Can a High Court Change Its Own Bail Order If the Supreme Court Is Already Looking Into It?

The Supreme Court has raised serious questions about judicial discipline after discovering that a High Court modified its own anticipatory bail order even while the top court was already hearing a challenge against it. The matter has put a spotlight on how courts are expected to behave when an appeal is pending before the country’s highest judicial authority.

On February 4, 2025, the Kerala High Court granted anticipatory bail to a woman named Anitha R Nair, allowing her to avoid arrest in a case under investigation. That order was soon challenged before the Supreme Court, and once the top court takes up a matter like this, its decision is expected to hold the field. But even as the special leave petition was pending, Anitha approached the Kerala High Court again. She requested permission to travel to Singapore and asked for her passport to be released. To the surprise of many, the High Court allowed it. This meant the court modified its earlier bail order even while the Supreme Court was already seized of the matter.

When this came to light, the Supreme Court reacted sharply. On September 4, 2025, a bench of Justices J K Maheshwari and Vipul M Pancholi said the High Court should not have passed such an order when its earlier decision was under challenge before the apex court. The judges stressed that once the Supreme Court is examining a case, the High Court must exercise restraint and avoid steps that could undermine or render useless the top court’s proceedings. They called the action of the High Court contrary to judicial propriety and discipline.

The Supreme Court immediately put a stop to the reliefs granted by the High Court. It stayed all such orders until further notice, directed Anitha to surrender her passport, and barred her from leaving India without permission of the court. The judges also issued a notice to Anitha asking why her anticipatory bail should not be cancelled altogether for concealing facts and securing fresh relief despite the ongoing challenge in the Supreme Court. She has been given three weeks to file her response, attaching all relevant documents submitted before the High Court and the trial court. The case has been fixed for further hearing on September 26, 2025.

The bench also examined whether the Kerala High Court was told about the pending proceedings in the Supreme Court. Counsel for Anitha argued that her pleadings before the High Court did mention the existence of the special leave petition. But the Supreme Court noted with displeasure that when Anitha filed her counter affidavit before it on July 14, 2025, she made no mention of the fact that she had also filed a modification application in the High Court. The application had been filed on July 6, 2025, while the matter was listed before the Supreme Court on July 14, July 25, and August 25. The omission to inform the top court, despite active hearings, was recorded as a serious lapse. The judges said they would reserve their views on the conduct of the accused for the time being but made clear their displeasure.

For now, Anitha cannot travel abroad and must submit her passport to the authorities. She will have to wait until September 26, when the Supreme Court will hear the matter again and decide whether her anticipatory bail should remain in force or be cancelled in light of her conduct.

This case is significant because it underscores the importance of judicial hierarchy. When a case is under consideration by the Supreme Court, High Courts are expected to refrain from passing orders that may overlap or conflict with the apex court’s ongoing scrutiny. If lower courts continue to alter their own orders while appeals are alive, it creates confusion and undermines the authority of the highest court. For the public, the episode serves as a reminder that judicial discipline is not an abstract concept but a necessary safeguard to ensure clarity, consistency, and fairness in the legal process.

Case Title: Sreeja DG & Ors vs. Anitha R Nair & Anr

Date of SC Order: September 4, 2025

Bench: Justices J K Maheshwari and Vipul M Pancholi