Liberty Vs Hierarchy: The Debate On Direct Anticipatory Bail Pleas Before High Courts

The Supreme Court has recently criticized the High Court of Kerala for entertaining applications for anticipatory bail which are directly moved before it, without approaching the Sessions Court first.

The Supreme Court Bench comprising Justices Vikram Nath and Sandeep Mehta observed that though the concurrent jurisdiction is conferred upon the Sessions Court and the High Court to entertain a prayer for pre-arrest bail (Anticipatory 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, by bypassing the jurisdiction of the concerned Sessions Court.

The Bench also held that in most of the States, there is a consistent practice requiring the litigant 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. 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.

The Bench has issued notice to the Registrar of the Kerala High Court, and appointed Senior Advocate Sidharth Luthra as Amicus Curiae in the case.

The Constitution Bench of the Supreme Court in Gurbaksh Singh Sibbia Etc vs State Of Punjab (1980) 2 SCC 565 observed that Section 438(1) CrPC is to be interpreted in light of Article 21 of the Constitution of India. In order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable.

In Gurbaksh Singh Sibbia [Supra] it has been held by the Supreme Court that the courts should not impose restrictions on the ambit and scope of Section 438 CrPC, which are not envisaged by the legislature. The Court cannot rewrite the provision of the statute in the garb of interpreting it.

“We find a great deal of substance in Mr Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248], that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein”.[Para-26]

In Siddharam Satlingappa Mhetre v. State of Maharashtra 2011 (1) SCC 694, a two judge Bench of the Supreme Court comprising Justices Dalveer Bhandari and K.S. Panicker Radhakrishnan observed that the restriction on the provision of anticipatory bail under Section 438 CrPC limits the personal liberty of the accused granted under Article 21 of the Constitution.

Supreme Court Cases

In 2017, a Supreme Court bench of Justices J.Chelameswar and Amitava Roy, granted leave on an appeal filed by the Gauhati High Court Bar Association against the judgment of the Gauhati High Court's Division Bench which held that it is necessary that normally a person/accused should file an anticipatory bail application under Section 438 of the CrPC or a bail application under Section 439 of the CrPC before the Sessions Court and thereafter he can approach the High Court. However, this is not an inviolable rule. In exceptional circumstances a person/accused can directly approach the High Court. The Supreme Court also stayed the operation of the High Court Judgment. The matter is pending before a bench headed by Justice Manoj Mishra.

In 2021, a two judge Bench of the Supreme Court comprising Justices Vineet Saran and BR Gavai in Kanumuri Raghurama Krishnam Raju vs The State Of Andhra Pradesh held as follows:

“The jurisdiction of the Trial Court as well as the High Court under Section 439 of the Code of Criminal Procedure is concurrent and merely because the High Court was approached by the appellant without approaching the Trial Court would not mean that the High Court could not have considered the bail application of the appellant. As such, in our view, the High Court ought to have considered the bail application of the appellant on merits and decided the same”.

Recently [in August 2025], another two Judge Bench of the Supreme Court comprising Justices Sanjay Kumar and NV Anjaria criticized the Allahabad High Court observing that the High Court did not take note of the fact that it exercises concurrent jurisdiction along with the Sessions Court insofar as grant of anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is concerned.

“This Court's decisions in “Kanumuri Raghurama Krishnam Raju Vs. State of A.P” and “Arvind Kejriwal vs. Directorate of Enforcement” made this position clear and declared 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”.

While holding so, the Bench also referred to the five Judges Bench Judgement in Ankit Bharti v. State of UP & Anr which held that it is for the concerned Judge to assess whether special circumstances do exist in a particular case, warranting the jurisdiction of the High Court being invoked directly.

In Sundeep Kumar Bafna vs State Of Maharashtra AIR 2014 SC 1745 the Supreme Court held that since the Sessions Court as well as the High Court, both have concurrent powers under Section 439 CrPC, there is no statutory requirement to exhaust the lower forum first.

Conflicting Views of High Courts

A five Judges Bench of the Allahabad High Court in Ankit Bharti v. State of UP & Anr held that the special circumstances, the existence of which have been held to be a sine qua non to the entertainment of an application for anticipatory bail directly by the High Court, must be left for the consideration of the Judge before whom the petition is placed and a decision thereon be taken bearing in mind the facts and circumstances of that particular cause. However, special circumstances must necessarily exist and be established as such before the jurisdiction of the High Court is invoked.

Similar views were taken by many High Courts including Karnataka, Punjab & Haryana and Patna High Courts.

Delhi High Court has taken a liberal view in Pankaj Bansal Vs State 2023 LiveLaw (Del) 508 and held as follows:

“It is clear upon perusal of Section 438(1) of Cr.P.C, that the provision gives concurrent jurisdiction to both the Court in entertaining an Anticipatory Bail Application. There is no bar on approaching this Court directly under Section 438 of CrPC for the purpose of bail. It is discretionary for the Applicant either to approach the High Court or the Court of Session. There is no restraint cast upon the Applicant to approach this Court first. It is based upon the discretion of the Applicant which Court they want to approach since both the Court have concurrent jurisdiction and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly. Section 438 is a procedural provision that is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offense in respect of which he seeks bail. An over-generous infusion of constraints and conditions not to be found in Section 438 can make its provision constitutionally vulnerable since the right to personal freedom cannot depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. These observations have been made in the context that earlier the view taken was that the power of granting anticipatory bail was somewhat extraordinary in character and in exceptional cases it should be granted. Therefore, this Court is of the view that this Court has the jurisdiction to entertain the bail application under Section 438 even when the applicant has not approached the Court of Sessions first.”

