Anticipatory Bail Before High Court: Can You Skip the Sessions Court?
Seeking anticipatory bail before High Court, without first going to the Sessions Court, is something litigants have done for decades. The Supreme Court is now deciding whether that should continue. As reported by the Court, a bench of Justices Vikram Nath, Sandeep Mehta and Aparesh Kumar Singh has reserved judgment in Mohammed Rasal C v. State of Kerala (SLP (Crl.) No. 6588/2025). The verdict could reshape how accused persons plan pre-arrest bail across India.
What Is the Mohammed Rasal Case About?
The Kerala High Court granted pre-arrest bail to the petitioners even though they had not approached the Sessions Court first. The Supreme Court made their interim protection absolute, so they stay safe from arrest. Still, the bench used the case to ask a bigger question: should High Courts hear such pleas directly at all? An earlier bench of Justices Nath and Mehta had already sent the issue to a three-judge bench, citing conflicting decisions.
Why Is the Court Worried About Direct Filing?
Both courts share concurrent jurisdiction under Section 482 of the BNSS, 2023 (Section 438 of the CrPC). But the earlier bench felt hierarchy points to the Sessions Court first. Its reasoning was practical. Direct filing could flood High Courts and create a chaotic situation, whereas many applications are allowed at the Sessions level itself, which works as a filter. Records are also easier to access there, and disposal tends to be faster. The Court added that High Courts can still be approached in extraordinary situations.
When Can You Go Straight to the High Court?
Senior Advocate Siddharth Luthra, assisted by Arudhra Rao, appeared as amicus curiae and agreed that the Sessions Court should be the first stop.
They suggested four exceptions:
The accused lives outside the Sessions Court's territorial jurisdiction.
Local disturbances, strikes, hostility or a real fear of grievous harm make approaching the Sessions Court impractical.
A medical or similar emergency stops the accused from going there.
The court of first instance is a special or designated court dealing with a special or local law.
The Kerala High Court Advocates Association, represented by Senior Advocate S. Nagamuthu, argued the opposite: the provision creates no hierarchy, so the High Court's discretion cannot be curtailed.
Is the Supreme Court Itself Divided?
Yes, and that is why a larger bench is involved. In Gurbaksh Singh Sibbia (1980), a five-judge bench read the anticipatory bail provision in light of Article 21. Later benches have pulled in different directions. In Manjeet Singh v. State of Uttar Pradesh (2025), Justices Sanjay Kumar and N.V. Anjaria held that going to the Sessions Court first is not necessary. Justices Vineet Saran and B.R. Gavai took a similar view in the 2021 Raghu Rama Krishnam Raju case. But in Jagdeo Prasad v. State of Bihar (2025), Justices Nath and Mehta cautioned High Courts against direct filings. A separate matter, Gauhati High Court Bar Association v. State of Assam, is also pending.
How Do High Courts Across India See It?
Practice varies widely. A five-judge Allahabad High Court bench said in 2020 that direct approach is possible under special circumstances. Karnataka, Punjab and Haryana, and Patna have taken similar views. Jammu and Kashmir and Ladakh treat Sessions Court first as the ordinary practice, with exceptions. Delhi, Himachal Pradesh, Uttarakhand and Andhra Pradesh lean liberal; the Himachal Full Bench held an applicant cannot be compelled to approach the Sessions Judge first. Kerala is split: a Division Bench in Balan (2003) held that Section 438 restricts no one's choice, yet some benches follow it and others do not.
What Should You Do Until the Verdict Arrives?
Nothing is settled yet. Until this bench rules, the cautious route is to approach the Sessions Court first, unless your situation clearly fits one of the exceptions above. If you do go straight to the High Court, record why in your petition. This article is general information, not legal advice, so speak to a criminal lawyer before filing.
Lawttorney.ai search prompt
What is the law on filing anticipatory bail directly before the High Court without approaching the Sessions Court under Section 482 BNSS, and when are exceptions allowed?
FAQs
Can the High Court hear anticipatory bail directly?
Yes, under Section 482 BNSS (Section 438 CrPC) both courts have concurrent jurisdiction. The open question is whether High Courts should ordinarily exercise it.
Was the Kerala petitioners' protection withdrawn?
No. The Supreme Court made the interim protection absolute while reserving the larger question.
Has the Supreme Court given its final ruling?
Not yet. Judgment is reserved, and earlier benches have disagreed with each other.
Which cases justify a direct High Court plea?
The amicus listed four: residence outside jurisdiction, local disturbances, medical emergency, and special courts.
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