The Supreme Court has expressed strong disapproval of the practice adopted by certain High Courts of directly entertaining anticipatory bail applications, without requiring litigants to first approach the Sessions Court. The Court has now decided to examine the appropriateness of this practice in detail and has issued notice to the Kerala High Court, whose order is under challenge in the present case.

 

A bench comprising Justice Vikram Nath and Justice Sandeep Mehta also appointed Senior Advocate Sidharth Luthra, assisted by Advocate G. Arudhra Rao, as amicus curiae to assist the Court in resolving the issue.

 

The Court acknowledged that the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023—which replaced the Code of Criminal Procedure—confers concurrent jurisdiction upon both the Sessions Court and the High Court to entertain applications for anticipatory bail (Section 482 BNSS, formerly Section 438 CrPC).

 

However, the bench stressed that judicial hierarchy and discipline require litigants to ordinarily approach the Sessions Court first, except in rare and exceptional cases where the High Court can directly entertain such pleas.

 

The Court observed:

 

 

Concerns of Judicial Floodgates

 

The bench was dealing with a case where the petitioners directly approached the Kerala High Court seeking anticipatory bail, without first applying before the Sessions Court.

 

The Supreme Court cautioned that encouraging this practice could “flood” the High Courts with bail applications, thereby creating a chaotic situation.

 

The Court reasoned that if litigants were required to first move the Sessions Court, a degree of filtration would take place, as many cases may be disposed of at that level itself. This, in turn, would ease the burden on the High Courts and ensure better judicial efficiency.

 

Role of Sessions Courts

 

The bench highlighted that Sessions Judges are better placed to appreciate the facts of cases, given their immediate access to Case Diaries and first-hand assistance from District Public Prosecutors.

 

It noted:

 

 

The Court further observed that in many High Courts across India, the consistent practice is that a litigant must ordinarily first approach the Sessions Court. However, it clarified that in special or extraordinary circumstances, the High Court may, for reasons to be recorded, entertain an anticipatory bail plea directly.

 

The present development comes against the backdrop of conflicting judicial pronouncements over the years:

• August 7, 2025 – Manjeet Singh v. State of Uttar Pradesh (SLP (Crl) 11667/2025): A bench of Justices Sanjay Kumar and N.V. Anjaria held that it was not mandatory for an accused to first approach the Sessions Court for anticipatory bail. The bench relied on Kanumuri Raghurama Krishnam Raju v. State of A.P (2021) 13 SCC 822 and Arvind Kejriwal v. Directorate of Enforcement (2024 INSC 512), which clarified that approaching the Sessions Court was not a rule of law.

• Gauhati High Court Bar Association v. State of Assam (2023): The Supreme Court had already flagged the question whether a High Court, while exercising jurisdiction under Section 438, could refuse to entertain an application on the ground that the applicant must first apply to the Sessions Court.

• Allahabad High Court (2020, Five-Judge Bench): Held that Section 438 CrPC does not require an accused to first move the Sessions Court, and a direct approach to the High Court was permissible in special circumstances.

• Kerala High Court (2003, Division Bench in Balan v. State of Kerala): Held that an accused could file for anticipatory bail either before the Sessions Court or the High Court, and that it was not mandatory to first approach the Sessions Court.

 

These divergent views have resulted in lack of uniformity across jurisdictions, with some High Courts insisting on Sessions-first practice, while others permitting direct filing before them.

 

In the present case, titled Mohammed Rasal C. & Anr. v. State of Kerala & Anr., SLP (Crl.) No. 6588/2025, the Court appeared inclined to reinforce the hierarchical structure of criminal procedure. It emphasized the need to discourage litigants from bypassing the Sessions Court, while leaving the door open for extraordinary exceptions where the High Court may directly entertain such pleas.

 

The Court has now sought a response from the Kerala High Court and will further examine whether a uniform rule should be evolved to govern the exercise of concurrent jurisdiction under Section 482 BNSS (formerly Section 438 CrPC).