Kiran Raj

The Supreme Court of India Division Bench of Justice Vikram Nath and Justice Sandeep Mehta confirmed interim protection earlier granted to two petitioners, making it absolute, and directed them to cooperate fully with the investigation and trial. The Court further clarified that the trial court or State may seek recall of the order if the petitioners cause delay in proceedings. Significantly, the Supreme Court expressed disapproval of the practice of High Courts directly entertaining applications for anticipatory bail under the Bharatiya Nagarik Suraksha Sanhita, 2023, without first moving the Sessions Court. It held that while concurrent jurisdiction exists, litigants should not bypass the Sessions Court except in extraordinary circumstances, and notices have been issued to the High Court of Kerala on this aspect.

The proceedings before the Supreme Court arose from a petition challenging an order of the High Court of Kerala dated 11 March 2025 in Bail Application No. 1485 of 2025. The petitioners had sought pre-arrest bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, formerly Section 438 of the Code of Criminal Procedure. Instead of approaching the Sessions Court, the petitioners directly invoked the jurisdiction of the High Court.

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When the matter reached the Supreme Court, interim protection was granted to the petitioners on 5 May 2025. This interim order shielded the petitioners from immediate arrest pending further consideration of their application. On subsequent hearings, the petitioners’ counsel argued that concurrent jurisdiction was vested in both the High Court and the Sessions Court, making it permissible to directly approach the High Court for anticipatory bail.

The State opposed this contention. Its representatives submitted that the settled practice across several jurisdictions required litigants first to move the Sessions Court for pre-arrest bail. This, it was argued, ensured procedural propriety, enabled the Public Prosecutor of the district to assist the court, and facilitated quick access to case diaries. According to the State, bypassing the Sessions Court not only disrupted judicial hierarchy but also risked burdening High Courts with a flood of direct applications, undermining efficiency.

The Supreme Court examined the records placed before it, including details of the interim protection already in force, and heard arguments from both sides. It also took note of the procedural practices prevailing in different States. The focus of the Court’s scrutiny was twofold: whether the petitioners deserved continued interim protection, and whether approaching the High Court directly under Section 482 BNSS without first seeking relief before the Sessions Court was appropriate.

The Bench recorded: “We are of the opinion that though the concurrent jurisdiction is conferred upon the Sessions Court and the High Court to entertain a prayer for pre-arrest bail under Section 482 of the BNSS (formerly, Section 438 CrPC), the hierarchy of Courts demands that no person seeking such remedy should be encouraged or allowed to directly approach the High Court for exercising jurisdiction under Section 482 of the BNSS (formerly, Section 438 CrPC) by bypassing the jurisdiction of the concerned Sessions Court.”

The Court observed: “The Sessions Judge exercises powers under Section 438 CrPC in relation to all cases registered with the police stations in the particular District. This area-wise distribution of work would make it much more convenient and facilitate expeditious disposal, if the application for pre-arrest bail is first filed before the Sessions Court which would have a direct and first-hand assistance of the concerned Public Prosecutor appointed for that particular District. The Sessions Court would also have an immediate access to the Case Diary thereby facilitating a better appreciation of facts of the case.”

The Court stated: “If the practice of entertaining the applications for pre-arrest bail directly in the High Court is encouraged, and the parties concerned are not relegated to first approach the Sessions Court concerned, the High Court would be flooded with a spate of pre-arrest bail applications thereby creating a chaotic situation.”

“It is trite that in most of the States, there is a consistent practice requiring the litigant concerned to first approach the Sessions Court for seeking relief of pre-arrest bail and only in the event of denial of such relief, the litigant would be granted access to approach the High Court for seeking such relief. This is, of course, subject to just exceptions and the High Court, for reasons to be recorded, may entertain an application for pre-arrest bail directly in special/extra-ordinary circumstances.”

The order stated: “Taking into consideration the facts and circumstances of the case, we make the said interim order absolute. It goes without saying that the petitioner will continue to extend all cooperation during the investigation and thereafter during the trial.”

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“In the event, the trial Court or the State finds that the petitioners are delaying the conclusion of trial, it will be open for them to approach this Court for recall of this order.”

“Let notices be issued on this aspect to the High Court of Kerala through the Registrar General. We also appoint Shri Sidharth Luthra, learned senior counsel as Amicus Curiae assisted by Mr. G. Arudhra Rao, Advocate, to assist this Court in this matter.”

The Registry was directed to provide necessary papers to the Amicus within three days. The matter was listed for 14 October 2025

Advocates Representing the Parties

For the Petitioners: Mr. K. Rajeev, AOR; Mr. Shinoj K. Narayanan, Adv.; Ms. Niveditha R Menon, Adv.; Ms. Aditya Verma, Adv.; Mr. Tarun Kumar, Adv.
For the Respondents: Mr. Harshad V. Hameed, AOR; Mr. Dileep Poolakkot, Adv.; Mrs. Ashly Harshad, Adv.; Mr. Anshul Saharan, Adv.

Case Title: Mohammed Rasal C. & Anr. v. State of Kerala & Anr.
Case Number: SLP (Crl.) No. 6588 of 2025
Bench: Justice Vikram Nath, Justice Sandeep Mehta