High Courts' Discretion on Anticipatory Bail Under Supreme Court Scrutiny

NEW DELHI – The Supreme Court of India is set to adjudicate a pivotal question of criminal procedure that could reshape the practice of seeking pre-arrest bail across the country: Can High Courts be restricted from entertaining anticipatory bail applications in the first instance, or does the statute grant an unfettered choice to the accused? The matter, now referred to a three-judge bench, pits the principle of judicial self-restraint against the plain text of the law and the fundamental right to personal liberty.

The controversy gained prominence in Mohammed Rasal C v State of Kerala , where a bench of Justice Vikram Nath and Justice Sandeep Mehta expressed reservations about the Kerala High Court's practice of directly hearing anticipatory bail matters. The bench observed that while Section 438 of the Code of Criminal Procedure, 1973 (CrPC) confers concurrent jurisdiction, the ordinary course should be for litigants to first approach the Sessions Court. This procedural preference, the Court suggested, should only be deviated from in exceptional circumstances.

In response to this judicial deliberation, the Kerala High Court Advocates' Association (KHCAA) has robustly defended the existing statutory framework, filing an impleadment application to argue that any curtailment of the High Court's discretion would constitute "judicial overreach, undermining the legislative intent and encroaching upon the fundamental right to personal liberty."

The Core of the Jurisdictional Debate

The central issue revolves around the interpretation of Section 438(1) CrPC (now Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023), which states that a person apprehending arrest may apply "to the High Court or the Court of Session" for a direction of pre-arrest bail.

The KHCAA, represented by Senior Advocates V. Giri and S. Nagamuthu, contends that the use of the disjunctive "or" is a clear and unambiguous reflection of the legislature's intent to provide an applicant with a choice of forum.

"A plain reading of the provision indicates that the legislature has conferred concurrent jurisdiction upon the High Court and the Court of Session to entertain an application for anticipatory bail. The statute does not prescribe any hierarchical restriction or pre-condition requiring an accused person to first approach the Court of Session before invoking the jurisdiction of the High Court," the Association submitted in its application.

This stance is buttressed by the landmark Constitution Bench judgment in Gurbaksh Singh Sibbia v. State of Punjab (1980) , which cautioned against reading extraneous restrictions into Section 438 CrPC that the legislature itself had not imposed. The KHCAA argues that imposing a procedural hierarchy would be an impermissible judicial addition to the statute, thereby fettering a High Court's power and, by extension, an individual's access to justice.

The Amicus Curiae's Stance and Conflicting Precedents

To aid its consideration of the issue, the Supreme Court appointed Senior Advocate Siddharth Luthra as amicus curiae. In his report, Luthra suggested a middle path, opining that High Courts should directly entertain such applications only under four specific exceptional circumstances, thereby advocating for a structured, rather than absolute, discretion.

The complexity of the issue is further highlighted by recent, conflicting orders from the Supreme Court itself.

• In Manjeet Singh v. State of Uttar Pradesh (2024) , a bench of Justice Sanjay Kumar and Justice Augustine George Masih (the source mentioned Justice NV Anjaria, but reports indicate it was Justice Masih) held that it was not mandatory for an accused to first approach the Sessions Court. The Court set aside an Allahabad High Court order that had dismissed an anticipatory bail plea on this preliminary ground.

• Conversely, in Jagdeo Prasad v. State of Bihar (2024) , another bench cautioned the Patna High Court against directly entertaining anticipatory bail pleas, reinforcing the view that litigants should ordinarily be directed to the Sessions Court first.

This judicial dichotomy has created uncertainty, leading to divergent practices across various High Courts and underscoring the need for an authoritative pronouncement from a larger Supreme Court bench.

A View from the States: The Kerala High Court Experience

The debate is not merely academic; it has tangible consequences on legal practice, as illustrated by the history of the Kerala High Court.

In 2003, a single judge in Usman v. S.I. of Police imposed a "salutary procedural self-imposed rule of restriction," directing the registry not to number anticipatory bail applications unless they were accompanied by an order from the Sessions Court or an explanation for bypassing it.

However, this direction was swiftly overruled by a Division Bench in Balan v State of Kerala (2003) . The Division Bench held that the statute confers a clear right on the accused to choose the forum.

"He can choose the forum. He can file the application before either the High Court or the Sessions Court. The statute gives him the right. It imposes no restriction," the Division Bench had ruled.

For two decades, this ruling governed the practice in Kerala. However, the Supreme Court's recent observations in Mohammed Rasal have unsettled this precedent. The KHCAA points out that conflicting orders are now emerging from the High Court itself, with some benches following the Balan precedent ( Venu Gopalakrishnan & Ors. v. State of Kerala ) and others refusing to entertain petitions directly ( Mukesh Murali v. State of Kerala ), creating inconsistency and unpredictability for litigants.

Practical Considerations in the Digital Age

One of the primary arguments for routing bail applications through the Sessions Court is its proximity to the case's origins. It is often argued that the Sessions Court is better positioned to appreciate local nuances and can more readily access case diaries and other documents from the investigating agency.

The KHCAA counters this argument by highlighting the technological advancements that have rendered this concern largely obsolete, at least in Kerala. The Association states that the High Court's integrated online management system and digital portal allow it to "directly requisition instructions, including case diaries and other relevant records from police stations and subordinate courts," ensuring expeditious access to necessary materials.

"Therefore, there is no practical impediment in the High Court entertaining an anticipatory bail at the first instance," the KHCAA asserts.

As the Supreme Court prepares to hear this matter before a larger bench, the legal community watches with keen interest. The eventual ruling will not only clarify the procedural pathway for seeking anticipatory bail but will also serve as a significant statement on the balance between judicial discipline, legislative supremacy, and the fundamental right to liberty enshrined in Article 21 of the Constitution.