The Full Bench of the Himachal Pradesh High Court in Mohan Lal & others vs. Prem Chand & others AIR 1980 HP 36, held that the applicant cannot be compelled to apply to Sessions Judge before approaching the High Court.

The Uttarakhand High Court in Mubarik and another Vs State of Uttarakhand & others (2018) held that the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. It is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly.

The Uttarakhand High Court also referred to a Supreme Court judgement in the case titled Barun Chandra Thakur vs. Central Bureau of Investigation & others [2018 (12)SCC 119] wherein it was held that the act of the respondent in approaching the high court directly for anticipatory bail cannot be faulted when both high court and the court of sessions have concurrent jurisdiction.

A Division Bench of the Andhra Pradesh High Court in Y. Chendrasekhara Rao & others vs. Y.V. Kamala Kumari & others has held that Section 438 CrPC confers power both on High Court and Court of Session to grant anticipatory bail. The denial of right to move the High Court in first instance amounts to violation of Article 21 of the Constitution. The Division Bench has further held that it is not obligatory to file an application under Section 438 CrPC before Court of Session in the first instance. The Division Bench has held as under:-

"24. Protection of life and personal liberty is a guaranteed fundamental right under Article 21 of the Constitution of India. It enjoins that no person shall be deprived of his life and personal liberty except according to the procedure established by law. The protective umbrella of Article 21 comprehends many facets of personal liberty. As the Supreme Court recognised in Gurbaksh Singh's case (supra) denial of bail amounts to deprivation of personal liberty (paragraph 27 at page 1646). When the procedure incorporated under Section 438 in unequivocal language confers power both on the High Court and the Court of Session to grant anticipatory bail, denial of the right of move the High Court, in the first instance, clearly amounts to violation of the guaranteed fundamental right under Article 21 of the Constitution of India."

In Khalid Hussain And Ors vs Ut Of J&K, a single judge of the Jammu & Kashmir and Ladakh High Court took the following view:

"Since there is cleavage of judicial opinion on the issue and the Hon'ble Supreme Court is already seized of the matter in Gauhati High Court Bar Association vs. State of Assam and others, as such it may not be appropriate for me to make reference to the larger Bench for authoritative pronouncement".

Kerala High Court's stand

A single Judge Bench of the Kerala High Court in Usman v. S. I. of Police 2003 (2) KLT 594, held that following the salutary procedural self imposed rule of restriction, a High Court shall not ordinarily (and except under exceptional circumstances) exercise its powers under Sections 438 and 439 of Cr.P.C. without and before the Sessions Court having concurrent jurisdiction is moved for identical relief.

The single judge issued the following (among other) directions:

i. Applications under Section 438 and Section 439 Cr.P.C. shall hereafter be numbered by the Registry of this Court only when it is accompanied by a copy of the order of the Sessions Court (or memo / petition as indicated in clause (ii) below).

ii. If it is not accompanied by copy of the order, such applications must be accompanied by a petition / memo explaining why copy is not produced or why the Sessions Court had not been moved earlier. The application shall be numbered by the Registry only after the court in its discretion by order passed in such memo / petition directs such reception / numbering.

A Division Bench of the High Court comprising Justices JL Gupta and AK Basheer later considered the validity of the above directions in Balan Vs State of Kerala and overruled the directions issued by the single judge. It was held by the Division Bench that the provision [Section 438] does not restrict the choice. It gives a person/accused the right to apply to the High Court or the Court of Sessions.

“We are of the view that his right must be respected. It should not be cribbed, cabined or confined. He must be given the liberty to choose the forum that he wants to approach. Since the statute places no restriction, we are unable to find any reason to add an embargo," the division bench had said.

“It is undoubtedly true that there is a heavy burden of cases in the High Courts. There is a long pendency. The arrears are mounting. However, even in the subordinate courts, the situation is not very encouraging. Persons remain in custody for long time before the trials commence. In this situation and taking all the facts cumulatively into consideration, we do not think that on the plain language of the statute, there is any warrant for imposing the strict restrictions that have been laid down in Usmans case (supra).

Thus, it is no surprise that the statute has given the applicant a choice. On a plain reading of the statutory provisions, it is clear that the right to choose the forum is with the person who is apprehending arrest or has been actually arrested. This right should not be curtailed by any self imposed restraint. Such restrictions, as mentioned in the order, can result in more harm than good and defeat the object with which the provision was introduced," it had said further.

The Division Bench concluded the Judgement by holding that the provisions of Section 438 and Section 439 do not call for a restricted interpretation. The citizen has the right to choose. His application should be considered. Each case should be examined on its own merits. If it is found that the ground for grant of bail is not made out, the Court has the full jurisdiction to deny relief. Equally, if a case is made out, the citizen's liberty should not be allowed to be curtailed.

In Venu Gopalakrishnan and Ors. v. State of Kerala and Anr [2025 LiveLaw (Ker) 559], a Single Judge of Kerala High Court has echoed the view taken by the High Court in the following terms;

"...in the light of the binding precedents of the Supreme Court in Gurbaksh Singh Sibbia (supra), and Kanumuri Raghurama Krishnam Raju (supra) apart from that of this Court in Balan (supra), an application for anticipatory bail is maintainable in the High Court and the party is at liberty to choose the forum. Until a contrary precedent is laid down by the Supreme Court, this Court is bound to follow the above propositions of law."

High Courts across the country have delivered divergent views: some insisting upon “special circumstances” before entertaining such pleas, others upholding the applicant's unfettered choice of forum in light of concurrent jurisdiction. The Kerala High Court's approach, rooted in its Division Bench ruling in Balan v. State of Kerala [Supra], is consistent with precedents and constitutional mandate of safeguarding liberty.

In this context, an authoritative pronouncement from a larger Bench of the Supreme Court is necessary to resolve the conflicting views on this issue.

Views are personal.