SC Questions Kerala HC for Entertaining Direct Anticipatory Bail Pleas Without Sessions Court Recourse

The Bench of Justice Vikram Nath and Justice Sandeep Mehta while making interim protection earlier granted to the petitioners absolute, has now sought a response from the Kerala High Court through its Registrar General on whether such a practice of directly entertaining anticipatory bail pleas is being followed.

The matter has been listed for further consideration on October 14, 2025.

At the outset, the Court noted that interim protection had already been granted to the petitioners on May 5, 2025. Taking into account the facts and circumstances, the Bench made that order absolute, subject to conditions.

The Bench directed the petitioners to extend full cooperation during investigation and trial. It also clarified that if the trial court or the State found the petitioners delaying proceedings, it would be open to approach the Supreme Court for recall of the protective order.

The Bench, however, used the opportunity to address a wider systemic concern. It observed that though the Sessions Court and the High Court enjoy concurrent jurisdiction to hear anticipatory bail pleas under Section 482 BNSS, judicial discipline and hierarchy demand that applicants ordinarily first move the Sessions Court.

“We are of the opinion that though concurrent jurisdiction is conferred, the hierarchy of Courts demands that no person seeking such remedy should be encouraged or allowed to directly approach the High Court… by bypassing the jurisdiction of the concerned Sessions Court,” the order stated.

The Court gave detailed reasons why anticipatory bail pleas should ordinarily begin at the Sessions Court:

-Accessibility of Records: The Sessions Judge has immediate access to the case diary and the assistance of the district’s public prosecutor, enabling a more informed decision-making process.

-Efficient Distribution of Work: Since Sessions Judges exercise powers across all police stations in their districts, the structure allows for expeditious disposal of anticipatory bail pleas.

-Filtering Mechanism: If litigants were required to approach Sessions Courts first, a substantial number of applications might be disposed of at that level, reducing the burden on High Courts.

-Risk of Flooding High Courts: Direct filing in High Courts, if encouraged, could result in a flood of anticipatory bail applications, creating what the Bench termed a “chaotic situation.”

The Court noted that in most states, a consistent practice already exists: litigants first approach the Sessions Court, and only upon rejection of relief can they move the High Court. This, the Bench stressed, serves as a judicial filtration process.

At the same time, the Court acknowledged that there could be exceptional circumstances where, for recorded reasons, a High Court may directly entertain a pre-arrest bail application. Such cases, however, must remain exceptions rather than the rule.

Taking note of the issue, the Bench issued notice to the Kerala High Court through its Registrar General to respond on this procedural practice. The Court appointed Senior Advocate Sidharth Luthra as amicus curiae, to be assisted by Advocate G. Arudhra Rao, to assist the Court in examining the larger implications of bypassing Sessions Courts in anticipatory bail matters.

The Registry has been directed to provide relevant papers to the Amicus within three days.

The matter is scheduled for October 14, 2025, when the Court will consider submissions from the Kerala High Court and the Amicus on this issue.