Supreme Court Disapproves High Courts Directly Entertaining Anticipatory Bail Applications, Issues Notice To Kerala HC

The Supreme Court has expressed disapproval of the practice of High Courts directly entertaining applications for anticipatory bail, bypassing the Sessions Court.

The Court has decided to consider the appropriateness of this practice and issued notice to the Kerala High Court, which passed the order under challenge. The Court also appointed Senior Advocate Sidharth Luthra, assisted by Adv. G. Arudhra Rao, as amicus curiae in the matter.

The bench comprising Justice Vikram Nath and Justice Sandeep Mehta acknowledged that the Bharatiya Nagarik Suraksha Sanhita conferred concurrent jurisdiction to both the Sessions Court and the High Court to deal with an anticipatory bail application. However, the bench opined that the High Court can directly entertain such matters only in exceptional cases, that too for special reasons to be recorded.

"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", said the bench.

The bench was dealing with a case where the petitioners had directly approached the Kerala High Court seeking pre-arrest bail, without first approaching the Sessions Court.

It was of the view that if applications for pre-arrest bail are allowed to be directly filed before High Courts, the Courts would be "flooded" with a spate of such applications, thereby creating a "chaotic situation". Per contra, if parties first approach the Sessions Court, there can be a sort of "filtration" as many applications may be allowed at the Sessions Court level itself. 

"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."

The bench further noted that Sessions Judges can appreciate the facts of a case better as they have first-hand assistance of the Public Prosecutors and immediate access to the Case Diary.

"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."

It was also observed that in many High Courts, the practice of a litigant being required to first approach the Sessions Court for pre-arrest bail is consistent. However, in special circumstances, one may be allowed by the High Court, for reasons to be recorded, to directly seek the relief from it.

"only in the event of denial of such relief (by the Sessions Court), 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."

Notably, last month, a bench of Justices Sanjay Kumar and NV Anjaria, in another case, had observed that it was not necessary for an accused to first approach the Sessions Court for anticipatory bail. The said bench set aside an order of the Allahabad High Court which refused to entertain a bail application on the ground that the Sessions Court was not first approached.

"This Court's decisions in “Kanumuri Raghurama Krishnam Raju Vs. State of A.P” (2021) 13 SCC 822 and “Arvind Kejriwal vs. Directorate of Enforcement”  2024 INSC 512 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," the bench led by Justice Sanjay Kumar observed in the order passed on August 7, 2025 in Manjeet Singh v. State of Uttar Pradesh SLP (Crl) 11667/2025 

In 2023, a two-judge bench of the Court, in Gauhati High Court Bar Association v. State of Assam & Ors, had decided to consider the question "whether the High Court exercising jurisdiction under Section 438 has discretion not to entertain such an application on the ground that the applicant must first apply to the Court of Sessions."

In 2003, the Kerala High Court Division Bench (Balan v State of Kerala), held that it was not necessary for an accused to first approach the Sessions Court for bail under Section 438/439 CrPC and that an application can be directly filed in the High Court.Case Title: MOHAMMED RASAL.C & ANR. VERSUS STATE OF KERALA & ANR., SLP (Crl.) No. 6588/2025

Citation : 2025 LiveLaw (SC) 884

Click here to read the order