The Supreme Court has reserved judgment on whether a High Court can entertain an anticipatory bail application directly, without the accused first approaching the Sessions Court, after hearing the amicus curiae and the Kerala High Court Advocates Association. The bench observed that unrestricted direct access could create a “chaotic situation” but that a High Court may be approached in extraordinary situations. [Mohammed Rasal C & Anr v. State of Kerala & Anr]
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New Delhi: A three-judge bench of the Supreme Court comprising Justice Vikram Nath, Justice Sandeep Mehta and Justice Aparesh Kumar Singh on Thursday reserved its judgment on a reference that asks whether the High Courts and Sessions Courts, which hold concurrent powers over pre-arrest bail, can be approached in any order or whether the Sessions Court must ordinarily be approached first. No date has been indicated for the verdict.
How the question arose
The matter arises from an SLP (Crl.) No. 6588/2025 filed by the petitioners, who had been granted pre-arrest bail by the Kerala High Court without first going to the Sessions Court. The Supreme Court made its interim protection absolute but flagged the larger question. An earlier bench of Justices Nath and Mehta disapproved of direct approaches to the High Court and, noting conflicting decisions, referred the issue to a bench of three judges.
The provision at the centre of the dispute is Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which corresponds to Section 438 of the Code of Criminal Procedure, 1973. Both confer the power to grant anticipatory bail on the High Court and the Court of Session.
The amicus’ suggestions
Senior Advocate Siddharth Luthra, assisting the Court as amicus curiae with Counsel Arudhra Rao, suggested that the Sessions Court should act as the usual first forum but that a direct approach to the High Court be permitted in defined exceptions. These were: where the accused is outside the territorial jurisdiction of the concerned Sessions Court and apprehends arrest; where there are law-and-order concerns or threats of bodily harm; where a medical or similar emergency exists; and where the case is before a special or designated court under a special law. He also criticised a later Kerala High Court judgment that allowed applications to be moved before it in the first instance.
The Advocates Association’s position
Appearing for the intervenor Kerala High Court Advocates Association, Senior Advocate S. Nagamuthu argued that the jurisdiction of the two forums is concurrent, that there is no hierarchy between them for this purpose, and that the High Court’s discretion cannot be curtailed by insisting on a prior approach to the Sessions Court.
What the bench said
The bench remarked that allowing everyone to go straight to the High Court could create a “chaotic situation”, and that the Sessions Court serves as a filter and is more convenient for most litigants. It also indicated that a High Court may still be approached in extraordinary situations. These were observations made during the hearing and do not decide the reference.
Precedents and the divide among High Courts
The hearing referred to the Constitution Bench ruling in Gurbaksh Singh Sibbia (1980), as well as Kanumuri Raghurama Krishnam Raju v. State of Andhra Pradesh (2021), Manjeet Singh v. State of Uttar Pradesh (2025) and Jagdeo Prasad v. State of Bihar (2025). High Courts have taken differing positions: the Allahabad, Delhi, Himachal Pradesh, Uttarakhand and Andhra Pradesh High Courts have been seen as more liberal on direct access, while a Gauhati High Court ruling requiring exhaustion of the Sessions route has been stayed. Benches of the Kerala High Court themselves remain divided over a 2003 Division Bench decision in Balan v. State of Kerala.
Until the judgment is pronounced, the question of whether a first-instance anticipatory bail plea can be taken up by a High Court remains open.
Case details: Mohammed Rasal C & Anr v. State of Kerala & Anr | SLP (Crl.) No. 6588/2025 | Bench: Justices Vikram Nath, Sandeep Mehta and Aparesh Kumar Singh | Judgment reserved.
Appearances: Senior Advocate Siddharth Luthra with Counsel Arudhra Rao (amicus curiae); Senior Advocate S. Nagamuthu (for the intervenor, Kerala High Court Advocates Association).