'High Court's Discretion To Directly Hear Anticipatory Bail Pleas Can't Be Curtailed' : Kerala HC Advocates Association To Supreme Court

The Kerala High Court Advocates' Association (KHCAA) has submitted before the Supreme Court that the discretion of the High Courts in entertaining anticipatory bail petitions in the first instance cannot be curtailed.

Opposing the view that Sessions Courts must be approached first for anticipatory bail, the KHCAA filed an application to get itself impleaded in the case where the Supreme Court is considering this issue. The Association argued that any attempt to curtail the High Court's jurisdiction would amount to "judicial overreach, undermining the legislative intent and encroaching upon the fundamental right to personal liberty."

It was in September that the bench comprising Justice Vikram Nath and Justice Sandeep Mehta took up this issue in the case Mohammed Rasal C v State of Kerala after expressing disapproval of the practice of the Kerala High Court to directly entertain anticipatory bail matters. The Court expressed the view that though Section 438 of the Code of Criminal Procedure (now Section 482 of the Bharatiya Nagarik Suraksha Sanhita) confers concurrent jurisdiction on the High Courts and Sessions Courts, applications for anticipatory bail should ordinarily be moved first before the Sessions Court, and that direct recourse to the High Court should be reserved for exceptional cases.

The bench also appointed Senior Advocate Siddharth Luthra as an amicus curiae for assistance. Last month, the amicus curiae submitted his report, opining that High Courts should directly hear anticipatory bail applications only in four exceptional circumstances.

Statutory scheme says there is no hierarchy 

The stance adopted by the KHCAA on this issue is that Section 482(1) BNS and Section 438(1) CrPC both confer concurrent jurisdiction upon both the High Court and the Sessions Court, and the provision does not prescribe any hierarchical restriction or a precondition requiring an accused person to first approach the Sessions Court. 

"A plain reading of the provision indicates that the legislature has conferred concurrent jurisdiction upon the High Court and the Court of Session to entertain an application for anticipatory bail. The statute does not prescribe any hierarchical restriction or pre-condition requiring an accused person to first approach the Court of Session before invoking the jurisdiction of the High Court. It is therefore submitted that it would not only be incorrect but also inappropriate to read into that provision fetters which the Legislature had chosen not to place."

It is stated that the legislative history makes it abundantly clear that the legislature intended to confer unferred concurrent jurisdiction to both for considering pre-arrest bail. Further, KHCAA points out that Section 438 CrPC uses a disjunctive "or" between the High Court and the Sessions Court, which unambiguously reflects the legislative intent to confer jurisdiction on either of the two Courts.

The KHCAA said that the discretion vested with the High Court can't be curtailed. Reference was made to the Constitution bench judgment in Gurbaksh Singh Sibbia v. State of Punjab(1980) which held that restrictions which are not there in Secton 438 CrPC cannot be read into it.

"It is therefore clear that there exists no basis, either statutory or constitutional, for the Hon'ble Supreme Court to impose restrictions on the High Court's exercise of jurisdiction under Section 438. Accordingly, any attempt to curtail the jurisdiction or discretion of the High Court under Section 438 may amount to judicial overreach, undermining the legislative intent and encroaching upon the fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India," the Association said.

It also mention that Supreme Court has expressed conflicting views on this. It cites two recent orders of the Supreme Court dealing with this issue: Manjeet Singh v. State of Uttar Pradesh(2025) and Jagdeo Prasad v. State of Bihar(2025).

In Manjeet Singh, a bench comprising Justice Sanjay Kumar and Justice NV Anjaria 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.

In Jagdeo Prasad, while setting aside an order for anticipatory bail granted by the Patna High Court, the Supreme Court has once again cautioned High Courts against directly entertaining anticipatory bail applications, stressing that litigants should ordinarily be directed to first approach the Sessions Court before invoking the High Court's concurrent jurisdiction.

Stance of Kerala High Court

The Association has stated that this issue was considered by the Kerala High Court way back in 2003 by a single judge in Usman v. S.I. of Police(2003). In this, the single judge noted that the High Court should exercise jurisdiction if the Sessions Court were not called upon early to exercise such jurisdiction.

"Following the salutory procedural self-imposed rule of restriction, a High Court shall not ordinarily (and except under exceptional circumstances) exercise its powers under Ss. 438 and 439 Crl.P.C. without and before the Sessions Court having concurrent jurisdiction is moved for identical relief."

Following this, the single judge 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). The Court overruled the directions issued by the single judge. It was held by the Division Bench that 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.

"Thus, it is clear that the provision confers a right on the person who is apprehending arrest to move a petition. He can choose the forum. He can file the application before either the High Court or the Sessions Court. The statute gives him the right. It imposes no restriction."

KHCAA states that, based on this decision in Balan, the High Court continues to entertain applications for anticipatory bail at the Court of first instance. However, because of the present matter, divergent views have emerged. For instance, in Venu Gopalakrishnan & Ors. v. State of Kerala(2025), the High Court followed the reasoning of the division bench; however, in Mukesh Murali v. State of Kerala(2025), the High Court refused to entertain an anticipatory bail petition as the Sessions Court was not approached first.

Peculiar situation in Kerala

One reason cited by the Supreme Court for preferring the Sessions Courts was that the Sessions Courts would be in a better position to understand the local situations and to get documents easily.

In this context, the KHCAA has stated that the issue of accessibility of case documents raised by the Supreme Court as the primary reason for according primacy to the Sessions Court is sufficiently addressed in the context of the Kerala High Court, which stands on a different footing because of its integrated online management system.

The digital portal allows the Court to directly requisition instructions, including case diaries and other relevant records from police stations and subordinate courts, in connection with any anticipatory bail application, ensuring expeditious access to materials necessary. Therefore, there is no practical impediment in the High Court entertaining an anticipatory bail at the first instance.

The Supreme Court today adjourned the matter observing that a three-judge bench is required to hear it.

Case Details: MOHAMMED RASAL.C & ANR. VERSUS STATE OF KERALA & ANR., SLP (Crl.) No. 6588/2025

Appearances: Senior Advocates  V. Giri and Nagamuthu, assisted by A. Karthik, AoR appeared for the Association.

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