Supreme Court to Clarify Procedure for Anticipatory Bail Application

Case Title: Mohammed Rasal C & Anr. Versus State of Kerala & Anr., Slp (Crl.) No. 6588/2025.

Introduction

In a development with major consequences for criminal procedure throughout India, the Supreme Court has sent the vital issue of whether High Courts can directly consider anticipatory bail requests without the applicant first going to the Sessions Court to a three-judge bench.

The two-judge bench of the Supreme Court, Justice Vikram Nath and Justice Sandeep Mehta, made this reference while examining Mohammed Rasal C v State of Kerala, signifying a crucial point in elucidating the procedural order in anticipatory bail cases under Section 438 of the Code of Criminal Procedure (CrPC), now re-established as Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The Core Issue: Hierarchy or Concurrent Jurisdiction?

Central to the issue is a jurisdictional question that has persistently split both courts and practitioners:

Is it possible for a person to directly petition the High Court for anticipatory bail, or is it necessary to first seek relief from the Sessions Court? 

Although Section 438 (now 482 BNSS) provides concurrent jurisdiction to both courts, the common practice in many states has been to initially approach the Sessions Court, reserving the High Court’s involvement in exceptional or urgent situations.

Nevertheless, some High Courts, particularly the Kerala High Court, have been considering anticipatory bail requests directly, resulting in judicial disparities and demands for clarification from the Supreme Court.

Supreme Court’s Observation: ‘Ordinarily, Sessions Court First’

When the case was presented to the current bench in September, the Supreme Court had shown significant discontent with the Kerala High Court's routine of accepting such petitions directly.

The Court noted that although the jurisdiction might be concurrent legally, the hierarchical structure of procedure necessitates that anticipatory bail applications should typically be submitted to the Sessions Court initially.

"The bench noted that direct access to the High Court should be limited to extraordinary cases," indicating a reinstatement of procedural order and deterring litigants from choosing forums that may be more advantageous.

The Court’s worry arises not from jurisdictional issues but from the practical effects of skipping the Sessions Court: it could overwhelm High Courts, disturb judicial hierarchy, and undermine the aim of the two-tier system established by the legislature.

Role of Amicus Curiae and KHCAA:

Acknowledging the importance of the issue at a national level, the Court designated Senior Advocate Siddharth Luthra as amicus curiae to provide assistance in the case. Luthra, a prominent figure in criminal law, presented a comprehensive report detailing when High Courts ought to apply direct jurisdiction.

As per his suggestions, High Courts ought to directly consider anticipatory bail requests only in four unique situations, including:

• When there exists a distinct and immediate danger of arrest compromising personal freedom;

• When reaching out to the Sessions Court is unfeasible or pointless, like in situations with pervasive prejudice or intimidation;

• When the situation raises significant legal issues or matters of public concern; or

• When remarkable urgency or unusual circumstances warrant prompt High Court action.

In the most recent hearing, Luthra proposed that due to the constitutional and national implications, the matter ought to be referred to a three-judge panel for a definitive interpretation.

The Kerala High Court Advocates Association (KHCAA), through Senior Advocate S. Nagamuthu, has requested to be included, highlighting the importance of maintaining access to justice and procedural adaptability in unique situations.

Supreme Court’s Direction:

The bench accepted the submissions and directed that the matter be presented to a three-judge bench. 

“This issue needs to be addressed by a panel of three judges.” "The Court directed that the matter may be listed when the three-judge bench is formed." 

This referral guarantees that the expanded bench will definitively resolve the longstanding issue and offer essential clarity to litigants and courts regarding the correct procedural steps for anticipatory bail.

The Broader Legal Context:

The discussion on anticipatory bail jurisdiction highlights a broader conflict between procedural adaptability and judicial restraint.

Although the CrPC and the BNSS provide concurrent powers, the legislative purpose of a two-tier system is evident: to permit Sessions Courts to address the majority of bail issues, while reserving High Court involvement for exceptional or extraordinary situations.

In practice, though, variations among High Courts have resulted in uneven application, where some accept direct petitions while others mandate the exhaustion of lower remedies initially.

This lack of consistency has generated ambiguity for litigants, tendencies to engage in forum shopping, and heightened pressure on High Courts. The anticipated ruling from the three-judge bench is expected to provide doctrinal clarity and consistent procedural discipline throughout jurisdictions.

Way forward: Restoring Procedural Balance:

At Lawttorney, we consider this referral an essential move toward aligning procedural justice with the availability of constitutional remedies.

Anticipatory bail acts as a safeguard for individual freedom, yet it must function within the framework of due process. The Supreme Court’s method, promoting a structured hierarchy while preserving individual rights, demonstrates the equilibrium between efficiency and fairness that the justice system aims to uphold.

By submitting the issue to a larger bench, the Court has acknowledged the necessity for consistency and also reaffirmed that maintaining procedural propriety acts as a protection of liberty. 

The upcoming ruling will probably establish the limits of judicial discretion and influence the future of anticipatory bail law in India, guaranteeing that justice stays both accessible and orderly.

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