely redundant, a consequence which the law does not contemplate. 13. This Court is, therefore, of the considered view that relegating the petitioner to the Court of Sessions would neither result in denial of justice nor cause any prejudice to the petitioner. On the contrary, it would preserve the statutory hierarchy, permit the competent Court of first instance to exercise the jurisdiction expressly vested in it and, if occasion so arises thereafter, leave open the petitioner's right to seek appropriate relief before this Court in accordance with law. Such an approach harmonises the earlier decisions recognising concurrent jurisdiction with the judicial discipline emphasised in Mohammed Rasal C. (supra)and the observations made in Manjeet Singh (supra), without prejudging the issue presently awaiting authoritative determination by the larger Bench of the Supreme Court. 14. Accordingly, let the instant application be treated as withdrawn by the petitioner with liberty to file the same afresh before the learned Court with appropriate jurisdiction. 15. No coercive step shall be taken against the petitioner till the time the Court with appropriate jurisdiction finally disposes of the petitioner’s application for anticipatory bail in accordance with law. (Rai Chattopadhyay, J.)