Introduction
Anticipatory bail, a procedural safeguard protecting individuals from arrest in false or motivated cases, has always occupied a crucial space in India’s criminal jurisprudence. Codified under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) and now carried into the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), it allows any person apprehending arrest to apply to either the Sessions Court or the High Court for pre-arrest bail.
Recently, the Supreme Court of India expressed serious concern over a prevailing practice in the Kerala High Court: entertaining anticipatory bail applications directly, without requiring applicants to first approach the Sessions Court. Observing that this trend may compromise judicial discipline, the Court appointed Senior Advocate Sidharth Luthra as amicus curiae to assist and scheduled a detailed hearing on October 14, 2025
This development has reignited debate on judicial hierarchy, forum shopping, and the scope of liberty under Article 21 of the Constitution.The provision, while granting concurrent jurisdiction, does not lay down a specific sequence in which courts must be approached. This textual ambiguity has created space for different High Courts to develop their own practices.
The BNSS, 2023 retains this wording almost verbatim in Section 482, ensuring continuity but leaving the interpretational dilemma unresolved.
Judicial Discipline and Hierarchy
Though the statute gives concurrent jurisdiction, judicial precedent has emphasized discipline in hierarchy. The rationale is:
- Sessions Courts act as the first forum of fact and law—accessible at the district level
- Approaching High Courts directly undermines efficiency and burdens higher judiciary.
- It also creates scope for forum shopping, where litigants bypass lower courts hoping for a more favorable order.
The Supreme Court in State of Madhya Pradesh v. Pradeep Sharma (2014) 2 SCC 171 highlighted the importance of respecting procedural hierarchies in bail jurisprudence.
Kerala High Court’s Practice Under Scrutiny
For years, Kerala High Court has routinely entertained anticipatory bail pleas directly. This has been defended on the ground that:
• Section 438 permits approaching either forum.
• In politically sensitive cases or matters involving state machinery, Sessions Courts may not provide a fair hearing.
However, the Supreme Court has now intervened, observing that this practice may dilute judicial discipline and distort the balance intended in criminal procedure.
Supreme Court’s Landmark Observations on Anticipatory Bail
1. Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565
• The Constitution Bench famously upheld the constitutional validity of anticipatory bail, calling it a measure to protect personal liberty under Article 21.
• The Court, however, emphasized judicial discretion and cautioned against granting anticipatory bail as a matter of routine.
2. Balchand Jain v. State of Madhya Pradesh, (1976) 4 SCC 572
• This case established anticipatory bail as an extraordinary remedy, not to be invoked casually.
3. State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171
• The SC clarified that anticipatory bail cannot be claimed as a matter of right; judicial discipline must govern its application.
4. Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694
• Expanded anticipatory bail jurisprudence by stressing on liberty over technicality, but without negating the hierarchical structure of courts.
These precedents highlight the delicate balance between protecting liberty and maintaining procedural order.
Arguments Supporting Direct HC Access
• Statutory Wording: The phrase “High Court or Court of Session” in Section 438 suggests concurrent jurisdiction without mandatory sequencing.
• Perception of Bias: In politically charged cases, Sessions Courts may be vulnerable to executive pressure; direct HC access ensures impartiality.
• Expediency: High Courts, with broader powers, can provide quicker and more effective relief in urgent cases.
Arguments Against the Practice
• Judicial Discipline: Hierarchical discipline ensures order; otherwise, High Courts may be inundated.
• Forum Shopping: Applicants may bypass Sessions Courts for “favorable benches,” eroding credibility.
• Undermining Sessions Courts: Weakens their constitutional role as trial courts and first appellate authority.
• Supreme Court Precedents: SC has consistently stressed discipline in jurisdictional practice.
Constitutional Implications
At its core, the issue reflects a clash between:
• Article 21 (Right to Liberty): Protects individuals from arbitrary arrest.
• Article 227 (HC’s supervisory jurisdiction): Demands restraint and structured judicial functioning.
Balancing these principles is key: liberty cannot come at the cost of systemic chaos.
The Supreme Court’s comments were made in the context of the petition titled Mohammed Rasal C & Anr. v. State of Kerala & Anr., where
“In Kerala High Court there seems to be a regular practice that High Court accepts anticipatory bail directly without the litigator approaching the Sessions Court first.”
Supreme Court, bench of Justices Vikram Nath & Sandeep Mehta, on September 8, 2025
This case has put a spotlight on the procedural practice where the Kerala High Court entertains anticipatory bail petitions without first requiring the applicant to move the Sessions Court.
Conclusion
The debate over anticipatory bail in Kerala illustrates a deeper tension in Indian criminal jurisprudence—the reconciliation of individual liberty with institutional discipline. Liberty, as enshrined under Article 21 of the Constitution, is one of the most precious rights, and anticipatory bail acts as a shield against arbitrary arrest, police excesses, and malicious prosecution. However, when liberty is pursued in a manner that disregards the structured hierarchy of courts, it risks undermining the very system designed to protect it.
The Supreme Court’s observations in Mohammed Rasal C. & Anr. v. State of Kerala & Anr. highlight that while Section 438 of the CrPC (and Section 482 BNSS) grants concurrent jurisdiction to both Sessions Courts and High Courts, judicial practice must respect procedural orderliness and uniformity. By bypassing Sessions Courts altogether, litigants may not only overload High Courts but also compromise the localized fact-finding role of trial courts, which often serve as the first and most effective filter in criminal litigation. At the same time, one cannot ignore the counter-argument—particularly in politically sensitive or high-profile cases—that direct access to the High Court may provide an added layer of protection against potential bias or influence at the district level. This tension reflects the larger challenge of balancing individual-centric remedies with systemic safeguards.
The Supreme Court’s upcoming decision is therefore not just about Kerala; it is about setting a national precedent on how anticipatory bail should function within the criminal justice framework. If the Court lays down a clear mandate—such as requiring a Sessions Court to be approached first except in exceptional cases—it will harmonize practice across High Courts, reduce forum shopping, and strengthen judicial discipline without eroding the essence of liberty.
In the end, anticipatory bail must remain what it was always intended to be—an extraordinary remedy to protect innocent citizens from unjust arrest—while simultaneously upholding the integrity, discipline, and efficiency of the judicial system. The challenge before the judiciary is to strike this equilibrium, ensuring that the right to personal liberty is safeguarded, but not at the cost of systemic order.
