Supreme Court Terms ‘Judicial Impropriety’ | Criticises Kerala High Court For Modifying Bail Conditions While Bail Order Was Under Challenge In Apex Court
Kiran Raj
The Supreme Court of India Division Bench of Justice J.K. Maheshwari and Justice Vipul M. Pancholi has stayed the orders of the High Court of Kerala that modified the conditions of anticipatory bail granted to the accused. The Court directed that all orders passed by the High Court permitting foreign travel and release of passport during the pendency of the special leave petition shall remain stayed. Further, the Court issued notice to the accused on why the pre-arrest bail should not be cancelled due to concealment of facts and ordered immediate surrender of her passport.
The case arose from anticipatory bail granted by the High Court of Kerala to an accused facing multiple criminal proceedings. The complainant challenged the order granting anticipatory bail by filing a special leave petition before the Supreme Court on 24 March 2025. Notice was issued on 9 April 2025, and the respondent-accused entered appearance on 16 May 2025.
Subsequently, on 6 July 2025, the accused filed Criminal M.C. No. 6178 of 2025 before the High Court seeking permission to travel abroad in view of conditions imposed in the bail order. The application stated that travel was required for immigration-related requirements. The High Court registered the case on 10 July 2025, noting that maintainability would be considered at admission and posting the matter for 14 July 2025. On that date, the High Court observed the petition was maintainable and posted the matter to 7 August 2025.
On 7 August 2025, the High Court recorded that the prayer was to permit travel abroad for resuming employment. The Public Prosecutor objected that separate modification petitions should have been filed in respect of each bail application. The High Court accepted the objection in principle but directed that the accused may instead pay separate court fees for each bail application, listing the matter for 11 August 2025.
On 12 August 2025, the High Court considered the accused’s plea. It recorded that she was an accused in 31 crimes registered at Chingavanam Police Station for offences under Sections 406 and 420 of the Indian Penal Code and Sections 21 and 23 of the Banning of Unregulated Deposit Schemes Act, 2019. While granting bail in all 31 cases, the High Court had earlier imposed conditions, including requiring prior permission of the jurisdictional court before leaving India. The accused sought modification of this condition.
The Public Prosecutor argued that her presence was necessary for investigation and trial given the number of pending cases. The High Court, however, stated that continuation of the restriction could result in expiry of her visa and held that pendency of cases could not bar movement of a citizen. Accordingly, the High Court deleted Condition No. 4 of the bail orders and permitted travel abroad for two weeks, subject to filing of affidavits, providing travel details and documents, ensuring presence before court as directed, and filing a memo upon return. The Court directed that breach of these conditions would result in cancellation of permission.
Thereafter, on 22 August 2025, the accused filed Criminal M. Appl. No. 1 of 2025 in Criminal M.C. No. 6178 of 2025 seeking clarification for release of her passport. The High Court on 23 August 2025 held the submission was well founded since the application had contained a prayer for release of the passport, which had not been addressed earlier. It disposed of both applications by clarifying that the passport should also be released in light of permission to travel.
During this period, the special leave petition challenging the anticipatory bail was pending before the Supreme Court. On 14 July 2025, counsel for the respondent-accused appeared before the Supreme Court and sought time to file a counter affidavit, which was granted. On 25 July 2025, the Supreme Court was informed that while the respondent-accused remained in India, other co-accused family members had already left the country. The Court sought information from the State about registered cases and allegations, listing the matter for 25 August 2025. On that date, the State was directed to file an affidavit and the matter was posted for orders.
Upon hearing, the Supreme Court considered the orders of the High Court permitting foreign travel and release of passport. It noted that these orders were passed during the pendency of the special leave petition where the bail order itself was under challenge.
The Supreme Court recorded its view by referring to established principles of judicial propriety. It cited earlier precedent in Tirupati Balaji Developers (P) Ltd. & Ors. v. State of Bihar & Ors., (2004) 5 SCC 1, which elucidates the relationship between the Supreme Court and the High Courts observing: “Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Courts, both are courts of record. The High Court is not a court ‘subordinate’ to the Supreme Court… The High Court exercises power of superintendence under Article 227 of the Constitution over all subordinate courts and tribunals; the Supreme Court has not been conferred with any power of superintendence. If the Supreme Court and the High Courts both were to be thought of as brothers in the administration of justice, the High Court has larger jurisdiction, but the Supreme Court still remains the elder brother.”
The Court further recorded: “Appeal implies in its natural and ordinary meaning the removal of a cause from any inferior court or tribunal to a superior one for the purpose of testing the soundness of decision and proceedings of the inferior court or tribunal. The superior forum shall have jurisdiction to reverse, confirm, annul or modify the decree or order of the forum appealed against… Failure on the part of the latter to carry out such directions… would be destructive of the hierarchical system in administration of justice.”
Applying this principle, the Court stated: “Where the order granting anticipatory bail by the High Court was impugned in the instant special leave petition and this Court was seized of the matter, an order modifying the conditions of anticipatory bail set out therein, runs contrary to the principles of judicial propriety and comity.”
The Court also referred to Chhavi Mehrotra v. Director General, Health Services, observing: “It is a clear case where the High Court ought not to have exercised jurisdiction under Article 226 where the matter was clearly seized of by this Court… Judicial discipline would require that in a hierarchical system it is imperative that such conflicting exercise of jurisdiction should strictly be avoided.”
The Supreme Court noted that though the Criminal M.C. filed before the High Court mentioned the pendency of the SLP, the fact of filing of such application and orders thereon was not brought to its notice. The Court recorded: “The Counter Affidavit of respondent no. 1 - accused in the present matter has been filed on 14.07.2025 without making a whisper about any such application for modification being filed. We would like to reserve our views in respect of the conduct of the respondent no. 1 - accused for the time being, while expressing our grave displeasure.”
The Supreme Court issued multiple directions. It held: “In view of the foregoing, in our view, the orders passed by the High Court modifying the order which is under challenge before this Court, during the pendency of this special leave petition, is contrary to the judicial propriety and discipline which is expected from the High Court. Considering the aforesaid, we stay all the orders passed by the High Court in Criminal Miscellaneous Case No. 6178 of 2025 and in Criminal Miscellaneous Application No. 1 of 2025 until further orders.”
“Let notice be issued to respondent no. 1 - accused as to why, on account of concealment of facts, the protection of pre-arrest bail as allowed by the order impugned, should not be cancelled on account of her conduct. The response be filed within three weeks attaching all the relevant documents produced before the High Court or before the concerned trial Court.”
“In the meanwhile, respondent No. 1 - accused shall immediately surrender her passport and she shall not leave India without the permission of this Court.”
The case was directed to be listed for further orders on 26 September 2025.
Advocates Representing the Parties
For the Petitioners: Mr. V Chitmbaresh, Sr. Adv.; Mr. Jogy Scaria, AOR; Mr. C Govind Venugopal, Adv.; Mr. E Krishna Perumal, Adv.
For the Respondents: Mr. Ragenth Basant, Sr. Adv.; Mr. Bijo Mathew Joy, AOR; Ms. Hina Bhardwaj, Adv.; Ms. Gifty Marium Joseph, Adv.; Mr. Harshad V. Hameed, AOR; Mr. Dileep Poolakkot, Adv.; Mrs. Ashly Harshad, Adv.; Mr. Anshul Saharan, Adv.
Case Title: Sreeja D G & Ors. v. Anitha R. Nair & Anr.
Case Number: SLP (Crl.) Nos. 6677-6681 of 2025
Bench: Justice J.K. Maheshwari, Justice Vipul M. Pancholi
