The Kerala High Court has addressed the procedural issue of anticipatory bail petitions filed directly before it without first moving the Sessions Court. Traditionally, under the criminal procedure law, both a Sessions Court and a High Court have concurrent jurisdiction to entertain anticipatory bail applications, meaning an accused can seek pre-arrest bail from either forum. However, in recent practice the Kerala High Court has encountered petitions where the applicant did not first obtain vakalath (engagement of counsel) before the Sessions Court, and instead approached the High Court as the initial forum for relief. These procedural patterns have prompted judicial scrutiny and led to conflicting approaches at different times.
In one of its recent decisions, a Single Judge of the Kerala High Court declined to entertain an anticipatory bail plea filed directly before it without the applicant first approaching the Sessions Court. The bench observed that although both the High Court and the Sessions Court possess concurrent jurisdiction under the relevant provisions of the criminal procedural law, the judicial hierarchy and established practice typically require a person seeking anticipatory bail to first approach the Sessions Court. This position was reinforced by reference to the Supreme Court’s observations in a separate matter where the apex court expressed concern about High Courts routinely hearing anticipatory bail matters bypassing the Sessions Court, and noted that in the absence of exceptional circumstances, litigants should first seek relief at the sessions level. Hence, in that instance, the High Court refrained from hearing the bail application on merit and directed that the petitioner should approach the Sessions Court.
The High Court’s stance reflects a judicial emphasis on adhering to procedural hierarchy and ensuring that the Sessions Court’s concurrent jurisdiction is exercised before the High Court intervenes on anticipatory bail issues. The Court’s reasoning took into account the broader concern that direct filings at the High Court stage for routine bail matters could overburden the High Court and undermine the procedural role of subordinate courts. It found that where no special or exceptional circumstances were articulated by the applicant justifying bypass of the Sessions Court, the High Court ought not to entertain the petition as the first forum.
This procedural position has not gone unchallenged. Earlier decisions of the Kerala High Court had taken a different view, holding that anticipatory bail applications filed under the governing law are maintainable directly before the High Court without first moving the Sessions Court, and that the law confers a choice upon the accused to select the forum. In those rulings, the bench emphasized that established precedents of the Supreme Court recognize the liberty of an applicant to choose between the High Court and the Sessions Court for anticipatory bail, and that no statutory provision expressly restricts the right to first approach the Sessions Court before seeking the same relief in the High Court. Such decisions underscored that, in the absence of binding contrary precedent, anticipatory bail pleas filed directly before the High Court are maintainable, and that a High Court may consider the merits of the petition on its own records.
These divergent practices within the Kerala High Court attracted judicial attention at the national level. The Supreme Court in Mohammed Rasal C v. State of Kerala (2025) took note of the “regular practice” in Kerala of entertaining anticipatory bail applications directly at the High Court without the Sessions Court being approached first. The Supreme Court expressed concern that allowing direct filings without any exceptional justification risked undermining procedural discipline and potentially overloading the High Courts with bail applications that might otherwise be resolved expeditiously at the Sessions Court level. The apex court indicated that while concurrent jurisdiction exists, litigants should ordinarily apply first to the Sessions Court, and only in exceptional or extraordinary circumstances should the High Court entertain such applications at first instance. In connection with this issue, the Supreme Court issued notice to the Kerala High Court and appointed an amicus curiae to assist in examining the legal and procedural aspects, and subsequently referred the matter to a three-judge bench for authoritative resolution on the question of whether approaching the Sessions Court first should be mandatory or remain a matter of choice.
Within this evolving jurisprudential context, the Kerala High Court in some recent orders has aligned itself more closely with the Supreme Court’s emphasis on procedural hierarchy, refusing to hear anticipatory bail applications filed directly without prior recourse to the Sessions Court when no exceptional reasons were advanced. In doing so, the High Court has underscored the importance of a structured approach to anticipatory bail, balancing the concurrent jurisdiction conferred by law with respect for judicial hierarchy and the efficient administration of justice.
The ongoing debate and conflicting rulings have also drawn responses from legal practitioners. The Kerala High Court Advocates’ Association has raised concerns against curtailing the High Court’s discretion to entertain anticipatory bail pleas directly, arguing that statutory provisions confer concurrent jurisdiction and allow litigants to choose their forum without restriction. This controversy underscores a larger discussion in the legal community regarding procedural propriety, the rights of applicants seeking pre-arrest relief, and the appropriate roles of Sessions Courts and High Courts in addressing anticipatory bail applications.
The procedural issue of whether anticipatory bail pleas must first be presented to the Sessions Court before being heard by the High Court remains under active consideration at the Supreme Court level, with a reference to a larger bench expected to provide definitive guidance on the matter.
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