Can High Courts Be Directly Approached For Anticipatory Bail Bypassing Sessions Courts? Supreme Court Reserves Judgment

The Supreme Court recently reserved judgment on a challenge to the Kerala High Court's order, which granted pre-arrest bail even though the petitioners had not approached the Sessions Court at the first instance. Although the Court had made the interim protection absolute, it raised a larger question as to whether the High Courts should directly entertain anticipatory bail applications without the matter first being heard by the Sessions Court. 

The matter was reserved by a bench comprising Justice Vikram Nath, Justice Sandeep Mehta and Justice Aparesh Kumar Singh in Mohammed Rasal C v State of Kerala recently.

On a previous occasion when the matter was first heard, the Court had disapproved of the practice by High Courts directly entertaining such applications. A bench comprising Justice Nath and Justice Mehta had referred the matter to a three-judge bench in light of conflicting decisions.

It stated that encouraging parties to directly approach the High Courts would create a "chaotic situation" as High Courts would be flooded with such applications.

Further, the bench reasoned that the Sessions Court acts as a filtration process because most anticipatory applications are often decided at that level, lessening the burden on High Courts. The Court noted that its true that the Trial Court and the Sessions Court enjoy concurrent jurisdiction under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023(Section 438 of the CrPC), the hierarchy demands that the person should approach the Sessions Court first.

"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."

Approaching the Sessions Court is more convenient in terms of the accessibility of records and jurisdictional ease and also facilitates the expeditious disposal, it had added.  The bench, however, stated that the High Courts can be approached in extraordinary situations.

Suggestions of the amicus

In this case, the Court had issued notice to the State of Kerala and appointed Senior Advocate Siddharth Luthra, assisted by Counsel Arudhra Rao, as amicus curiae. They submitted that despite the concurrent jurisdiction conferred on both Courts, the Sessions Court should be approached first.

They mirrored the approach adopted by the Court in the present case that the High Courts should be approached in exceptional circumstances. Luthra, along with Rao, pointed out four circumstances in which the litigant can directly approach the High Court: 

•  where the accused doesn't reside within the territorial jurisdiction of the Sessions Court and/or the High Court is apprehending arrest; 
• situation is such where a person can't effectively seek redressal before the Sessions Court on account of local law and order disturbance, strikes, hostility, reasonable apprehension of grievous and other bodily harm to the person of the individual and/or their family members, and so on;
• where the accused can make out their inability to approach the Sessions Court because of medical or other emergency of similar nature;

• Where the Court of first jurisdiction under Section 438 CrPC/ S. 482 BNSS is a Special/designated Court of the rank of an Additional Sessions/Sessions Judge dealing with a special/local law

The amicus's report was also critical of the subsequent judgment of the Kerala High Court, where it was observed that the High Courts are not barred from entertaining the anticipatory bail applications on the first instance.

The Kerala High Court Advocates Association had filed an application to get impleaded in the case. They were represented by Senior Advocate S. Nagamuthu. The association had submitted that the discretion of the High Courts in entertaining anticipatory bail applications can't be curtailed as the provision doesn't prescribe any institutional hierarchy and merely says both enjoy concurrent jurisdiction. 

Whether this practice is consistent

The two-judge bench had further noted that in most of the States, the practice of approaching the Sessions Court for anticipatory bail is consistent. This may not be entirely correct even for the Supreme Court. But before going into conflicting opinions, it should be noted that a five-judge bench in Gurbaksh Singh Sibbia v State of Punjab(1980) had opined that the provision for anticipatory arrest needs to be interpreted in light of Article 21.

The Supreme Court has expressed conflicting views on this in: Manjeet Singh v. State of Uttar Pradesh(2025) and Jagdeo Prasad v. State of Bihar(2025).

In March 2020, a five-judge bench of the Allahabad High Court clarified that a person could move the High Court for anticipatory bail without approaching a Sessions Court first under 'special circumstances'. It stated that judge should assess whether special circumstances do exist in a particular case, warranting the jurisdiction of the High Court being invoked directly.

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

In the same vein, the Jammu and Kashmir and Ladakh High Court also ruled that although Section 438 gave concurrent jurisdiction to consider anticipatory bail applications, as a matter of ordinary practice, such applications would not be entertained by the High Courts unless the person apprehending arrest has exhausted the remedy before the sessions court or there existed exceptional circumstances.

In another pending case since 2023 in Gauhati High Court Bar Association v. State of Assam & Ors, the Supreme Court bench comprising Justice Manoj Misra and Justice Aravind Kumar has been considering whether High Courts can refuse to entertain anticipatory bail if the person has not approached the Sessions Court first. In this case, the Gauhati High Court had opined that the litigant needs to first exhaust his remedy before the Sessions Court. When it was challenged, the Court stayed the judgment.

Whereas, the Delhi High Court has interpreted this liberally, stating that the provision on anticipatory bail can't be interpreted narrowly to restrict the jurisdiction of either. Similar views have been taken by the Full Bench of the Himachal Pradesh High Court in Mohan Lal & others vs. Prem Chand & others, wherein it was held that the applicant cannot be compelled to apply to Sessions Judge before approaching the High Court. The Uttarakhand High Court and Andhra Pradesh High Court have adopted a similar stand.

In the Kerala High Court, the situation is a bit peculiar. This is because the issue was first considered by the single judge of the High Court in Usman v. S.I. of Police(2003), wherein he held that the High Court shouldn't ordinarily exercise jurisdiction. Following this, he passed directions to the Registry to number applications under Sections 438 and 439 CrPC only when accompanied by a copy of the Sessions Court order or a petition explaining why the accused did not approach the Sessions Court.

Subsequent to this, another single judge expressed reservation, and the matter was placed before the Division Bench in Balan v. State of Kerala (2003). It overruled the directions issued by the single judge and held that Section 438 does not restrict the choice. 

However, despite this, some benches of the High Court follow the Balan judgment, whereas others don't.