Can we file anticipatory bail directly in High Court, bypassing Sessions Court? SC Reserves Judgment

Since anticipatory bail application can be filed before both Sessions Courts and High Courts, can we file anticipatory bail directly in High Court, bypassing Sessions Court? The Supreme Court has reserved judgment in Mohammed Rasal C v. State of Kerala on whether a High Court can directly entertain an application for anticipatory bail (pre-arrest bail) when the applicant has not first approached the Sessions Court. The matter has been heard by a bench of Justice Vikram Nath, Justice Sandeep Mehta and Justice Aparesh Kumar Singh. 

Can we file Anticipatory Bail directly in High Court? - Background 

The case is a challenge to an order of the Kerala High Court. That order granted pre-arrest bail to the petitioners, although they had not approached the Sessions Court at the first instance. The Supreme Court had earlier made the interim protection absolute in 2025 CaseBase(SC) 5703. It also raised the larger question of whether High Courts should directly entertain such applications. When the matter was first heard, a bench of Justice Nath and Justice Mehta disapproved of High Courts directly entertaining these applications. It then referred the matter to a three-judge bench because of conflicting decisions. 

In that earlier order, the bench noted that the Sessions Court and the High Court have concurrent jurisdiction (both courts can hear the same matter) under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 438 of the Code of Criminal Procedure). It said the judicial hierarchy still requires a person to approach the Sessions Court first. The bench gave these reasons: 

• If direct filing in the High Court is encouraged, High Courts could be flooded with pre-arrest bail applications.
• Many such applications are likely to be allowed at the Sessions Court level, which acts as a filter before the matter reaches the High Court.
• Approaching the Sessions Court is more convenient because of easier access to records and jurisdictional ease. It also allows quicker disposal. 

The bench added that High Courts can be approached directly in extraordinary situations. It also observed that in most States, the practice of approaching the Sessions Court first is consistent. 

Earlier Decisions on Anticipatory Bail by High Court

The earlier bench noted that a five-judge bench in Gurbaksh Singh Sibbia v. State of Punjab (1980 CaseBase(SC) 263) had held that the anticipatory bail provision must be interpreted in light of Article 21 of the Constitution. 

The Supreme Court has expressed differing views on the question: 

• Manjeet Singh v. State of Uttar Pradesh (2025 CaseBase(SC) 8540): A bench of Justice Sanjay Kumar and Justice N.V. Anjaria observed that an accused need not first approach the Sessions Court. It set aside an Allahabad High Court order that had refused to entertain a bail application because the Sessions Court was not first approached.
• Kanumuri Raghuarama Krishnam Raju v. State of Andhra Pradesh (2021 CaseBase(SC) 907): A bench of Justice Vineet Saran and Justice B.R. Gavai granted anticipatory bail to an MP after the High Court refused on the ground that the Sessions Court had not been approached. The bench stated that both courts exercise concurrent jurisdiction and a plea cannot be rejected only because the High Court was approached first.
• Jagdeo Prasad v. State of Bihar (2025): A bench of Justice Nath and Justice Mehta set aside an anticipatory bail order of the Patna High Court. It cautioned High Courts against directly entertaining such applications and said litigants should ordinarily be directed to approach the Sessions Court first. 

A separate matter on the same question, Gauhati High Court Bar Association v. State of Assam & Ors., has been pending before the Supreme Court since 2023. A bench of Justice Manoj Misra and Justice Aravind Kumar is considering whether High Courts can refuse to entertain anticipatory bail if the Sessions Court has not first been approached. The Gauhati High Court had held that the litigant must first exhaust the remedy before the Sessions Court. The Supreme Court stayed that judgment when it was challenged. 

Views of High Courts 

• Allahabad: In March 2020, a five-judge bench held that a person may move the High Court without first approaching the Sessions Court under "special circumstances". The judge must assess whether such circumstances exist in the case.
• Karnataka, Punjab & Haryana and Patna: These High Courts have taken similar views.
• Jammu & Kashmir and Ladakh: The High Court held that Section 438 gives concurrent jurisdiction. As ordinary practice, it will not entertain such applications unless the Sessions Court remedy has been exhausted or exceptional circumstances exist.
• Delhi: The High Court has held that the provision cannot be interpreted narrowly to restrict the jurisdiction of either court.
• Himachal Pradesh: In Mohan Lal & others v. Prem Chand & others, a Full Bench held that an applicant cannot be compelled to apply to the Sessions Judge before approaching the High Court.
• Uttarakhand and Andhra Pradesh: These High Courts have taken a similar stand.
• Kerala: In Usman v. S.I. of Police (2003 CaseBase(KER) 73), a single judge held that the High Court should not ordinarily exercise jurisdiction. He directed the Registry to number applications under Sections 438 and 439 CrPC only if accompanied by a Sessions Court order or a petition explaining why that court was not approached. In Balan v. State of Kerala (2003 CaseBase(KER) 542), a Division Bench overruled those directions and held that Section 438 does not restrict the choice. Some benches of the High Court follow Balan (2003 CaseBase(KER) 542), while others do not.