S.482 BNSS | Anticipatory Bail Applications Maintainable Before HC Even If Parties Did Not Approach Sessions Court First: Kerala High Court

The Kerala High Court has recently clarified that anticipatory bail applications can be entertained by the High Courts and there is no need for parties to first approach the Sessions Court in light of the precedents in the case.Justice Bechu Kurian Thomas made the observation while considering an anticipatory bail plea preferred by an IT-firm owner in an alleged case of rape and sexual harassment of his female employee.The Court had considered the maintainability of the bail application before proceeding to decide the case in light of the recent observation made by the Supreme Court in Mohammed Rasal. C & Another v. State of Kerala, expressing concern regarding anticipatory bail applications being filed directly before the High Court before approaching the Sessions Court. The Apex Court had issued notice to the High Court in the case."However, since this bail application had already been reserved for orders prior to the Supreme Court expressing its concerns, this Court is obliged to pronounce final orders on this bail application. Hence, the said issue has to be addressed, based on the law now in force", Court said.The Supreme Court had made the following observation:"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."Noting that no final or binding decision had been made in the case, the High Court looked into the precedents in force at present.Referring to the precedents laid down in the Division Bench of the Kerala High Court in Balan v. State of Kerala [2003 (3) KLT 472], the Supreme Court decisions in Shri.Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565], Kanumuri Raghurama Krishnam Raju v. State of Andhra Pradesh and Others, it observed:"In view of the above, and 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."The High Court also noted that due to the special circumstance that the case had been entertained and reserved for orders before the Supreme Court made the aforesaid observation, it has to pass orders on merits.It further observed:"Even otherwise, in the instant case, considering the nature of allegations, and the matter having been entertained and heard at length and even reserved for orders initially on 22-08-2025, much before the observations in Mohammed Rasal C (supra), special circumstances exist to pass orders on merits, rather than relegate the parties to the Sessions Court. Hence, this bail application is maintainable."After finding that the bail application was maintainable, the Court passed its decision on the merits of the case.Case No: Bail Appl. 9589 of 2025Case Title: Venu Gopalakrishnan and Ors. v. State of Kerala and Anr.Citation: 2025 LiveLaw (Ker) 559Counsel for the petitioners: P. Vijaya Bhanu (Sr.), Thomas J. Anakkallunkal, P. Sanjay, Jayaraman S., Anupa Anna Jose Kandoth, Ann Milka George, Dhanya Sunny, Sherin Rachel Santhosh, A. Parvathi Menon, Biju Meenattoor, Paul Varghese (Pallath), Kiran Narayanan, Rahul Raj P., Muhammed Bilal V.A., Meera R. MenonCounsel for the respondents: C. Dheeraj Rajan, Anand Kalyanakrishnan, Libin Varghese, Sanoj M.A., Sreeja V. - Public ProsecutorClick to Read/Download Judgment

S.482 BNSS | Anticipatory Bail Applications Maintainable Before HC Even If Parties Did Not Approach Sessions Court First: Kerala High Court

K. Salma Jennath

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