The Supreme Court has recently come across an Orissa High Court order, where the High Court, while denying anticipatory bail to the accused in a murder case, has advised the accused to move for regular bail and directed the trial court to release the accused persons on the conditions imposed by the High Court, thereby usurping the role of the trial court.

Deprecating such a practice, a bench of Justice Sanjay Kumar and Justice Sanjeev Sachdeva said it is impermissible for the High Courts to usurp the trial court's role by imposing bail conditions and advising a party on its next/future course of action.

“Once the High Court came to the conclusion that no case was made out for grant of anticipatory bail, it was not for the High Court to direct as to how the future should unfold. The High Court not only advised the respondents as to their next course of action but also decided and dictated the terms on which they were to be granted bail by the trial Court.”, the Court said.

The Court was hearing the complainant's appeal against the High Court's order denying anticipatory bail to the accused persons but advising them to file a regular bail application before the trial court and directing the trial court to release them on regular bail on such conditions which were imposed by the High Court.

In compliance with the High Court's order, the trial court released the accused persons on bail.

Finding the High Court's order to be excessive, the Supreme Court found that the High Court, in effect, had usurped the role of the trial court, leaving no discretion with the trial court to adjudicate the bail pleas on their own merits and in accordance with law.

“The positive directions of the High Court, apart from being in excess of the jurisdiction that it was exercising under Section 438 of the Code of Criminal Procedure, 1973, completely usurped the role to be played by the trial Court upon the filing of regular bail applications at the appropriate stage by the respondents. In effect, the trial Court was left with no discretion to adjudicate such bail applications on their own merits and in accordance with law.”, the Court said.

As a result, the High Court's order was partly set aside, wherein the order denying the anticipatory bail was upheld, however, the order imposing bail conditions, the future course of action for the accused persons, and a direction to a trial court to release the accused persons was set aside.

The accused persons were ordered to surrender within two weeks.

“The impugned order, to the extent it issued directions in paragraph 19 thereof is, accordingly, set aside. The order shall, however, stand confirmed insofar as rejection of the respondents' prayer for grant of anticipatory bail is concerned. In consequence, the order dated 30.01.2026 passed by the learned Sub-Divisional Judicial Magistrate, Rayagada, shall also stand set aside and the respondents shall surrender within two weeks. The bail bonds and sureties furnished by them shall stand discharged at that stage.”, the Court ordered.

“This order shall, however, not preclude the respondents from seeking relief at the appropriate stage before the appropriate forum in accordance with law, consequent upon the rejection of their anticipatory bail applications by the High Court.”, the Court clarified.

Appearance:

For Petitioner(s) : Mr. Tushar Garg- 4215, AOR Mr. Dhruv Raman Singh, Adv. Mr. Dr. Sumit, Adv. Mr. Himanshu Shammi, Adv. Mr. Rithin Gopi TG, Adv. Mr. Suchit Mohanty, Adv. Mr. Samarth Mohanty, Adv. Ms. Talat Chaudhary, Adv. Ms. Vandana Kaushal- 3526, AOR

For Respondent(s) : Mr. R. Basant, Sr. Adv. Mr. Anjuman Tripathy- 3495, AOR Mr. Mohit Singh Sikarwar, Adv. Mr. Raunak Arora, Adv. Mr. Debabarata Dash, Adv. Ms. Apoorva Sharma, Adv. Mr. Amit P. Bose, Adv. Ms. Aditi Gouda, Adv. Mr. Soubhagya Ranjan Pati, Adv. Mr. Deepak Zindal, Adv. Mrs. Pooja Garg, Adv. Mr. Tushar Garg- 4215, AOR Ms. Rashmi Nandakumar, AOR Ms. Shomona Khanna, Adv. Ms. Yashmita Pandey, Adv. Ms. Ayesha Nasir Alavi, Adv. Ms. Anindita Mitra- 2634, AOR Ms. Srishti Ghoshal, Adv.